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                                               PUBLISHED

                               UNITED STATES COURT OF APPEALS
                                   FOR THE FOURTH CIRCUIT


                                               No. 21-1713


        EPCON HOMESTEAD, LLC,

                             Plaintiff - Appellant,

                      v.

        TOWN OF CHAPEL HILL,

                             Defendant - Appellee.


        Appeal from the United States District Court for the Middle District of North Carolina, at
        Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:20-cv-00245-NCT-JLW)


        Argued: December 9, 2022                                         Decided: March 20, 2023


        Before GREGORY, Chief Judge, THACKER, and RUSHING, Circuit Judges.


        Affirmed by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Thacker
        joined, and Judge Rushing wrote a separate opinion concurring in the judgment.


        ARGUED: Jeffrey Lawrence Roether, MORNINGSTAR LAW GROUP, Durham, North
        Carolina, for Appellant. Dan M. Hartzog, Jr., HARTZOG LAW GROUP LLP, Raleigh,
        North Carolina, for Appellee. ON BRIEF: William J. Brian, Jr., MORNINGSTAR LAW
        GROUP, Durham, North Carolina, for Appellant. Katherine M. Barber-Jones, HARTZOG
        LAW GROUP LLP, Raleigh, North Carolina, for Appellee.
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        GREGORY, Chief Judge:

               This case presents a narrow question: For plaintiffs challenging the constitutionality

        of a land-use condition, when does their Section 1983 claim accrue? Under Fourth Circuit

        precedent, a cause of action for a constitutional tort normally vests when the plaintiff knows

        or has reason to know of the injury. But Epcon Homestead, LLC (“Epcon”) believes its

        case warrants a departure from that standard.

               The Town of Chapel Hill, North Carolina (the “Town”) requires housing developers

        seeking a special use permit to set aside a portion of their developments for low-income

        residents or pay a fee in lieu of that condition. In 2015, Epcon initiated its purchase of

        property subject to the fee-in-lieu. Epcon paid the requisite fee installments, commenced

        the development project, and sold each parcel.          After Epcon satisfied its final fee

        installment in March 2019, it brought this lawsuit under a state cause of action to recover

        the whole sum it had paid to the Town and alleged federal takings and due process

        violations.

               The district court never reached those claims, however, because it determined that

        Epcon waited too long to pursue them. Given that at least four years had passed between

        when it first learned of the special use permit condition and when Epcon filed its complaint,

        the district court dismissed the case under North Carolina’s three-year statute of limitations

        for personal injury claims. Epcon promptly appealed, asking this Court to hold that the

        statute of limitations on Epcon’s federal claims began instead when it paid the fee

        installments. For the reasons to follow, we decline Epcon’s invitation and affirm the

        district court’s ruling.

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                                                     I.

                                                     A.

               The Town adopted Section 3.10 of its Land Use Management Ordinance (“LUMO”)

        in 2010 “to create and preserve affordable housing opportunities for its residents” and “to

        provide a structure for cooperative participation by the public and private sectors in the

        production of affordable housing.” LUMO § 3.10; J.A. 87. This “inclusionary zoning”

        provision requires developers to dedicate a certain percentage of their proposed

        construction projects to affordable housing units. Id. § 3.10.2(a). As an alternative, the

        Town Council retains the discretion to approve, among other things, the payment of a fee

        in lieu of the set-aside. Id. § 3.10.3(d)(4); J.A. 91. The inclusionary zoning provision

        applies to any new residential development project that will construct at least five single-

        family dwellings within the Town’s jurisdiction. Id. § 3.10.1(a).

               The Courtyards of Homestead is a housing development located in the Town

        comprising sixty-three single-family housing units, bringing it within the inclusionary

        zoning provision’s ambit. In October 2014, before Epcon acquired the property, Epcon’s

        “affiliates” 1 received a special use permit for the Courtyards of Homestead. Rather than

        abiding by the set-aside requirement, the affiliates agreed to pay the Town a $803,250 fee-

        in-lieu over several installments. The fee-in-lieu was a condition of the special use permit,

        without which the project could not be completed. Only after the installments were paid

        would the Town issue the certificates of occupancy for each development unit.


               1
                Epcon’s First Amended Complaint refers to the former owners of the land as its
        predecessors in interest and affiliates without further specification. See J.A. 73, 77.
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               Following those negotiations, Epcon purchased the property “through several

        transactions” beginning in 2015. Epcon constructed sixty-three single-family units on

        residential lots as planned and sold each unit. Epcon also fulfilled its financial obligations,

        making its first payment in July 2017 and its final payment in March 2019. In return, the

        Town issued the necessary certificates of occupancy for the finished units.

                                                      B.

               Once Epcon met its obligations under the special use permit and sold the sixty-three

        Courtyards of Homestead lots, it filed a civil complaint on October 24, 2019 in North

        Carolina state court. It initially brought claims under North Carolina statutory and common

        law to recover the $803,250 it had paid the Town, as well as the reimbursement of

        attorneys’ fees. Epcon then filed an amended complaint adding new claims under state and

        federal law. It claimed that the Town Council’s special use permit condition was ultra

        vires under North Carolina law and violated the state constitution. Epcon also invoked 

, arguing that the fee-in-lieu was an unconstitutional taking under the Fifth

        Amendment and a due process violation under the Fourteenth Amendment. The Town then

        removed to federal court and moved to dismiss under Federal Rule of Civil Procedure 12(b)(6).

               The district court dismissed the lawsuit because it concluded that the statute of

        limitations had run on the federal causes of action. Applying a three-year statute of

        limitations, the court first determined that a § 1983 claim accrues “when a plaintiff knows

        or has reason to know of the injury that is the basis of the action.” J.A. 533 (citation

        omitted). Then the district court found that “Epcon knew or had reason to know of the

        [inclusionary zoning provision’s] mandates, including the fee-in-lieu alternative, certainly

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        by the time the [special use permit] was issued in October 2014, when it—or its affiliates—

        agreed to abide by the Ordinance’s terms.” J.A. 534. Therefore, the court held that

        “whether the limitations period began accruing . . . when Epcon acquired the real property

        beginning in 2015, or at an earlier date not articulated on the face of the Amended

        Complaint, the three-year statute of limitations expired prior to Epcon bringing its claims

        in October 2019.” Id. Because the court dismissed the federal claims as time-barred, it

        declined to exercise supplemental jurisdiction over the state-law claims. Therefore, it

        dismissed those claims without prejudice to renew in state court.


                                                    II.

               We review the grant of a motion to dismiss a complaint for failure to state a claim

        under Rule 12(b)(6) de novo. U.S. ex rel. Oberg v. Pa. Higher Educ. Assistance Agency,

        

 (4th Cir. 2014). Dismissal is proper if the well-pleaded facts of the

        complaint, taken in the light most favorable to the plaintiff and excluding “unwarranted

        inferences, unreasonable conclusions, or arguments,” fail to state a plausible claim for

        relief. 

 (citations omitted). The Court may also consider documents attached to the

        complaint or incorporated by reference, including those attached to the motion to dismiss,

        so long as they are integral to the complaint and authentic, and may take judicial notice of

        matters of public record. See 

 Claims may be dismissed at the Rule 12(b)(6) stage based

        upon an affirmative defense, such as the statute of limitations in this case, where the

        relevant facts “clearly appear on the face of the complaint.” Briscoe v. W.A. Chester, LLC,




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, 183 (4th Cir. 2020) (unpublished) (citing Goodman v. Praxair, Inc., 

 (4th Cir. 2007)).


                                                     III.

                                                      A.

               There is no dispute that the applicable statute of limitations for Epcon’s federal

        claim is three years. Because § 1983 does not contain a statute of limitations, “courts

        borrow the statute of limitations from the most analogous state-law cause of action.”

        Owens v. Balt. City State’s Att’y’s Off., 

 (4th Cir. 2014); see also 

(a) (providing that state law acts as a gap-filler where federal statutes are

        “deficient in the provisions necessary to furnish suitable remedies”). In North Carolina,

        the “analogous state limitations period is the three-years limitations period . . . relating to

        personal injury actions.” Nat’l Advert. Co. v. City of Raleigh, 

, 1161–62 (4th

        Cir. 1991); see also 

(5).

               Instead, the parties disagree about when the clock on Epcon’s § 1983 claim began

        to tick. 2 If, as the district court decided and the Town endorses on appeal, Epcon’s claim

        accrued when it first learned that its development project would be encumbered by the fee-



               2
                 There is also a question about whether the Court should consider Epcon’s alleged
        injuries under the Takings and Substantive Due Process clauses or just the Takings Clause.
        Given that both claims stem from the same § 1983 injury, their legal distinctions do not
        bear on the accrual analysis. The underlying injury—the special use permit condition that
        Epcon set aside a certain number of affordable housing units or pay a fee-in-lieu—is the
        same under either theory. See, e.g., Halle Dev., Inc. v. Anne Arundel Cnty., 

 (4th Cir. 2005) (unpublished) (considering a Takings Clause and Equal Protection
        Clause claim as flowing from the same injury for purposes of determining time of accrual).
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        in-lieu condition, then the statute of limitations period was over by the time it filed this

        lawsuit.   However, Epcon challenges this theory.         Epcon argues that the statute of

        limitations did not begin to run until it started making payments because the gravamen of

        its claim is that those payments commenced the intrusion on its constitutional rights.

               “Although courts look to state law for the length of the limitations period, the time

        at which a § 1983 claim accrues ‘is a question of federal law.’” McDonough v. Smith, 

 (2019) (quoting Wallace v. Kato, 

 (2007)). In federal

        court, it is “the standard rule that the [accrual occurs] when the plaintiff has ‘a complete

        and present cause of action,’” that is, when “the plaintiff can file suit and obtain relief.”

        Bay Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal., 

 (1997) (quoting Rawlings v. Ray, 

 (1941)). Put differently, “a

        plaintiff's cause of action accrues, and the limitations period commences, when the plaintiff

        knows or has reason to know of his injury (hence, the ‘standard rule’).” Owens, 

.

               As the Supreme Court has recognized, though, the limitations period on common-

        law torts may not always begin on the date that a plaintiff knows or has reason to know of

        his or her injury. Wallace, 

. Determining when a plaintiff can obtain relief

        requires identification of “the specific constitutional right alleged to have been infringed.”

        McDonough, 

 (internal quotations and citations omitted). As such, the

        Court observed in Wallace that the “standard rule” does not always control the start of the

        limitations period for a § 1983 claim either. 

. Instead, Wallace instructs

        that if the common law provides a “distinctive rule” for determining when the limitations

        period for the analogous common-law tort begins to run, a court must “consider[]” this

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        “refinement” in determining when the limitations period for the plaintiff’s claim under

        § 1983 should commence. Id. at 388–89; see also Owens, 

.

               When this Court has considered § 1983 injuries arising from alleged takings, we

        have not applied the exception recognized by Wallace. Rather, we have held that those

        claims accrued when the plaintiff became aware of the governmental conduct constituting

        the taking. For example, in National Advertising Company v. City of Raleigh, an advertiser

        challenged a city ordinance requiring an advertiser to bring his existing billboards into

        compliance or to remove them before the expiration of a five-and-a-half year “grace

        period.” 947 F.2d at 1160–61. We concluded that the advertiser’s § 1983 Takings Clause

        claim accrued when the ordinance was enacted rather than at the conclusion of the grace period

        because “[i]mmediately upon enactment,” the ordinance created “both substantial interference

        with the property’s primary use so as to affect distinct investment-backed expectations and

        also actual concrete injury accompanying that interference.” Id. 1163–64.

               Then, in Halle Development, Inc. v. Anne Arundel County, a developer conveyed

        land to the county to be used for school facilities, pursuant to an ordinance that entitled

        developers who made such conveyances to negotiate for land development fee credits. 

 (4th Cir. 2005) (unpublished). But the county did not give the developer

        credits in exchange for the land conveyance. 

 When the developer brought a takings

        claim a decade after the conveyance, this Court held that the statute of limitations had run.

        

 at 505–06. We determined that when the developer negotiated the deal, it “knew or

        should have known of this alleged injury when [it] received notice that the County did not

        intend to provide impact fee credits in exchange for the [] Parcel.” 

.

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               The upshot of these decisions is that there is no “distinctive rule” in the Takings

        Clause context to apply for determining when the limitations period for a § 1983 claim

        begins to run. And the “standard rule” that a cause of action under § 1983 is “complete

        and present,” Bay Area Laundry, 

, when the “plaintiff knows or has reason

        to know of his injury,” Owens, 

, applies to Epcon’s claims. In both cases,

        the Court concluded that the claim accrued when the government performed conduct

        causing the injury, thereby notifying the plaintiff of its injury. In National Advertising,

        that notice flowed from the enactment of the use ordinance because it immediately affected

        the advertiser’s existing use of its property. In Halle, the developer received notice when

        it conveyed the land because that transaction effected clear notice to the developer that it

        would not receive impact fee credits as part of the deal.

               Here, Epcon alleges that it suffered an injury under § 1983 stemming from the

        application of an unlawful special use permit condition. As the district court concluded,

        Epcon first had reason to know of this injury no later than 2015, when it began purchasing

        the land subject to the special use permit. Thus, its claim that the permit condition violated

        its rights to just compensation and due process accrued at that point and extinguished three

        years later. 3 By the time Epcon filed suit in October 2019, the sun had set on its federal

        claims.


               3
                Epcon cites Tommy Davis Construction, Inc. v. Cape Fear Public Utility Authority,
        to argue that its constitutional claims accrued when it paid the fee installments. 

, 66–67 (4th Cir. 2015) (concluding that the statute of limitations on the construction
        company’s due process claim stemming from fees it paid for sewage service it never used
        began when it “paid the impact fees under protest”). The construction company in Tommy
        (Continued)
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.

               Resisting this conclusion, Epcon maintains that it “suffered no taking or deprivation

        of any property interest until it was compelled to pay the challenged fees to the Town

        beginning in 2017 as a condition of the Town issuing certificates of occupancy for the

        Project.” Opening Br. at 10. It emphasizes that “[a]t any time prior to that date, Epcon

        could have sold the Property, requested a rezoning of the Property to pursue a non-

        residential use, [or] redesigned the Project in a way that did not implicate the Ordinance’s

        requirements.” 

 Thus, given that “Epcon does not allege a regulatory taking” and

        instead “alleges an unlawful exaction that could not occur unless and until Epcon changed

        the use of the property,” it argues that the claim did not accrue when the special use permit

        was issued. Reply Br. at 6.

               The distinction Epcon attempts to draw between exactions and regulatory takings

        proves little more than that the government need not physically appropriate property to

        enact a taking. Once the government conditions the grant of a land-use permit on the

        surrender of a landowner’s right to just compensation, a Takings Clause claim becomes

        cognizable. See Koontz v. St. Johns River Water Mgmt. Dist., 

 (2013)

        (stating that the principles of takings case law “do not change depending on whether the




        Davis did not challenge the ordinance requiring payment for water sewage service, but
        instead challenged the application of that law to the company for a service it did not use.
        Id. at 65. By contrast, Epcon’s legal theory is that the fees it paid were unlawful because
        the special use permit condition (as negotiated by its affiliates) itself is unconstitutional.
        So, Tommy Davis does not alter our conclusion on this score.
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        government approves a permit on the condition that the applicant turn over property or

        denies a permit because the applicant refuses to do so”); accord Knick v. Twp. of Scott, 

 (2019) (noting that a taking “is complete at the time of the taking”);

        Pakdel v. City & Cnty. of San Francisco, Cal., 

 (2021) (holding that

        a taking is final when “there [is] no question . . . about how the ‘regulations at issue apply

        to the particular land in question’”) (quoting Suitum v. Tahoe Reg’l Planning Agency, 

 (1997)). The fact that the special use permit did not require and simply

        permitted Epcon to develop the land for the use described in the application (subject to the

        condition at issue) is hardly noteworthy—permitting a particular use is an essential feature

        of any permit. Thus, when Epcon learned of the special use permit condition on its recently

        acquired land, its takings claim became actionable.

                                                      2.

               Likewise, Epcon’s argument that each payment constituted a “continuing wrong”

        that tolled the statute of limitations is unpersuasive. State rules on tolling apply when a

        state statute of limitations is borrowed in a federal question case. See Wade v. Danek Med.,

        Inc., 

 (4th Cir. 1999). In North Carolina, the “continuing wrong doctrine”

        extends the limitations period until “the violative act ceases.” Williams v. Blue Cross Blue

        Shield of N.C., 

 (N.C. 2003).           In other words, “the applicable

        limitations period starts anew in the event that an allegedly unlawful act is repeated.”

        Quality Built Homes, Inc. v. Town of Carthage, 

 (N.C. 2018). Epcon

        argues that Quality Built Homes, compels the Court to apply the continuing wrong doctrine

        here. We disagree.

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               In Quality Built Homes, the North Carolina Supreme Court considered whether the

        Town of Carthage had the authority to enact and enforce portions of a water impact fee

        collection ordinance. 

. Thus, “[t]he essence of plaintiffs’ claim against the Town

        [was] that the Town ha[d] exacted unlawful impact fee payments from them.” 

.

        Even though “the [p]laintiffs, in [that] case, who [were] in the business of developing

        property, knew at the moment the Ordinances were passed, that they would be subject to

        the Ordinances’ requirement of the payment of water and sewer impact fees,” 

,

        the court rejected the town’s argument that the continuing wrong doctrine did not apply

        because the “plaintiffs did not sustain any direct injury at the time that the challenged

        impact fee ordinances were adopted[,]” 

. As a result, “since plaintiffs’ injury

        occurred when plaintiffs made the required impact fee payments to the Town,” the court

        concluded that “Quality Built Homes’ claims against the Town accrued” each time it paid

        an impact fee. 

               In relying on Quality Built Homes, Epcon conflates the nature of its state and federal

        law claims. 4 While the essence of Epcon’s state return-of-fees claim is arguably the


               4
                 For the same reason, Bill Clark Homes of Raleigh, LLC v. Town of Fuquay-Varina,
        

 (N.C. Ct. App. 2021), which Epcon cited as additional support for its position,
        is distinguishable. Like Quality Built Homes, the nature of the claim “was, when viewed
        realistically, one resting upon an alleged statutory violation that resulted in the exaction of
        an unlawful payment.” 

 (internal quotations and citation omitted). The Bill Clark
        Homes court was “unable to distinguish the nature of the claim” in its own case from that
        of Quality Built Homes, so the same statute of limitations applied. Id.; see also 

 (“Of
        particular relevance here, our Supreme Court reasoned that it was ‘unable to conclude that
        the one-year statute[s] of limitations set out in N.C.G.S. §§ 160A-364.1 and 1-54(10)’
        applied because the plaintiffs’ claims did ‘not rest upon a challenge to the validity of the
        Town’s zoning or unified development ordinances.’” (emphasis in original) (quoting
        Quality Built Homes, 

 n.7)).
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        unlawful fee payments exacted, its § 1983 injury was inflicted by the special use permit

        condition requiring Epcon to set aside part of its property or pay the fee-in-lieu. Hence,

        any violation of Epcon’s constitutional rights by the Town would have occurred prior to

        when Epcon actually paid the fee installments. As the district court put it, “[t]he payments

        were exactly what the continuing wrong doctrine is not: the continual ill effects from an

        original violation laid out in the [special use permit].” J.A. 536 (cleaned up).


                                                      IV.

               Because Epcon bought the property subject to the special use condition more than

        three years before it finally filed this lawsuit, its federal claims are barred by the statute of

        limitations. Accordingly, we affirm the district court’s dismissal of those claims. Having

        disposed of Epcon’s federal claims, we also affirm the district court’s decision to decline

        supplemental jurisdiction over Epcon’s state-law claims.


                                                                                           AFFIRMED




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        RUSHING, Circuit Judge, concurring in the judgment:

               Epcon’s 

 claim is barred by the three-year statute of limitations,

        see Nat’l Advert. Co. v. City of Raleigh, 

, 1161–1162 (4th Cir. 1991); 

(5), because its cause of action accrued by 2015. Under common-law

        principles, “it is the standard rule that accrual occurs when the plaintiff has a complete and

        present cause of action, that is, when the plaintiff can file suit and obtain relief.” Wallace

        v. Kato, 

 (2007) (internal quotation marks, citations, and brackets

        omitted); see Smith v. Travelpiece, 

, 883 n.4 (4th Cir. 2022) (contrasting a

        discovery rule of accrual). †

               Epcon complains that the Town allegedly imposed an unconstitutional condition on

        its special use permit. See Koontz v. St. Johns River Water Mgmt. Dist., 

        (2013). Applying the standard rule, Epcon’s takings claim and related substantive due

        process claim accrued by 2015, when Epcon first purchased land subject to that permit

        condition.    See 

 (unconstitutional conditions do not “take property” but rather

        “impermissibly burden the right not to have property taken without just compensation”);

        see also 

 (“[T]he monetary obligation burden[s] [the plaintiff’s] ownership of a

        specific parcel of land.”).



               †
                 In the analogous common-law context of trespass, a claim accrued “at ‘the time
        [the trespass] was committed, and not from the time when the full extent of the injury was
        ascertained.’” Smith, 

 (quoting H.G. Wood, A Treatise on the Limitation of
        Actions at Law and in Equity 422 (John M. Gould ed., 3d ed. 1901)); see Robert Brauneis,
        The First Constitutional Tort: The Remedial Revolution in Nineteenth-Century State Just
        Compensation Law, 

, 63, 67–71 (1999) (explaining the history of
        takings claims being asserted as trespass actions).
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               The continuing-wrong doctrine does not help Epcon. As an initial matter, the

        doctrine appears to be one of accrual, not tolling, so federal law controls. See, e.g., Quality

        Built Homes Inc. v. Town of Carthage, 

 (N.C. 2018) (explaining that

        “the ‘continuing wrong’ doctrine” determines when a claim “accrued” because it “does

        nothing more than provide that the applicable limitations period starts anew in the event

        that an allegedly unlawful act is repeated”). Under federal law, “[a] continuing violation

        is occasioned by continual unlawful acts, not continual ill effects from an original

        violation.” Nat’l Advert. Co., 

 (internal quotation marks omitted). Thus,

        if the alleged constitutional violation occurs “in a series of separate acts and if the same

        alleged violation was committed at the time of each act, then the limitations period begins

        anew with each violation . . . .” 

 (internal quotation marks omitted). Epcon’s

        federal claims allege the Town imposed an unconstitutional condition on its permit—a

        single act. Epcon’s payments pursuant to that permit were not repeated constitutional

        violations but rather continual ill effects of the original violation alleged. I therefore concur

        in the Court’s judgment affirming the district court’s dismissal of Epcon’s federal claims.




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