Home builders group takes interest in Wake Forest charter school dispute

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  • The N.C. Home Builders Association supports a charter school operator's legal fight against the town of Wake Forst. The dispute sits now with the N.C. Supreme Court.
  • The charter operator is urging the state's highest court to overturn a 2-1 decision last summer from the N.C. Court of Appeals. Plaintiffs argue that Wake Forest abused its authority when deciding to block a new charter school in 2020.
  • The case is unlikely to impact Wake Preparatory Academy, which moved into a different location during the ongoing legal fight.

A group representing N.C. home builders is supporting a charter school operator in its legal fight with the town of Wake Forest. The state Supreme Court will hear the case in the months ahead.

In Schooldev East v. Town of Wake Forest, the plaintiff argues that town commissioners abused their regulatory authority in 2020 to block a proposed charter school. A split 2-1 state Appeals Court panel upheld the town’s decision in July 2022.

The N.C. Home Builders Association filed a friend-of-the-court brief Friday in the case. Home builders raised their own concerns about Wake Forest’s actions.

“The question of what notice is required to a permit applicant prior to the government making a final decision that may determine the fate of a development project is of extreme importance to the NCHBA and its members who regularly appear before local government administrators and boards asking for development permission,” according to the brief.

“This case presents issues of critical importance to the homebuilding industry because it impacts the extent to which a project can be frustrated by lack of notice of issues important to a thumbs up or down on a development application,” home builders’ lawyers wrote. “Moreover, this case presents whether a government can impose the burden on developers and homebuilders of installing offsite infrastructure with its corresponding implications to costs, affordability of housing and the barriers presented by the likely need to acquire additional right of way outside a project’s boundaries.”

For the home builders, one of the case’s main legal issues involves “Whether the Town Commissioners violated their duty to be neutral and impartial decision makers in the applicable quasi-judicial proceeding when they … denied the development permit applications on claims or issues not argued by any party appearing at the hearing and without either providing notice of such claims or issues to the permit applicant or providing the school an opportunity to rebut or offer evidence in defense of such claims or issues, including a chance to offer development conditions in satisfaction of the new contentions.”

The case also addresses “whether a local government can require a developer applicant for subdivision approval to be responsible for the construction of offsite improvements,” according to home builders.

The home builders’ brief arrived on the same day that the N.C. Coalition of Charter Schools contributed to the legal proceedings. The charter school group’s friend-of-the-court brief criticized the state Appeals Court’s 2022 ruling supporting the town.

The state Supreme Court agreed in April to take the case. The outcome of the legal dispute is unlikely to affect the school, Wake Preparatory Academy, which chose a different location after losing an earlier round in the courtroom battle.

“The issues implicated by this case are of critical importance, as they may affect the standards and the sufficiency of evidence required by local governments to deny or grant petition applications relating to the development of charter schools,” wrote the charter school coalition’s lawyers, led by former Republican gubernatorial candidate and Charlotte Mayor Richard Vinroot. “The interpretation of the statutes and evidence in this case will impact the consideration of permit applications related to charter schools throughout North Carolina.”

The Appeals Court split 2-1 in July 2022 when it issued its ruling supporting Wake Forest’s decision to block a new charter school. The coalition’s brief highlighted dissenting Judge John Tyson’s assessment that “the Commissioners of the Town of Wake Forest … ‘violated their oath to be an impartial decision maker in a quasi-judicial proceeding’ when they improperly denied Schooldev’s permit applications.”

“It is important to keep in mind what the Town’s decision should not have been about: the merits of charter schools or school choice,” coalition lawyers wrote. “Yet, the record demonstrates that the Town’s decision to deny Schooldev’s permit applications was based on a desire to prevent a new charter school from being built — an issue that was not before the Town and over which the Town is supposed to have no role.”

Schooldev’s lawyers also submitted their latest brief in the case Friday.

“Unmoored from the record and unburdened by findings of fact, the Town has exceeded its statutory authority in this case in a multitude of ways,” according to Schooldev’s court filing. “It relied on the wrong set of local regulations when denying Schooldev’s subdivision. It violated the statutory prohibition on requiring off-site improvements. Faced with undisputed record evidence that Schooldev complied with the local sidewalk requirement, the Town denied the subdivision and site plan anyway. …”

“The main opposition to Schooldev came from charter school opponents, and the town Board of Commissioners made public statements indicating they agreed with the opponents’ concerns,” the brief continued. “The Town’s vague and shifting explanations for the denials have done little to ease fears that the Town made the decision with an unstated antipathy for charter schools.”

In November 2019, developers submitted plans to Wake Forest that included Wake Prep, a proposed K-12 charter school. Wake Forest officials rejected the plans in October 2020, citing concerns about a lack of pedestrian and bicycle “connectivity to adjoining neighborhoods.”

The developer sued Wake Forest. Superior Court Judge Vince Rozier upheld the town’s decision in April 2021.

Wake Prep eventually chose another location in an existing building on Capital Boulevard in Youngsville. But an Appeals Court panel ruled unanimously in July 2022 that Wake Forest could not have the lawsuit tossed out as moot.

Judges Jeff Carpenter and John Arrowood still ruled in favor of town officials. “[W]e conclude Petitioner failed to present competent, material, and substantial evidence” to get necessary development permits “because the evidence did not satisfactorily show Petitioner met the Town’s ordinances requiring pedestrian connectivity to surrounding residential areas and accessibility by schoolchildren to the school,” Carpenter wrote.

Tyson’s dissent cited Wake Forest’s decision to ignore plans “to build a 10-foot-wide multi-use path along the front of the property, inside the public right of way.” That path “would be for pedestrians and cyclists to use as a public sidewalk and path to a neighborhood located at the property’s southern point.”

“The Commissioners violated their oath to be an impartial decision maker in a quasi-judicial proceeding,” Tyson wrote. “The decision must be based solely on the evidence presented. The Board ignored the evidence and merely substituted their subjective and unqualified hunches and notions to place an unlawful burden of persuasion upon Petitioner. This they cannot lawfully do.”

Appellate judges disagreed about the proper application of a state law, N.C. General Statute § 160A-307.1. It limits city government requirements for “street improvements related to schools.”

Carpenter and Arrowood did not believe the law limited Wake Forest’s requirements in the Wake Prep case. Tyson disagreed.

“The Town cannot require more as a condition of development approval unless they are ‘required for safe ingress and egress to the municipal street system and that are physically connected to a driveway on the school site,’” Tyson wrote. “This limiting language of the statute could not be plainer.”

The N.C. Supreme Court has not yet scheduled the Schooldev case for oral arguments.