- The North Carolina Supreme Court has ruled against Wake Forest in a dispute that pitted the Wake County town against a charter school developer.
- In a 5-2 decision, the court ruled that Wake Forest should not have a used a local sidewalk rule to block construction of Wake Preparatory Academy in 2020.
- Because Wake Forest's ordinance was ambiguous, courts should have upheld the charter school development plans because of the legal concept of the "free use of land," Justice Trey Allen wrote.
The North Carolina Supreme Court has ruled against the town of Wake Forest in a battle over permits for a charter school. In a 5-2 decision Friday, the court’s Republican majority ruled that Wake Forest should not have used a local sidewalk rule to block the school’s construction in 2020.
“The public policy of North Carolina encourages ‘the free and unrestricted use and enjoyment of land,’” wrote Justice Trey Allen for the court’s majority. “This policy advances our state’s enduring commitment to property rights.”
“At the same time, laws enacted by our General Assembly grant counties and municipalities significant authority to adopt and enforce zoning and other land use ordinances that limit what property owners may do with or on real property. Although this Court will uphold legitimate ordinances, the state’s public policy disfavoring property restrictions influences how we construe unclear or ambiguous ordinance provisions in disputes between property owners and local governments,” Allen wrote. “Specifically, this Court will resolve any well-founded doubts about a provision’s meaning in favor of ‘the free use of land.’”
The dispute between Wake Forest and developer Schooldev East involved a provision of the town’s unified development ordinance. “The Town relied on the provision to deny petitioner’s applications for permits necessary for the construction of a proposed charter school. Because the provision’s meaning is unclear, the Court of Appeals should have construed it in favor of the free use of land,” Allen wrote. “The Court of Appeals instead adopted the Town’s interpretation and ruled against petitioner.”
“When properly construed, the UDO provision does not sustain the denial of petitioner’s applications, which petitioner supported with competent, material, and substantial evidence,” Allen added.
The majority ruled that the case should go back to the Court of Appeals, which must order Wake Forest to approve the construction plans.
Justice Allison Riggs wrote for the court’s two dissenting Democrats.
“[W]e, as appellate courts, understand that we should treat with deference the evidence presented to and found by decision makers,” Riggs wrote, citing a map of the proposed school and the surrounding neighborhood. “The site plan map … answers so many questions about the matter at hand, but rather than examine it and meaningfully engage with what it shows, the majority ignores this evidence and renders a clear ordinance meaningless.”
“How does it do this? By invoking the ‘free use of land’ canon of statutory construction. That canon, though, is reserved only for ambiguous ordinances,” Riggs wrote. “And even when it is appropriate, it merely calls for a strict interpretation of the ordinance; the canon does not permit a court to entirely disregard the ordinance’s language. Further, the canon cannot be used to sidestep the ordinance’s purpose.”
“Notwithstanding the ordinance’s straightforward language and purpose, the majority invokes the free use of land canon to defang a legitimate local regulation of property rights,” she added.
Wake Forest rejected plans for Wake Preparatory Academy in October 2020. Town officials cited developers’ failure to plan for sidewalks that would meet town requirements for pedestrian connectivity with surrounding neighborhoods.
“This was a case where the politics of charter schools swirled around it,” said Toby Coleman, the lawyer representing school developer Schooldev East, during oral arguments before the high court in April.
Discussion among Wake Forest leaders during the 2020 hearing that led to the school’s rejection included concerns about charter schools and their potential impact.
“The town says there was no latent bias in its decision,” Coleman said. Wake Forest pointed instead to a violation of the sidewalk ordinance. School plans called for one 10-foot multiuse path leading to a nearby subdivision. Schooldev did not plan for sidewalks leading to other neighborhoods.
“The problem with that argument is that at no point prior to the close of the evidentiary hearing in this quasi-judicial case did anybody tell Schooldev that that was required by the sidewalk ordinance,” Coleman said. “In fact, nobody from the town mentioned the sidewalk ordinance during the evidentiary hearing.”
“The town, if it had wanted sidewalks, it should have told Schooldev that it wanted the sidewalks,” Coleman said.
On Wake Forest’s side of the argument, lawyer Sam Slater accused Schooldev of relying on a “novel North Carolina statute to justify its lack of pedestrian and bicycle connectivity.”
“The one thing the town raised their hand and said: If you’re going to put a school in the rural holding district, this is what it needs to do,” Slater said. “It needs to achieve the connectivity to the surrounding areas. It’s in a place with steep slopes. We’re in a rural part of town. We want school children walking.”
Schooldev had asked the state’s highest court to reverse a 2-1 decision from the state Court of Appeals in 2022. The state Supreme Court agreed to take the case in April 2023.
In November 2019, developers submitted plans to Wake Forest that included Wake Preparatory Academy, 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.”
Schooldev’s arguments in the case attracted legal support from both the North Carolina Home Builders Association and the North Carolina Coalition of Charter Schools.
Wake County Superior Court Judge Vince Rozier upheld the town’s decision rejecting the charter school 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.
Judge John Tyson dissented. He 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.”