This post appears here courtesy of the Carolina Journal
. The author of this post is CJ Staff
The town of Wake Forest defended in a series of state Supreme Court filings Friday its 2020 decision to reject a local charter school. The town urges the high court to uphold the state Appeals Court's 2-1 ruling in 2022 defending the town's action.
The Supreme Court agreed in April to take the case titled Schooldev East v. Town of Wake Forest.
The outcome of the legal dispute is unlikely to affect the school, which chose a different location after losing an earlier round in the courtroom battle.
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."
"Appellant Schooldev East, LLC, the developer of a proposed new school in the Town of Wake Forest, relied on a novel North Carolina statute, N.C.G.S. § 160A-307.1, to justify its scarce provision of pedestrian and bicycle infrastructure within its proposed subdivision and site plan,"
according to a brief from lawyers representing Wake Forest. "The Town denied Schooldev's subdivision application and site plan application for failure to provide sufficient pedestrian and bicycle infrastructure, as required by § 3.7.5 of the Town's Unified Development Ordinance."
"Schooldev, in arguments before the Wake County Superior Court, the North Carolina Court of Appeals, and now this Court, has continued to rely on N.C.G.S. § 160A-307.1 to claim that its permit applications were wrongfully denied. Schooldev's arguments are unavailing,"
Wake Forest's brief continued.
"The proper interpretation of N.C.G.S. § 160A-307.1 has been a critical issue since the Town's original public hearing considering Schooldev's permit applications,"
the brief explained. "Because N.C.G.S. § 160A-307.1 does not prohibit municipalities from requiring pedestrian and bicycle connectivity (via sidewalks or greenways) at schools and within subdivisions, the Town properly denied the permit applications."
"Faced with this proper interpretation of N.C.G.S. § 160A-307.1, Schooldev pivots its arguments to claim that § 3.7.5 of the Town's UDO is not a 'subdivision ordinance,' but rather a 'zoning ordinance,' and cannot be considered in evaluating a subdivision application or a site plan application,"
the town's brief continued. "But UDO § 3.7.5's requirements fall squarely within the grant of power given to municipalities by the North Carolina legislature."
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 Forest filed separate briefs Friday responding to both groups.
"The North Carolina Home Builders Association, Inc. provided a lengthy and useful summary of North Carolina's history of real property and due process rights. The Town of Wake Forest largely agrees with that history,"
the town's reply brief explained. "But the Town's decisions denying Schooldev East, LLC's major site plan permit application and major subdivision permit application did not violate any of Schooldev's due process rights."
"Rather, the Town's denials of the Permit Applications were procedurally and substantively proper and based on Schooldev's failure to meet its burden of production to show the Applications complied with the Town's Unified Development Ordinance,"
Wake Forest argued.
Wake Forest also rejected the charter school group's arguments. "This case is not about the merits of charter schools or school choice, as the North Carolina Coalition of Charter Schools suggests,"
according to a town brief. "Rather, it is about municipalities' ability to govern themselves and provide for the safety and welfare of their residents according to the broad grants of authority conferred upon them by the North Carolina legislature."
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,"
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."
The state Supreme Court has not yet scheduled the case for oral arguments.