Schooldev E. v. Town of Wake Forest

• Decision Date: 19 July 2022
• Docket Number: COA21-359
• Court: North Carolina Court of Appeals
• Parties: SCHOOLDEV EAST, LLC, Petitioner, v. TOWN OF WAKE FOREST, Respondent

2022-NCCOA-494

SCHOOLDEV EAST, LLC, Petitioner, v. TOWN OF WAKE FOREST, Respondent

No. COA21-359

Court of Appeals of North Carolina

July 19, 2022

Heard in the Court of Appeals 26 January 2022.

Appeal by plaintiff from order entered 14 April 2021 by Judge Vinston M. Rozier, Jr. in Wake County No. 20 CVS 13930 Superior Court.

Smith Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P. by Tobias R. Coleman, J. Mitchell Armbruster, and Patrick D Wilson, and Stam Law Firm P.L.L.C., by Paul Stam and R Daniel Gibson, for Petitioner-Appellant.

Wyrick Robbins Yates & Ponton LLP by Samuel A. Slater for Respondent Appellee.

CARPENTER, Judge.

¶ 1 Appeal by Schooldev East, LLC ("Petitioner") from the Wake County Superior Court's order (the "Order") entered 14 April 2021, which affirmed the Town of Wake Forest's (the "Town") 20 November 2020 orders denying Plaintiff's applications for major site plan and major subdivision approval to build a charter school. On appeal, Petitioner argues the Town's "sidewalk requirements violate N.C. Gen. Stat. § 160A- 307.1[.]" Alternatively, Petitioner contends it met the applicable local requirements, and therefore, the superior court erred in denying its applications. After careful review, we conclude Petitioner failed to present competent, material, and substantial evidence to establish a prima facie case for entitlement of the 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. Accordingly, we affirm the Order.

I. Factual &Procedural Background

¶ 2 This case arises out of Petitioner's applications for major site plan and major subdivision plan approval to build a kindergarten through twelfth-grade charter school, to be named Wake Preparatory Academy ("Wake Prep"). Petitioner contracted with Jane Harris Pate ("Pate") to purchase approximately 35 acres (the "Property") of Pate's undeveloped, 68.29-acre tract of real property located on Harris Road, on which Petitioner planned to build Wake Prep. At all relevant times, the Property was located in the Town's rural holding zoning district ("RD District") and within the Town's planning jurisdiction.

¶ 3 On 4 November 2019, Petitioner filed a major subdivision plan permit application (the "Subdivision Plan Application") to subdivide Pate's property into three parcels, and a major site plan permit application (the "Site Plan Application") (together, the "Applications") seeking approval to construct Wake Prep on the middle parcel, or the Property.

¶ 4 On 3 September 2020, Petitioner presented evidence in support of its applications to the Town's Planning Board and Board of Commissioners (the "Board") in a quasi-judicial joint public hearing pursuant to the Wake Forest Unified Development Ordinance (the "UDO"). According to Sections 15.8.2 and 15.9.2 of the UDO,

The Board of Commissioners shall approve, deny or approve with conditions the Site Master Plan [and the Subdivision Master Plan]. No Site Master Plan [or Subdivision Master Plan] approval shall be granted unless it complies with the following findings of fact:

(1) The plan is consistent with the adopted plans and policies of the town;

(2) The plan complies with all applicable requirements of this ordinance;

(3) There exists adequate infrastructure (transportation and utilities) to support the plan as proposed; and

(4) The plan will not be detrimental to the use or development of adjacent properties or other neighborhood uses.

¶ 5 During its 20 October 2020 meeting, the Board unanimously denied both of Petitioner's applications based on its determination that Petitioner failed to offer sufficient evidence to satisfy the findings of fact as required by UDO Sections 15.8.2 and 15.9.2. On 17 November 2020, the Board entered its written decisions denying the Applications. The denial was based on a determination that the evidence did not satisfy certain policies of the Town's Community Plan and a Town zoning ordinance. The relevant Community Plan policies provide:

Policy S-1: ADVANCED PLANNING FOR THE LOCATION OF NEW PUBLIC SCHOOLS serving Wake Forest should be a joint effort between the Wake County School Board and the Town. School locations should serve to reinforce desirable growth patterns rather than promoting sprawl. New elementary school locations should be viewed as a CORNERSTONE OF THE NEIGHBORHOODS they are intended to serve. ....

Policy S-3: School campuses shall be designed to allow safe, PEDESTRIAN ACCESS FROM ADJACENT NEIGHBORHOODS. Transportation facilities within 1.5 miles of all public schools shall be a priority for construction of sidewalks, bike paths and pedestrian trails. ....

Policy S-5: THE CO-LOCATION AND JOINT DEVELOPMENT of school facilities in conjunction with other community facilities and services shall be encouraged. This policy shall be especially applicable to schools co-located with park and recreation facilities.

¶ 6 With respect to the Site Plan Application, the Board found Petitioner submitted insufficient evidence regarding findings of fact 1, 2, and 4. Specifically, the Board found there was insufficient evidence to support: finding of fact 1 because the evidence submitted failed to meet policies S-1 and S-3 of the Town's Community Plan; finding of fact 2 because the Site Plan Application failed to comply with a portion of UDO Section 3.7.5(B)(2), which requires "[c]onnectivity (vehicular and pedestrian) to surrounding residential areas"; and finding of fact 4 because the evidence submitted failed to meet policies S-1, S-3, and S-5 of the Town's Community Plan.

¶ 7 For the Subdivision Plan Application, the Board found that Petitioner submitted insufficient evidence regarding finding of fact 2 because the Subdivision Plan Application failed to comply with UDO Section 3.7.5(A), which states schools in the RD District are:

[t]o encourage walking and bicycle accessibility by schoolchildren to schools, [by] requir[ing] the applicant to demonstrate how such accessibility can be achieved, given the low density nature of this district. Accommodation may include the construction of additional off-premise sidewalks, multi-use trails/paths or greenways to connect to existing networks.

¶ 8 On 11 December 2020, Petitioner filed a petition for writ of certiorari pursuant to N.C. Gen. Stat. § 160A-393, recodified as N.C. Gen. Stat. § 160D-1402, in the Wake County Superior Court. Petitioner argued in its petition: (1) N.C. Gen. Stat. § 160A-307.1 prohibits the Town from denying the Applications for failing to meet the Town's policies requiring school connectivity to adjoining neighborhoods; (2) the Town cannot deny the Subdivision Plan Application because it found the Subdivision Plan Application complied with all provisions of the applicable subdivision ordinances; and (3) Petitioner presented sufficient evidence to establish it is entitled to the permits, and there was no competent evidence in the record to support denial.

¶ 9 On 14 December 2020, the Clerk of Superior Court for Wake County issued a writ of certiorari. On 24 February 2021, the Honorable Vinston M. Rozier, Jr., judge presiding, heard arguments from the parties. On 14 April 2021, Judge Rozier entered an Order in which he denied Petitioner's request to reverse the Board's decision and affirmed the Board's decision. Judge Rozier made the following pertinent conclusions of law:

(21) As to the interpretation of N.C. Gen. Stat. § 160A-307.1, the Court proceeds de novo. The Board of Commissioners properly analyzed the scope of a novel North Carolina Statute and determined that it did not preempt Town plans and ordinances requiring Schooldev to demonstrate pedestrian and bicycle connectivity.

(22) Having established that N.C. Gen. Stat. § 160A-307.1 does not prohibit towns from regulating pedestrian and bicycle connectivity in relation to proposed new schools, the Court next reviews the whole record to determine if the applicant submitted sufficient evidence to establish a prima facie case for entitlement to the requested permits by satisfying the Town's plans and ordinances requiring pedestrian and bicycle connectivity.

(23) A review of the whole record shows that Schooldev presented sufficient, competent evidence that its Site Plan Application will not be detrimental to the use and development of adjacent properties, as required in Finding 4 of Section 15.8.2 of the UDO.

(24) A review of the whole record then shows that Schooldev's Site Plan Permit Application does not satisfy the Town's plan and ordinances requiring pedestrian and bicycle connectivity.

(25) As a result, the Board of Commissioners properly denied both the Site Plan Application and the Subdivision Application.

¶ 10 On 20 April 2021, Petitioner filed notice of appeal to this Court.

II. Jurisdiction

¶ 11 This Court has jurisdiction to address Petitioner's appeal from the Wake County Superior Court's Order entered upon review of a quasi-judicial decision by a municipality pursuant to N.C. Gen. Stat. § 7A-27(b)(1) (2021).

III. Issues

¶ 12 The issues before this Court are whether: (1) Petitioner's appeal is moot considering Wake Prep has amended its charter application and will no longer operate the school in which Petitioner proposes to develop; (2) N.C Gen. Stat. § 160A-307.1 prohibits the Town from using local pedestrian and bicyclist connectivity and accessibility requirements to deny Petitioner's development permits for a charter school; (3) the superior court erred in applying the whole record standard of review in determining whether Petitioner established a prima facie case for entitlement to the permits at issue; and (4) the superior court...