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Split N.C. Appeals Court rules for Wake Forest in dispute over new charter school

N.C. Court of Appeals. CJ file photo

N.C. Court of Appeals has issued a 2-1 ruling favoring the town of Wake Forest in its legal dispute over construction of a new charter school.

The decision issued Tuesday is unlikely to affect the school, Wake Preparatory Academy, which chose a different location after losing an earlier round in the courtroom battle.

But the head of the John Locke Foundation’s Center for Effective Education says the General Assembly could take further steps to limit local governments’ ability to block new charter school construction.

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 the Appeals Court panel ruled unanimously 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.”

Some within the General Assembly would like to make state law even clearer. Terry Stoops, director of the Center for Effective Education at the John Locke Foundation, says the legislature’s charter school advocates want to protect the schools from hostile local governments.

“In recent years, Republican and Democratic lawmakers in the General Assembly supported legislation that would further streamline zoning regulations for schools,” Stoops told Carolina Journal. “House Bill 794, Allow Schools in All Zoning Districts, passed the North Carolina House in 2021 by a vote of 109-3. Regrettably, the state Senate declined to act on this sensible legislation. Securing the ratification of this legislation will be a top priority for North Carolina’s charter school advocates next year.”

“Some local governments maintain byzantine zoning review and approval processes to deter the development of public charter schools within their jurisdiction,” Stoops added. “Fortunately, the appalling politicization of the zoning process is limited to a few dozen urban and suburban communities typically dominated by NIMBY politicians, bureaucrats, and affluent residents.”

“Rather than working with charter school boards in a good-faith effort to advance the public good, municipalities like Wake Forest shamelessly use their regulatory authority to reinforce their private inclinations and preferences,” Stoops said.

With a split Appeals Court ruling, the Wake Prep case could be appealed to the state Supreme Court.

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