NC Appeals Court Upholds Denial of Applications for Major Site Plan and Subdivision Approval to Build a Charter School

This post was authored by Matthew Loescher, Esq.

Petitioner Schooldev East, LLC appealed from the Wake County Superior Court’s order affirming the Town of Wake Forest’s decision to deny Plaintiff’s applications for major site plan and major subdivision approval to build a charter school. On appeal, Petitioner contended the Town’s sidewalk requirements violated NC Gen. stats. 160A-307.1. Petitioner further argued it met the applicable local requirements, and therefore, the superior court erred in denying its applications.

At the outset, the court first noted that the General Assembly’s specific use of the terms “street improvements,” “sidewalk improvements,” and “improvements” in certain sections of Chapter 160A indicated its intent to have the categories separate and distinct from one another. As such, it held the term “street improvements” referred to in NC Gen. stats. 160A-307.1 did not include sidewalk improvements. Thus, it upheld the superior court’s decision that “NC Gen. stats. 160A-307.1 did not prohibit towns from regulating pedestrian and bicycle connectivity in relation to proposed new schools.”

Petitioner contended that “NC Gen. stats. 115C-218.35 prevented the Town from using vague and general policies on school development to prevent the construction of a charter school in a specific location.” The Town did not argue that the S-1 policy was implemented by a zoning regulation, nor does the Town contest that it accepted Petitioner’s permit applications for the Property to be the site location for Wake Prep. The court therefore found that policy S-1 was solely advisory, irrelevant to Petitioner’s Applications, and was not a proper basis for the Board to deny the Site Plan Application. Moreover, that court found that an elementary and secondary school was a permitted use within the RD District of the Property with additional supplemental standards; accordingly, such an educational use “establishes a prima facie case that the use conforms with the comprehensive plan.”

The court next noted that Policy S-3 provided: “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.” While similar to policy S-1 in that policy S-3 is a policy of the Town’s comprehensive plan to be implemented by a zoning regulation and can be changed at any time, UDO Section 3.7.5 was an ordinance by which policy S-3 was implemented. Thus, Petitioner’s failure to satisfy UDO Section 3.7.5 was a proper basis on which the Town denied Petitioner’s applications. Since Petitioner demonstrated that it would provide pedestrian connectivity to only one residential neighborhood through Joyner Park located to the south of the proposed school, the court held the superior court did not err in affirming the Board’s decision to deny the Applications. The decision of the superior court was therefore affirmed.

Schooldev East, LLC v Town of Wake Forest, 2022-NCCOA-494 (7/19/2022)