Charter school group enters legal dispute over Wake Forest’s decision to block school

The N.C. Coalition of Charter Schools is urging the N.C. Supreme Court to overturn a lower court’s decision against a proposed charter school in Wake Forest. A new friend-of-the-court brief filed Friday targets the state Appeals Court’s 2022 ruling supporting the town.

The state Supreme Court agreed in April to take the case, Schooldev East v. Town of Wake Forest.  

The outcome of the legal dispute is unlikely to affect the school, Wake Preparatory Academy, which chose a different location after losing an earlier round in the courtroom battle.

“The issues implicated by this case are of critical importance, as they may affect the standards and the sufficiency of evidence required by local governments to deny or grant petition applications relating to the development of charter schools,” wrote the charter school coalition’s lawyers, led by former Republican gubernatorial candidate and Charlotte Mayor Richard Vinroot. “The interpretation of the statutes and evidence in this case will impact the consideration of permit applications related to charter schools throughout North Carolina.”

The Appeals Court split 2-1 in July 2022 when it issued its ruling supporting Wake Forest’s decision to block a new charter school. The coalition’s brief highlighted dissenting Judge John Tyson’s assessment that “the Commissioners of the Town of Wake Forest … ‘violated their oath to be an impartial decision maker in a quasi-judicial proceeding’ when they improperly denied Schooldev’s permit applications.”

“It is important to keep in mind what the Town’s decision should not have been about: the merits of charter schools or school choice,” coalition lawyers wrote. “Yet, the record demonstrates that the Town’s decision to deny Schooldev’s permit applications was based on a desire to prevent a new charter school from being built — an issue that was not before the Town and over which the Town is supposed to have no role.”

“After a quasi-judicial hearing where Schooldev and the Town’s own staff presented evidence demonstrating that Schooldev’s applications complied with all applicable ordinances, the Town engaged in a delayed deliberation that had little relevance to the record evidence and gave improper credence to the opinions of a few citizens who spoke against the proposed charter school,” the brief continued.

“The Town got it wrong in every respect — on the procedure, the evidence, and the law,” coalition lawyers wrote. “And the Court of Appeals got it wrong by upholding the Town’s decision. As the record and Judge Tyson’s analysis demonstrate, Schooldev met the requirements to secure the permits it requested. If permitted to stand, this decision would allow opponents of charter schools and local governments to circumvent the legislature’s mandates in order to improperly block the creation of new charter schools.”

Schooldev’s lawyers also submitted their latest brief in the case Friday.

“Unmoored from the record and unburdened by findings of fact, the Town has exceeded its statutory authority in this case in a multitude of ways,” according to Schooldev’s court filing. “It relied on the wrong set of local regulations when denying Schooldev’s subdivision. It violated the statutory prohibition on requiring off-site improvements. Faced with undisputed record evidence that Schooldev complied with the local sidewalk requirement, the Town denied the subdivision and site plan anyway. …”

“The main opposition to Schooldev came from charter school opponents, and the town Board of Commissioners made public statements indicating they agreed with the opponents’ concerns,” the brief continued. “The Town’s vague and shifting explanations for the denials have done little to ease fears that the Town made the decision with an unstated antipathy for charter schools.”

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 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.

Tyson’s dissent 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.”

When Carolina Journal reported on the Appeals Court ruling last year, the head of the John Locke Foundation’s Center for Effective Education noted the problems created by local governments that oppose new charter schools.

“Some local governments maintain byzantine zoning review and approval processes to deter the development of public charter schools within their jurisdiction,” said Terry Stoops, who directed the center at the time. “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.

The N.C. Supreme Court has not yet scheduled the Schooldev case for oral arguments.

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