Schooldev East

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-494

No. COA21-359

Filed 19 July 2022

Wake County, No. 20 CVS 13930

SCHOOLDEV EAST, LLC, Petitioner,

v.

TOWN OF WAKE FOREST, Respondent.

Appeal by plaintiff from order entered 14 April 2021 by Judge Vinston M.

Rozier, Jr. in Wake County Superior Court. Heard in the Court of Appeals 26

January 2022.

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-

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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

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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

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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

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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

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(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.

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(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 erred in holding Petitioner did not

present sufficient evidence to establish a prima facie case for entitlement to its

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requested development permits for a charter school.

IV. The Town’s Motion to Dismiss Appeal as Moot

¶ 13 As an initial matter, we consider the Town’s motion to dismiss filed on 23

September 2021 pursuant to Rule 37 of the North Carolina Rules of Appellate

Procedure. See N.C. R. App. P. 37(e)(2) (“After the record on appeal has been filed,

an appellant . . . may move the appellate court in which the appeal is pending, prior

to the filing of an opinion, for dismissal of the appeal.”). The Town contends the case

is moot because “Schooldev . . . renounced its legal right to operate a charter school

in [Wake Forest]” after filing its notice of appeal. Petitioner argues this Court should

deny the Town’s motion to dismiss because Petitioner can establish standing in this

case, and the case is not moot because “a court can still grant [it] effectual relief.”

Petitioner also clarifies in its response to the Town’s motion to dismiss that it only

develops schools. After developing the schools, Petitioner then seeks a separate

entity to operate the school after the entity leases or buys the property that Petitioner

has developed for school use.

¶ 14 Our Supreme Court has held:

[w]henever, during the course of litigation it develops that

the relief sought has been granted or that the questions

originally in controversy between the parties are no longer

at issue, the case should be dismissed, for courts will not

entertain or proceed with a cause merely to determine

abstract propositions of law.

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In re Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912 (1978), cert. denied, 442 U.S.

929, 99 S. Ct. 2859, 61 L. Ed. 2d 297 (1979). “A case is ‘moot’ when a determination

is sought on a matter which, when rendered, cannot have any practical effect on the

existing controversy.” Chavez v. McFadden, 374 N.C. 458, 467, 843 S.E.2d 139, 146

(2020) (citations omitted).

¶ 15 In the instant case, Petitioner sought site plan and subdivision permits from

the Town. The record does not tend to show Petitioner applied for the establishment

of the charter school pursuant to Chapter 115C of the North Carolina General

Statutes; rather, Petitioner applied only for development permits under the Town’s

UDO. Based on the evidence before us, it was a separate entity—Wake Preparatory

Academy—that sought the charter applications, which would allow it to “operate the

school.” See N.C. Gen. Stat. § 115C-218.5(a)(2) (2021). Thus, the Town’s contention

that Petitioner “renounced its legal right to operate a charter school in the Town,”

which rendered the case moot is without merit. (Emphasis added).

¶ 16 Furthermore, the Town provides no support to its argument that Petitioner

was required to have an approved charter application from the State Board of

Education before the Town could approve Petitioner’s requested development

permits. Our review of the UDO reveals there is no ordinance requiring Petitioner to

show it obtained the charter before it can proceed with zoning permits. In fact, the

UDO provides only general zoning requirements for all elementary and secondary

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schools. The issue of whether Petitioner satisfied the Town’s four findings entitling

it to the permits, is a separate legal question from whether the operator of the

proposed school obtained final approval of its charter under Chapter 115C of the

North Carolina General Statutes. Therefore, we cannot conclude, as the Town urges

us to, that “the questions originally in controversy” between Petitioner and the Town

are moot. See In re Peoples, 296 N.C. at 147, 250 S.E.2d at 912. Petitioner seeks our

review of the superior court’s determination of its development permits. Our decision

on the existing controversy would have a “practical effect” on Petitioner’s ability to

obtain the required development permits; therefore, we hold Petitioner’s appeal is not

moot and consider the merits of the case. See Chavez, 374 N.C. at 467, 843 S.E.2d at

146.

V. Standard of Review

¶ 17 Before a case arising from an application for site plan or subdivision approval

comes to this Court, “the proceeding in question has been subject to several levels of

examination and review.” PHG Asheville, LLC v. City of Asheville, 374 N.C. 133, 148–

49, 839 S.E.2d 755, 765 (2020). The stage at which the application sits determines

the standard of review to be utilized by the reviewing body. See id. at 149, 839 S.E.2d

at 765–66.

¶ 18 Initially, the application for a permit comes before a local governmental board,

and the board “must determine whether an applicant has produced competent,

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material, and substantial evidence tending to establish the existence of the facts and

conditions which the ordinance requires for the issuance of [the requested permit].”

Id. at 149, 839 S.E.2d at 766 (citation, emphasis, and internal quotation marks

omitted). If the applicant satisfies the initial burden of production, the applicant is

“prima facie . . . entitled to the issuance of the requested permit.” Id. at 149, 839

S.E.2d at 766 (internal quotation marks omitted). Where the applicant is entitled to

the approval of its application, “any decision to deny the application should be based

upon findings contra which are supported by competent, material, and substantial

evidence appearing in the record . . . .” Id. at 149, 839 S.E.2d at 766 (emphasis added

and internal quotation marks omitted).

¶ 19 Should an applicant appeal the board’s decision to the superior court by filing

a petition for writ of certiorari under N.C. Gen. Stat. § 160D-1402, the superior court’s

task of reviewing the application upon issuing a writ includes:

ensur[ing] that the rights of petitioners have not been

prejudiced because the decision-making body’s findings,

inferences, conclusions, or decisions were:

(a) In violation of constitutional provisions, including

those protecting procedural due process rights.

(b) In excess of the statutory authority conferred upon

the local government, including preemption, or the

authority conferred upon the decision-making board by

ordinance.

(c) Inconsistent with applicable procedures specified by

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statute or ordinance.

(d) Affected by other error of law.

(e) Unsupported by competent, material, and

substantial evidence in view of the entire record.

(f) Arbitrary or capricious.

N.C. Gen. Stat. § 160D-1402(j)(1)(a)-(f) (2021).

¶ 20 “The proper standard for the superior court’s judicial review depends upon the

particular issues presented on appeal.” Mann Media, Inc. v. Randolph Cnty. Plan.

Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002) (citations and internal quotation marks

omitted). In the event the “petitioner contends the board’s decision was based on an

error of law, ‘de novo’ review is proper.” Id. at 13, 565 S.E.2d at 17 (citations omitted

and emphasis added). “Under de novo review[,] a reviewing court considers the case

anew and may freely substitute its own interpretation of an ordinance for a board[’s]

conclusions of law.” Morris Commc’ns Corp. v. City of Bessemer, 365 N.C. 152, 156,

712 S.E.2d 868, 871 (2011) (emphasis added). “Whether the record contains

competent, material, and substantial evidence is a conclusion of law, reviewable de

novo.” N.C. Gen. Stat. § 160D-1402(j)(2) (2021); see also PHG Asheville, 374 N.C. at

150–51, 839 S.E.2d at 766–67 (citation omitted). Our Court has defined “material

evidence” as “[e]vidence having some logical connection with the consequential facts

or the issues.” Am. Towers, Inc. v. Town of Morrisville, 222 N.C. App. 638, 642, 731

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S.E.2d 698, 702 (2012) (citation omitted), disc. rev. denied, 366 N.C. 603, 743 S.E.2d

189. “Substantial evidence” means “such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Id. at 642, 731 S.E.2d at 702

(citation omitted).

¶ 21 “In the event that the petitioner contends that the local governmental body’s

decision was either (1) arbitrary or capricious or (2) not supported by competent,

material, or substantial evidence, the superior court is required to conduct a whole

record review.” PHG Asheville, LLC, 374 N.C. at 150–51, 839 S.E.2d at 766–67.

Under the whole record test, “the reviewing court must examine all competent

evidence (the ‘whole record’) in order to determine whether the agency decision is

supported by substantial evidence.” Mann Media, Inc., 356 N.C. at 14, 565 S.E.2d at

17 (citations and internal quotation marks omitted). In applying “the whole record

test, [a] finding must stand unless it is arbitrary [or] capricious.” Id. at 16, 565 S.E.2d

at 19.

¶ 22 When this Court reviews an order of the superior court relating to an agency

decision, we examine the order for errors of law in a twofold process: “(1) determining

whether the trial court exercised the appropriate scope of review and, if appropriate,

(2) deciding whether the court did so properly.” Id. at 14, 565 S.E.2d at 18.

¶ 23 In this case, it is clear the superior court correctly exercised the de novo

standard of review in conducting its statutory interpretation of N.C. Gen. Stat. §

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160A-307.1 because the court’s Order states it proceeded de novo on the issue. See

id. at 14, 565 S.E.2d at 18. For the reasons set forth below, we conclude the trial

court properly applied de novo review in reaching its decision that N.C. Gen. Stat. §

160A-307.1 does not prohibit municipalities from regulating pedestrian and bicycle

connectivity. See id. at 14, 565 S.E.2d at 18.

¶ 24 Petitioner contends “[t]he Superior Court erred when it applied whole record

review” to the issue of whether the burden of production is met. We agree. The trial

court should have “applied de novo review to determine the initial legal issue of

whether Petitioner had presented competent, material, and substantial evidence.”

See PHG Asheville, LLC v. City of Asheville, 262 N.C. App. 231, 241, 822 S.E.2d 79,

86 (2018), aff’d, 374 N.C. 133, 839 S.E.2d 755 (2020). Instead, the trial court

erroneously exercised the whole record test in determining the preliminary legal

question concerning the sufficiency of Petitioner’s evidence. For the reasons

discussed below, we nevertheless conclude the trial court correctly affirmed the

Board’s decisions because Petitioner failed to meet its burden of production to show

it is entitled to the requested permits; thus, we find no prejudicial error. See Cannon

v. Zoning Bd. of Adjustment, 65 N.C. App. 44, 47, 308 S.E.2d 735, 737 (1983)

(concluding the petitioner’s challenged findings were “a recitation of largely

uncontroverted evidence” and therefore the board’s decision was not prejudicial

error).

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VI. Analysis

A. The Town’s Local Ordinances “Requiring Sidewalks”

¶ 25 In its first argument, Petitioner contends N.C. Gen. Stat. § 160A-307.1

prohibits “municipalities from requiring or otherwise conditioning approval of school

construction on meeting local street improvement requirements,” including sidewalk

improvement requirements. The Town asserts the plain text of the statute indicates

the legislature’s intent to limit a municipality’s “ability to require ‘street

improvements’ for schools to only those that are required for safe ingress and egress

‘to the municipal street system’ and that are physically connected to the school’s

driveway”; thus, the legislature did not contemplate sidewalks falling within the

meaning of a “street improvement.”

¶ 26 After careful review, we agree with the Town’s interpretation of N.C. Gen. Stat.

§ 160A-307.1, and we reject Petitioner’s contention that sidewalks are included

within the meaning of “street improvements” for purposes of interpreting N.C. Gen.

Stat. § 160A-307.1.

¶ 27 We review de novo the issue of whether N.C. Gen. Stat. § 160A-307.1 was

properly interpreted. See Mann Media, Inc., 356 N.C. at 13, 565 S.E.2d at 17; see also

Quality Built Homes, Inc. v. Town of Carthage, 369 N.C. 15, 18, 789 S.E.2d 454, 457

(2016) (“We review matters of statutory interpretation de novo . . . .”).

¶ 28 N.C. Gen. Stat. § 160A-307.1 provides in pertinent part:

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A city may only require street improvements related to

schools that are required for safe ingress and egress to the

municipal street system and that are physically connected

to a driveway on the school site. The required

improvements shall not exceed those required pursuant to

[N.C. Gen. Stat. §] 136-18(29).

N.C. Gen. Stat. § 160A-307.1 (2021).

¶ 29 Petitioner argues the broad definition of “improvements” found under N.C.

Gen. Stat. § 136-18(29a) is controlling as to the definition of “street improvements”

under N.C. Gen. Stat. § 160A-307.1. Petitioner reasons N.C. Gen. Stat. § 160A-307.1

references “[t]he required improvements” in citing to N.C. Gen. Stat. § 136-18(29).

The Town maintains Petitioner’s reading of the statute would lead to “absurd results”

and “conflict[s] with the plain language of the statute.”

¶ 30 “In the interpretation of statutes, the legislative will is the all-important or

controlling factor.” In re Hardy, 294 N.C. 90, 95, 240 S.E.2d 367, 371 (1978).

“Statutory interpretation properly begins with an examination of the plain words of

the statute.” Jeffries v. Cnty. of Harnett, 259 N.C. App. 473, 488, 817 S.E.2d 36, 47

(2018) (citation omitted), disc. rev. denied, 372 N.C. 297, 826 S.E.2d 710 (2019). When

language is “clear and unambiguous within the context of the statute,” the courts

must give the words their “plain and ordinary meanings.” Brown v. Flowe, 349 N.C.

520, 522, 507 S.E.2d 894, 896 (1998). “[U]ndefined words in a statute ‘must be given

their common and ordinary meaning’” when interpreting the plain language. State

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v. Rieger, 267 N.C. App. 647, 649, 833 S.E.2d 699, 701 (2019) (quoting In re Clayton-

Marcus Co., Inc., 286 N.C. 215, 219, 210 S.E.2d 199, 202 (1974)). However, “[w]ords

and phrases of a statute may not be interpreted out of context, but individual

expressions must be construed as a part of the composite whole and must be accorded

only that meaning which other modifying provisions and the clear intent and purpose

of the act will permit.” In re Hardy, 294 N.C. at 95–96, 240 S.E.2d at 371–72 (internal

quotations omitted). Under the interpretative canon of noscitur a sociis, “[w]hen a

word used in a statute is ambiguous or vague, its meaning may be made clear and

specific by considering the company in which it is found[,] and the meaning of the

terms which are associated with it.” Winston v. Beeson, 135 N.C. 271, 280, 47 S.E.

457, 460 (1904); see State v. Emery, 224 N.C. 581, 583, 31 S.E.2d 858, 860 (1944)

(“Noscitur a sociis is a rule of construction applicable to all written instruments.”).

¶ 31 “[S]treet improvements” is not defined in Chapter 160A; thus, we look to the

ordinary meaning of the words that comprise the term. See Rieger, 267 N.C. App. at

649, 833 S.E.2d at 701. According to Merriam-Webster, a “street” is defined as “a

thoroughfare especially in a city, town, or village that is wider than an alley or lane

that usually includes sidewalks.” Street, Merriam-Webster, https://www.merriam-

webster.com/dictionary/street (last visited June 9, 2022) (emphasis added). An

“improvement” means “the act or process of improving.” Improvement, Merriam-

Webster, https://www.merriam-webster.com/dictionary/improvement (last visited

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June 9, 2022). “Improve” means “to make (something better).” Improve, Merriam-

Webster, https://www.merriam-webster.com/dictionary/improve (last visited June 9,

2022).

¶ 32 Applying the ordinary meaning of the word “street” to the statute at issue, the

statute would prohibit municipalities from mandating improvements of

thoroughfares—and potentially improvements of sidewalks—unless such

improvement is “required for safe ingress and egress to the municipal street system

and [is] physically connected to a driveway on the school site.” See N.C. Gen. Stat. §

160A-307.1. We next determine if the language of the statute is “clear and

unambiguous” as to whether sidewalks should be included within the ordinary

meaning of “street improvements” based on the “context of the statute.” See Brown,

349 N.C. at 522, 507 S.E.2d at 896; In re Hardy, 294 N.C. at 95–96, 240 S.E.2d at 371.

¶ 33 According to Black’s Law Dictionary, “ingress” is “[t]he act of entering,” and

“egress” is “[t]he act of going out or leaving.” Ingress, Black’s Law Dictionary (10th

ed. 2014); egress, Black’s Law Dictionary (10th ed. 2014). In applying the principle

of noscitur a sociis, we cannot conclude the legislature intended sidewalks to be

required for safely entering into, and leaving from, the municipal street system, nor

did it intend for cities to require only sidewalks which are “physically connected to a

driveway on the school site.” See N.C. Gen. Stat. § 160A-307.1.

¶ 34 Finally, we consider the other statutory sections of Chapter 160A dealing with

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sidewalks, streets, and/or improvements. “[W]e must be guided by the ‘fundamental

rule of statutory construction that statutes in pari materia, and all parts thereof,

should be construed together and compared with each other.’” Martin v. N.C. Dep’t

Health & Hum. Servs., 194 N.C. App. 716, 719, 670 S.E.2d 629, 632 (2009) (emphasis

added) (quoting Redevelopment Comm’n v. Sec. Nat’l Bank, 252 N.C. 595, 610, 114

S.E.2d 688, 698 (1960)). We have stated “[w]hen a legislative body includes particular

language in one section of a statute but omits it in another section of the same Act, it

is generally presumed that [the legislative body] acts intentionally and purposely in

the disparate inclusion or exclusion.” N.C. Dep’t of Revenue v. Hudson, 196 N.C. App.

765, 768, 675 S.E.2d 709, 711 (2009) (internal quotation marks omitted) (quoting

Rodriquez v. United States, 480 U.S. 522, 525, 107 S. Ct. 1391, 94 L. Ed. 2d 533, 537

(1987).

¶ 35 Petitioner contends the definition of “improvements” found in N.C. Gen. Stat.

§ 136-18(29a) should “control [in this case] because it comes from a statute that limits

the types of roadway improvements that can be imposed on schools by government.”

N.C. Gen. Stat. § 136-18(29a) provides: “[t]he term ‘improvements,’ as used in this

subdivision, refers to all facilities within the right-of-way required to be installed to

satisfy the road cross-section requirements depicted upon the approved plans,”

including, inter alia, roadway construction, ditches and shoulders, and sidewalks.

N.C. Gen. Stat. § 136-18(29a) (2021). The use of the phrase “as used in this

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subdivision,” indicates the legislature’s intent to restrict this definition of general

“improvements” to this particular subsection. Additionally, N.C. Gen. Stat. §

136.18(29), the statute cited in N.C. Gen. Stat. § 160A-307.1, is referring only to

driveway connections—not sidewalks. Thus, we are not persuaded by Petitioner’s

argument that we should apply the definition of “improvements” found in N.C. Gen.

Stat. § 136-18(29a) to interpret “street improvements” under N.C. Gen. Stat. § 160A-

307.1.

¶ 36 Additionally, our review of North Carolina statutes reveals not only has the

General Assembly specifically referred to “sidewalks” when it intended to pass laws

affecting sidewalks, see e.g., N.C. Gen. Stat. § 160A-296 (2021); N.C. Gen. Stat. §

160A-189 (2021); N.C. Gen. Stat. 160A-300 (2021), but it has also specifically referred

to “sidewalk improvements” when it intended to pass laws affecting sidewalk

improvements. See N.C. Gen. Stat. § 160A-217 (2021).

¶ 37 In passing N.C. Gen. Stat. § 160A-217, the legislature distinguished between

“street improvements” and “sidewalk improvements” in the context of levying special

assessments for such improvements by using the disjunctive term “or” in separating

the phrases “street improvements” and “sidewalk improvements.” See Miller v.

Lillich, 167 N.C. App. 643, 646, 606 S.E.2d 181, 183 (2004) (The legislature’s use of

the word “or” to separate sub-parts of the statute at issue indicated the sub-parts

“should be read disjunctively, each being an alternative to the other.”). The General

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Assembly’s specific use of the terms “street improvements,” “sidewalk

improvements,” and “improvements” in certain sections of Chapter 160A indicates its

intent to have the categories separate and distinct from one another. Accordingly,

we conclude the term “street improvements” referred to in N.C. Gen. Stat. § 160A-

307.1 does not include sidewalk improvements. Therefore, we hold the superior court

correctly concluded “N.C. Gen. Stat. § 160A-307.1 does not prohibit towns from

regulating pedestrian and bicycle connectivity in relation to proposed new schools.”

¶ 38 We briefly discuss the separate concurring and dissenting opinion, which

concludes N.C. Gen. Stat. § 160A-307.1 preempts the Town’s ordinances requiring

sidewalks. The separate opinion correctly considers the plain meaning of the terms

“street” and “improvement,” then erroneously offers cases that neither interpret the

statute at issue nor consider the legislative intent of the statute. Rather, the cases

are offered as support for the proposition that streets include sidewalks. Although

these cases may appear to support the desired conclusion, their consideration in this

context is contrary to the rules regarding statutory interpretation that have been

developed by the Courts in this State. See Blowing Rock v. Gregorie, 243 N.C. 364,

371, 90 S.E.2d 898, 904 (1956) (“Statutes in pari materia are to be construed together,

and it is a general rule that the courts must harmonize such statutes, if possible, and

give effect to each, that is, all applicable laws on the same subject matter should be

construed together so as to produce a harmonious body of legislation, if possible.”);

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Wal-Mart Stores East v. Hinton, 197 N.C. App. 30, 41–42, 676 S.E.2d 634, 644 (2009).

B. Sufficiency of Evidence to Establish Prima Facie Case for Entitlement

of Permits

¶ 39 As previously stated, the proper standard of review for the initial legal issue of

whether Petitioner had presented competent, material, and substantial evidence is

de novo. See PHG Asheville, LLC, 262 N.C. App. at 241, 822 S.E.2d at 86.

¶ 40 There is no dispute Petitioner’s Applications complied with finding of fact 3 of

UDO Sections 15.8.2 and 15.9.2. Moreover, the superior court concluded Petitioner’s

Applications complied with finding of fact 4, and the Town does not contest this

conclusion. Thus, only the superior court’s rulings as to findings of fact 1 and 2 are

relevant to Petitioner’s appeal of the Applications. We consider the sufficiency of

evidence for each factual finding in turn.

1. Finding of Fact 1: Conformity with the Town’s Plans and Policies

¶ 41 Finding of fact 1 requires the requested permits are “consistent with the

adopted plans and policies of the [T]own.” Here, denial of Petitioner’s Applications

was based in part on Petitioner’s non-compliance with policies S-1 and S-3 of the

Town’s policies for community-oriented schools.

a. Community Plan, Policy S-1

¶ 42 As stated above, policy S-1 provides:

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

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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.

¶ 43 Petitioner argues “N.C. Gen. Stat. § 115C-218.35 prevents 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 asserts N.C. Gen. Stat. § 115C-218.35

did not prohibit the Town from denying permit applications related to charter schools.

Additionally, the Town explains in its brief that it did not deny the Applications based

on Wake Prep’s location, and it accepted the permit applications for the location.

Rather, the Town admits that it denied the Applications because Petitioner failed “to

include adequate sidewalks to satisfy the [T]own’s policies and ordinances in

contravention of UDO §§ 15.8.2 and 15.9.2 . . . .”

¶ 44 The pertinent part of N.C. Gen. Stat. § 115C-218.35 upon which Petitioner

relies provides: “[a] charter school’s specific location shall not be prescribed or limited

by a local board or other authority except a zoning authority.” N.C. Gen. Stat. § 115C-

218.35(a) (2021). Because the Board is acting as a zoning authority in this case,

Petitioner’s argument that this statute prevents the Town from considering

Community Plan policies and corresponding regulations is without merit. We next

consider whether Petitioner offered sufficient evidence that it complied with the

Town’s plans and policies.

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¶ 45 “A comprehensive plan is a policy statement to be implemented by zoning

regulations, and it is the latter that have the force of law. It is generally deemed to

be advisory, rather than controlling, and it may be changed at any time.” Piney Mt.

Neighborhood Assoc. v. Town of Chapel Hill, 63 N.C. App. 244, 251, 304 S.E.2d 251,

255 (1983) (citations and internal quotation marks omitted). A board of

commissioners “must also proceed under standards, rules, and regulations, uniformly

applicable to all who apply for permits.” Application of Ellis, 277 N.C. 419, 425, 178

S.E.2d 77, 81 (1970) (“[C]ommissioners cannot deny applicants a permit in their

unguided discretion or, stated differently, refuse it solely because, in their view, [it]

would ‘adversely affect the public interest.’”). “The inclusion of a use in a zoning

district, even where a . . . permit is required, establishes a prima facie case that the

use conforms with the comprehensive plan.” Am. Towers, Inc. v. Town of Morrisville,

222 N.C. App. 639, 643, 731 S.E.2d 698, 703 (2012) (citing Woodhouse v. Bd. of

Comm’rs, 299 N.C. 211, 216, 261 S.E.2d 882, 886 (1980)).

¶ 46 Here, policy S-1 is a policy statement applicable to the planning of a new school

location. See Piney Mt. Neighborhood Ass’n, 63 N.C. App. at 251, 304 S.E.2d at 255.

The Town does not argue that policy S-1 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. Therefore, policy S-1 is solely advisory,

is irrelevant to Petitioner’s Applications, and was not a proper basis for the Board to

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deny the Site Plan Application. See id. at 251, 304 S.E.2d at 255. Furthermore, an

elementary and secondary school is a permitted use within the RD District of the

Property with additional supplemental standards; therefore, such an educational use

“establishes a prima facie case that the use conforms with the comprehensive plan.”

See Am. Towers, Inc., 222 N.C. App. at 643, 731 S.E.2d at 703.

b. Community Plan, Policy S-3

¶ 47 Policy S-3 provides: “[s]chool 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.”

¶ 48 Similar to policy S-1, 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. See Piney

Mt. Neighborhood Ass’n, 63 N.C. App. at 251, 304 S.E.2d at 255. Standing by itself,

S-3 is only advisory and does not have the force of law. See id. at 251, 304 S.E.2d at

255. However, UDO Section 3.7.5 is an ordinance by which policy S-3 was

implemented. Thus, as discussed in detail below, Petitioner’s failure to satisfy UDO

Section 3.7.5 was a proper basis on which the Town denied Petitioner’s applications.

2. Finding of Fact 2: Compliance with Applicable Ordinances

¶ 49 Finding of fact 2 requires the Applications to “compl[y] with all applicable

requirements of this ordinance.”

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¶ 50 In the instant case, the Town denied Petitioner’s Subdivision Plan Application

because it did not comply with requirements set forth in UDO Section 3.7.5(A), which

requires an applicant for a school to demonstrate how its plan will achieve “walking

and bicycle accessibility by schoolchildren to schools” through off-premise sidewalks,

multi-use trails or paths, or greenways connecting to existing networks. Similarly,

the Town denied Petitioner’s Site Plan Application on the ground that Petitioner did

not show it met the requirements of UDO Section 3.7.5(B), which requires all schools

within the Town’s planning jurisdiction to have vehicular and pedestrian connectivity

to surrounding residential areas.

¶ 51 Relying on Lanvale Properties, LLC v. County of Cabarrus, 366 N.C. 142, 731

S.E.2d 800 (2012), Petitioner contends the Town erred in denying its Subdivision Plan

Application on the ground that it failed to comply with UDO Section 3.7.5 because it

is a zoning ordinance, and it is inapplicable to its subdivision request. We disagree

and note Petitioner makes no argument as to why UDO Section 3.7.5 is inapplicable

to its Site Plan Application.

¶ 52 In Lanvale Properties, LLC, our Court explained the difference between zoning

ordinances and subdivision ordinances:

[A]s a general matter, subdivision ordinances are designed

to regulate the creation of new lots or separate parcels of

land. Unlike zoning, which controls the use of land and

remains important before, during and after development,

subdivision regulation generally refers to controls

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implemented during the development process. To this end,

subdivision ordinances have several purposes, including,

among other things, facilitat[ing] record keeping regarding

land ownership; establishing standards on the size and

shape of new lots and the layout of public facilities (such as

street location, intersection design, and the like); and

requir[ing] the provision of essential infrastructure (such

as roads, utilities, recreational lands, and open space) and

the details of how [that infrastructure] is to be laid out and

constructed. Therefore, county subdivision ordinances

control the development of specific parcels of land while

general zoning ordinances regulate land use activities over

multiple properties located within a distinct area of the

county’s territorial jurisdiction.

Lanvale Props., LLC, 366 N.C. at 158–59, 731 S.E.2d at 812 (citations and internal

quotation marks omitted).

¶ 53 In this case, UDO Section 3.7.5 is intended to regulate the development of land

to be used for educational uses and requires the provision of “off-premise sidewalks,

multi-use trails or paths, or greenways” to allow for accessibility by students to the

schools and for vehicular and pedestrian connectivity to surrounding residential

areas. See id. at 158, 731 S.E.2d at 812. Since the ordinance concerns a component

of “essential infrastructure” for an elementary and secondary school within the

Town’s planning jurisdiction, we conclude UDO Section 3.7.5 is a subdivision

ordinance, and the superior court properly considered the ordinance in denying

Petitioner’s Subdivision Plan Application. See id. at 158, 731 S.E.2d at 812.

¶ 54 As discussed in detail in Section A, the Town’s UDO Section 3.7.5 was not

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preempted by N.C. Gen. Stat. § 160A-307.1, and Petitioner has failed to show that it

was not required to comply with UDO Section 3.7.5 to satisfy conditions for approval

of the Applications.

¶ 55 The separate concurring and dissenting opinion states “[t]he Town’s staff

reviewed Petitioner’s submittals and submitted a written report. The Town’s written

report noted no deficiencies or further improvements needed.” We note the staff

report recommended the Board determine if Petitioner met the required findings of

fact, including determining whether the plan complies with all applicable

requirements of the UDO, including UDO Section 3.7.5. We further note the ultimate

decision as to whether Petitioner presented “competent, material, and substantial

evidence” and met the UDO requirements remained with the Board.

¶ 56 Our review of the record shows Petitioner brought forth evidence

demonstrating it would dedicate a twenty-five-foot right of way line along the

frontage of the property and provide a ten-foot-wide multi-use path one foot behind

the right of way line. Petitioner also offered testimony tending to show “the

[proposed] sidewalk . . . would align with the entrance into Joyner Park and the trails

within Joyner Park.” Since Petitioner demonstrates that it would provide pedestrian

connectivity to only one residential neighborhood through Joyner Park located to the

south of the proposed school, we hold the superior court did not err in affirming the

Board’s decision to deny the Applications.

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VII. Conclusion

¶ 57 We deny the Town’s motion to dismiss Petitioner’s appeal because the case is

not moot. We hold the Town’s local ordinances requiring pedestrian connectivity and

accessibility for schoolchildren to a school is not preempted by N.C. Gen. Stat. § 160A-

307.1. Although the superior court erred in applying the whole record test in

considering whether Petitioner presented competent, material, and substantial

evidence, we find no prejudicial error. Our de novo review of the record reveals

Petitioner failed to meet its burden of production to show it met Section 3.7.5 of the

Town’s UDO to establish a prima facie case for entitlement of the permits.

Accordingly, we affirm the decision of the superior court.

AFFIRMED.

Judge ARROWOOD concurs.

Judge TYSON concurs in part and dissents in part by separate opinion.

No. COA21-359 – Schooldev East, LLC v. Town of Wake Forest

TYSON, Judge, concurring in part and dissenting in part.

¶ 58 I concur with the majority’s opinion holding the Town’s motion to dismiss as

moot be denied. I also agree with the majority’s conclusions the superior court erred

and applied the incorrect “whole record” standard of review. I further concur with

“[the Town’s Board] cannot deny applicants a permit in their unguided discretion or,

stated differently, refuse it solely because, in their view, [it] would ‘adversely affect

the public interest.’” “The inclusion of a [permitted] use in a zoning district, even

where a special use permit is required, establishes a prima facie case the use

conforms with the comprehensive plan.” Am. Towers, Inc. v. Town of Morrisville, 222

N.C. App. 638, 643, 731 S.E.2d 698, 703 (2012) (citing Woodhouse v. Bd. of Comm’rs,

299 N.C. 211, 216, 261 S.E.2d 882, 886 (1980)). As such, Petitioner’s subdivision

application should be approved. The Town found Petitioner complied with all

provisions of the applicable subdivision ordinances and future improvements to a

parcel are subject to site plan review, and are not reviewed under the subdivision

ordinance.

¶ 59 However, the majority incorrectly concludes the superior court’s erroneous

whole record review was harmless; the Town’s UDO can pre-empt a limiting state

statute, N.C. Gen. Stat. § 160A-307.1 (2021); and, Petitioner’s evidence failed to

establish a prima facie case of entitlement to the special use permit. I respectfully

dissent.

I. Issues

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TYSON, J., concurring in part and dissenting in part

¶ 60 Petitioner petitioned for a writ of certiorari pursuant to N.C. Gen. Stat. § 160A-

393, recodified as N.C. Gen. Stat. § 160D-1402 (2021). 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 contra in

the record to support denial.

II. Standards of Review

¶ 61 “Whether the record contains competent, material, and substantial evidence is

a conclusion of law, reviewable de novo.” N.C. Gen. Stat. § 160D-1402(j)(2).

Petitioner argues no disputed facts exist in this case and the only question is whether

it “produced competent, material, and substantial evidence tending to establish the

existence of the facts and conditions which the ordinance requires for the issuance of

a special use permit[.]” Humble Oil & Ref. Co. v. Bd. of Aldermen, 284 N.C. 458, 468,

202 S.E.2d 129, 136 (1974).

¶ 62 We all agree the Petitioner correctly argues: “[t]he Superior Court erred when

it applied whole record review,” to the issue of whether Petitioner’s burden of

production was met, a deferential review to the Town. Our Supreme “Court has

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clearly held, the extent to which an applicant has presented competent, material, and

substantial evidence tending to satisfy the standards set out in the applicable

ordinance” for a quasi-judicial permit “is a question directed toward the sufficiency of

the evidence presented by the applicant and involves the making of a legal, rather

than a factual, determination.” PHG Asheville, LLC v. City of Asheville, 374 N.C.

133, 152, 839 S.E.2d 755, 767 (2020).

¶ 63 We all also agree the trial court should have “applied de novo review to

determine the initial legal issue of whether Petitioner had presented competent,

material, and substantial evidence.” PHG Asheville, LLC v. City of Asheville, 262

N.C. App. 231, 241, 822 S.E.2d 79, 86 (2018), aff’d, 374 N.C. 133, 839 S.E.2d 755

(2020). Instead, the trial court erroneously applied the deferential “whole record” test

to determine the legal question concerning the sufficiency of Petitioner’s evidence.

See id.

¶ 64 Also, the issue of whether N.C. Gen. Stat. § 160A-307.1 was properly

interpreted and applied is reviewed de novo. See Mann Media, Inc. v. Randolph Cty.

Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002); see also Quality Built Homes,

Inc. v. Town of Carthage, 369 N.C. 15, 18, 789 S.E.2d 454, 457 (2016) (“We review

matters of statutory interpretation de novo”) (citation omitted).

¶ 65 “The fundamental right to [own and use] property is as old as our state.” Kirby

v. N.C. Dep’t of Transp., 368 N.C. 847, 852, 786 S.E.2d 919, 923 (2016) (citations

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omitted). “Public policy has long favored the free and unrestricted use and enjoyment

of land. Id. at 853, 786 S.E.2d at 924 (citations and internal quotation marks

omitted).

¶ 66 “The general rule is that a zoning ordinance, being in derogation of common

law property rights, should be construed in favor of the free use of property.” Dobo v.

Zoning Bd. of Adjustment of Wilmington, 149 N.C. App. 701, 712, 562 S.E.2d 108, 115

(2002) (Tyson, J., dissenting), rev’d per curiam for reasons stated in the dissenting

opinion, 356 N.C. 656, 576 S.E.2d 324 (2003); See Yancey v. Heafner, 268 N.C. 263,

266, 150 S.E.2d 440, 443 (1966); City of Sanford v. Dandy Signs, Inc., 62 N.C. App.

568, 569, 303 S.E.2d 228, 230 (1983); Innovative 55, LLC v. Robeson Cty., 253 N.C.

App. 714, 720, 801 S.E.2d 671, 676 (2017).

Zoning regulations are in derogation of common law

rights and they cannot be construed to include or

exclude by implication that which is not clearly

their express terms. It has been held that well-founded

doubts as to the meaning of obscure provisions of a Zoning

Ordinance should be resolved in favor of the free use of

property.

¶ 67 Land v. Village of Wesley Chapel, 206 N.C. App. 123, 131, 697 S.E.2d 458, 463

(2010) (emphasis original)(citations omitted). The Town’s restrictive ordinances are

to be construed narrowly and their applicability is limited and pre-empted by a state

statute, which addresses and controls the very issue of the interior sidewalk

improvements. N.C. Gen. Stat. § 160A-307.1.

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TYSON, J., concurring in part and dissenting in part

III. Sufficiency of Evidence to Establish a Prima Facie Case

¶ 68 The Petitioner’s burden of production at a use permit hearing is well

established: “[W]hether the applicant for a conditional use permit made out the

necessary prima facie case does not involve determining whether the applicant met

a burden of persuasion, as compared to a burden of production, and is subject to de

novo, rather than whole record, review during the judicial review process.” PHG

Asheville, LLC, 374 N.C. at 153 n5, 839 S.E.2d at 768 n5. Under de novo review, the

question is whether Petitioner “produced competent, material, and substantial

evidence tending to establish the existence of the facts and conditions which the

ordinance requires for the issuance of a [use] permit.” Id. at 149, 839 S.E.2d at 766

(citation omitted).

¶ 69 “In the event that the applicant satisfies this initial burden of production, then

‘prima facie he is entitled to’ the issuance of the requested permit.” Id. (internal

citation omitted). The Supreme Court has analogized the applicant’s burden of

production in these cases “to the making of the showing necessary to overcome a

directed verdict motion during a jury trial.” Id at 152, 839 S.E.2d at 767. In cases

where facts are not in dispute, “the City simply lack[s] the legal authority to deny,” if

an applicant produces “competent, material, and substantial evidence” on each of the

relevant standards for approval. Id. at 158, 839 S.E.2d at 771; Id. at 145, 839 S.E.2d

at 763.

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TYSON, J., concurring in part and dissenting in part

¶ 70 Petitioner correctly argues the Town cannot deny the Subdivision Plan

Application because the evidence supports and the Town found: (1) the Subdivision

Plan Application complied with all provisions of the applicable subdivision

ordinances; (2) it presented sufficient evidence to establish it is entitled to the

permits; and, (3) no competent evidence contra in the record supports denial.

¶ 71 Also, no party disputes Petitioner’s Applications complied with finding of fact

3 of UDO §§ 15.8.2 and 15.9.2. As noted above, the superior court concluded

Petitioner’s Applications also complied with finding of fact 4. The Town does not

contest this conclusion on appeal. Thus, only factors 1 and 2 are at issue.

¶ 72 The Town, the superior court, and the majority’s opinion incorrectly weighs the

evidence Petitioner produced in determining whether competent, material, and

substantial evidence was submitted. The RD Zoning District applicable to the

Property unambiguously states an elementary and secondary school is a permitted

use, with additional supplemental standards. This permitted educational use

“establishes a prima facie case that the use conforms with the comprehensive plan.”

See Am. Towers, Inc., 222 N.C. App. at 643, 731 S.E.2d at 703 (citation omitted).

¶ 73 The majority’s opinion correctly concludes S-1 is a non-binding policy

statement not applicable or controlling to Petitioner’s applications. See Piney Mt.

Neighborhood Ass’n v. Town of Chapel Hill, 63 N.C. App. 244, 251, 304 S.E.2d 251,

255 (1983). The majority’s opinion also correctly notes the Town does not argue on

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appeal that policy S-1 was implemented by a zoning regulation, nor does the Town

contest it accepted Petitioner’s permit applications for the Property as a permitted

use to be the site location for an educational facility, Wake Prep, and not as a re-

zoning application. S-1 is solely advisory, irrelevant to Petitioner’s Applications, and

was an improper basis for the Board to deny the Site Plan Application. See id. We

all agree this basis neither supports the Board’s denial of Petitioner’s applications

nor the superior court’s affirmance thereof.

¶ 74 Petitioner contends the Town erred in denying its Subdivision Plan Application

on the ground it failed to comply with UDO Section 3.7.5 because it is a zoning

ordinance, and it is inapplicable to its subdivision request. The majority’s opinion

improperly conflates the separate and distinct functions of subdivision and zoning

ordinances.

¶ 75 Our Supreme Court in Lanvale Properties, LLC, sets out the differences

between and in interpreting zoning ordinances and subdivision ordinances:

[A]s a general matter, subdivision ordinances are

designed to regulate the creation of new lots or

separate parcels of land. Unlike zoning, which

controls the use of land and remains important before,

during and after development, subdivision regulation

generally refers to controls implemented during the

development process. To this end, subdivision

ordinances have several purposes, including among

other things, facilitat[ing] record keeping regarding

land ownership; establishing standards on the size

and shape of new lots and the layout of public

facilities (such as street location, intersection

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design, and the like); and requir[ing] the provision

of essential infrastructure (such as roads, utilities,

recreational lands, and open space) and the details

of how [that infrastructure] is to be laid out and

constructed. Therefore, county subdivision

ordinances control the development of specific

parcels of land while general zoning ordinances

regulate land use activities over multiple properties

located within a distinct area of the county’s territorial

jurisdiction.

Lanvale Props., LLC v. Cnty. Of Cabarrus, 366 N.C. 142, 158-59, 731 S.E.2d 800, 812

(2012) (citations and internal quotation marks omitted) (emphasis supplied).

¶ 76 In this case, the plain language of the Town’s UDO contains the word

“development” in addition to prescribing policy goals for “adequate infrastructure

(transportation and utilities)” and “development of adjacent properties or other

neighborhood uses.” The intended regulation of the “development” of land to be used

for educational uses requires the provision of “off-premise sidewalks, multi-use trails

or paths, or greenways” to allow for accessibility by students to the schools and for

vehicular and pedestrian connectivity to surrounding residential areas.” Id. at 158,

731 S.E.2d at 812. Since the ordinance concerns a component of “essential

infrastructure” relating to “transportation and utilities” for an elementary and

secondary school within the Town’s planning jurisdiction, the Town and the superior

court erred in denying Petitioner’s Applications. See id.

¶ 77 Under this standard, Petitioner clearly produced competent, material, and

substantial evidence sufficient of a prima facie showing of entitlement to the

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respective permits. Petitioner’s evidence proffers to build a ten-foot-wide multi-use

path along the front of the property, inside the public right of way. The Town’s staff

reviewed Petitioner’s submittals and submitted a written report. The Town’s written

report noted no deficiencies or further improvements needed. No competent

testimony nor evidence contra was offered to challenge Petitioner’s evidence or this

report. While none of the Town’s commissioners stated UDO 3.7.5 was relevant to

the overall decision, Petitioner still offered competent, material, and substantial

evidence to meet those requirements by showing this multi-use 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.

¶ 78 The Commissioners violated their oath to be an impartial decision maker in a

quasi-judicial proceeding. 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. A “necessary prima facie case does not

involve determining whether the applicant met a burden of persuasion, as compared

to a burden of production, and is subject to de novo, rather than whole record, review

during the judicial review process.” PHG Asheville, LLC, 374 N.C. at 153 n5, 839

S.E.2d at 768 n5.

¶ 79 In addition to the Town staff’s testimony and report, Petitioner’s permit

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requests met Town ordinances at the quasi-judicial hearing. Nine witnesses, three

of which qualified and were received as experts, testified for Petitioner at the Town’s

public hearing. No one from the Town or any opponents presented any evidence of

noncompliance with any of the Town’s ordinances or policies. This evidence clearly

satisfied Petitioner’s burden of production at a quasi-judicial hearing to be issued the

special use permit.

¶ 80 Regarding Petitioner’s permit applications and the additional internal

sidewalks, the Town’s Mayor stated, “it’s not just that we can’t require it, it’s that we

cannot deny it because [of a lack of sidewalks].” The Town’s attorney affirmed this

statement. Petitioner provided competent evidence to show their application met all

requirements for approval.

¶ 81 The Town had accepted and affirmed Petitioner’s findings in its own set of

hearings on the issue. The Town offers no lawful basis to deny, and its

Commissioners were sworn to be impartial and to base their decision solely on the

record evidence, rather than their personal preferences or unsupported allegations.

Id. “[C]ommissioners cannot deny applicants a permit in their unguided discretion

or, stated differently, refuse it solely because, in their view, [it] would ‘adversely affect

the public interest.’” In re Application of Ellis, 277 N.C. 419, 425, 178 S.E.2d 77, 81

(1970).

¶ 82 Petitioner argues “N.C. Gen. Stat. § 115C-218.35 prevents the Town from using

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vague and general policies on school development to prevent the construction of a

[public] charter school in a specific location.” The Town admits it denied the

Applications solely because Petitioner failed “to include adequate sidewalks to satisfy

the [T]own[’]s policies and ordinances in contravention of UDO §§ 15.8.2 and 15.9.2[.]”

¶ 83 The Town’s quasi-judicial hearing “must also proceed under standards, rules,

and regulations, uniformly applicable to all who apply for permits.” Id. The Town’s

decision must be based solely upon the evidence presented at the hearing, by an

impartial decision maker, and any decision maker’s bias, personal and subjective

policy preferences are immaterial, are not evidence contra, and cannot support denial.

Id. (“[C]ommissioners cannot deny applicants a permit in their unguided discretion

or, . . . , refuse it solely because, . . . , [it] would ‘adversely affect the public interest.’”).

¶ 84 “The inclusion of a [permitted] use in a zoning district, even where a . . . permit

is required, establishes a prima facie case that the use conforms with the

comprehensive plan.” Am. Towers, Inc., 222 N.C. App. at 643, 731 S.E.2d at 703

(citing Woodhouse v. Bd. of Comm’rs, 299 N.C. 211, 216, 261 S.E.2d 882, 886 (1980)).

This prior legislative finding is binding upon the Town and is not subject to review

by the city, town, or the superior court during a quasi-judicial special use permit

hearing or review. Id.

¶ 85 Here, an elementary and secondary school is a permitted use within the RD

District of the Property with supplemental permit standards. Such educational uses

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as a permitted use in the RD District “establishes a prima facie case that the use

conforms with the comprehensive plan” to satisfy that factor. Id.

¶ 86 Again, we all agree policy S-1 is only a policy statement applicable to the

planning of a new school location. See Piney Mt. Neighborhood Ass’n, 63 N.C. App.

at 251, 304 S.E.2d at 255. The Town does not argue policy S-1 was implemented by

a zoning regulation, nor does the Town contest that it accepted Petitioner’s permit

applications for the Property as currently zoned, to be the new school site location for

Wake Prep. Petitioner’s Applications do not seek a rezoning of the Property.

¶ 87 Policy S-1 is solely advisory and is irrelevant to Petitioner’s Applications and

the Town’s and superior court’s reliance thereon is not a lawful basis to deny the Site

Plan Application. See id.; see C.C. & J. Enter., Inc. v. City of Asheville, 132 N.C. App.

550, 553, 512 S.E.2d 766, 769, disc. review improvidently allowed, 351 N.C. 97, 521

S.E.2d 117 (1999) (speculative assertions or mere expression of opinion about the

possible effects of granting a permit are insufficient to support the findings of a quasi-

judicial body); Jackson v. Guilford Cnty. Bd. of Adjustment, 275 N.C. 155, 164-65, 166

S.E.2d 78, 84-85 (1969) (the legislature may only confer upon a subordinate agency

the authority or discretion to execute a law if adequate guiding standards are laid

down).

1. Community Plan, Policy S-3

¶ 88 Policy S-3 provides: “[s]chool campuses shall be designed to allow safe,

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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.”

¶ 89 Similar to our analysis and conclusions of policy S-1, policy S-3 is also a policy

of the Town’s comprehensive plan, is not an ordinance, and can be changed at any

time. See Piney Mt. Neighborhood Ass’n, 63 N.C. App. at 251, 304 S.E.2d at 255.

Standing by itself, policy S-3 is only advisory and has no force of law. See id.

¶ 90 Petitioner’s site plan in evidence demonstrates it would dedicate a twenty-five-

foot right of way line along the frontage of the property and provide a ten-foot-wide

multi-use path one foot behind the right of way line. Petitioner also offered

unchallenged expert testimony tending to show “the [proposed] sidewalk . . . would

align with the entrance into Joyner Park and the trails within Joyner Park.” The

Town’s local ordinances requiring pedestrian connectivity and accessibility for

schoolchildren to a school is clearly pre-empted by N.C. Gen. Stat. § 160A-307.1.

¶ 91 We all agree the superior court erred in applying the whole record test in

considering whether Petitioner presented competent, material, and substantial

evidence. No competent, material, and substantial evidence contra rebuts

Petitioner’s prima facie showing. Upon de novo review Petitioner clearly met its

burden of production to show its compliance with § 3.7.5 of the Town’s UDO to

establish a prima facie case for entitlement of the permits.

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¶ 92 Upon de novo review of the order, as is required by statute and well-established

Supreme Court precedents, the superior court erred when it applied whole record

review and affirmed the Board’s decision. The decision was prejudicial and not

harmless. Petitioner clearly produced competent, material, and substantial evidence

to make a prima facie showing of entitlement to the respective permits. The Town’s

and the superior court’s reliance on this non-ordinance to deny Petitioner’s permit

was unlawful and is properly reversed.

IV. N.C. Gen. Stat. § 160A-307.1 Pre-emption

¶ 93 “Notwithstanding any provision of this Chapter to the contrary, a city may not

condition the approval of any zoning, rezoning, or permit request on the waiver or

reduction of any provision of this section.” N.C. Gen. Stat. § 160A-307.1 (emphasis

supplied). Petitioner contends N.C. Gen. Stat. § 160A-307.1 prohibits “municipalities

from requiring or otherwise conditioning approval of school construction on meeting

local street improvement requirements,” including sidewalk improvement

requirements. The language of the statute is clear, and no party asserts it contains

any ambiguity. Id.

¶ 94 The analysis of whether Petitioner met the requirements of the Town’s UDO

is subject to and must be reviewed under N.C. Gen. Stat. § 160A-307.1, which pre-

empts and controls this issue. The Town is statutorily barred from withholding or

conditioning the issuance of permits based upon “an out-and-out plan of extortion” or

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other interior site improvements. Nollan v. California Coastal Comm., 483 U.S. 825,

837, 97 L. Ed. 2d 677, 689 (1987).

¶ 95 N.C. Gen. Stat. § 160A-307.1 provides in pertinent part:

A city may only require street improvements related to

schools that are required for safe ingress and egress to the

municipal street system and that are physically connected

to a driveway on the school site. The required

improvements shall not exceed those required pursuant to

[N.C. Gen. Stat. §] 136-18(29).

N.C. Gen. Stat. § 160A-307.1 (emphasis supplied).

¶ 96 Petitioner correctly asserts the plain text of the statute indicates the

legislature’s intent to pre-empt and limit a municipality’s “ability to require ‘street

improvements’ for schools to only those which are required for safe ingress and egress

‘to the municipal street system’ and are physically connected to the school’s

driveway.”

A. Definitions

¶ 97 Petitioner asserts the inclusion of the broad definition of “improvements” found

under N.C. Gen. Stat. § 136-18(29a) controls the definition of “street improvements”

under N.C. Gen. Stat. § 160A-307.1. Petitioner reasons N.C. Gen. Stat. § 160A-307.1

specifically references “[t]he required improvements” in citing “improvements shall

not exceed those required” in N.C. Gen. Stat. § 136-18(29). N.C. Gen. Stat. § 160A-

307.1.

¶ 98 N.C. Gen. Stat. § 136-18(29a) provides: “[t]he term ‘improvements,’ as used in

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this subdivision, refers to all facilities within the right-of-way required to be installed

to satisfy the road cross-section requirements depicted upon the approved plans,”

including, inter alia, roadway construction, ditches and shoulders, and sidewalks.

N.C. Gen. Stat. § 136-18(29a) (2021) (emphasis supplied).

¶ 99 Petitioner contends the definition of “improvements” used in N.C. Gen. Stat. §

136-18(29a) “controls [in this case] because it comes from a statute that limits the

types of roadway improvements that can be imposed on schools by government.”

¶ 100 The use of the phrase “as used in this subdivision,” clearly indicates the

legislature’s intent to restrict this definition of general “improvements” to this

subsection. Additionally, N.C. Gen. Stat. § 136-18(29), the statute cited in N.C. Gen.

Stat. § 160A-307.1, is referring only to driveway connections—not sidewalks.

¶ 101 The statute also contains the express limitation a city “may only require street

improvements . . . [which] are required for safe ingress and egress to the municipal

street system and that are physically connected to a driveway on the school site.”

N.C. Gen. Stat. § 160A-307.1 (2021) (emphasis supplied). By its own terms, the

statute limits internal on-site improvements such as sidewalks, bike paths, trails,

etc. to link a school campus to surrounding neighborhood.

¶ 102 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.” Id. This limiting language

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of the statute could not be plainer.

¶ 103 While “street improvements” are not defined in Chapter 160A, the ordinary

meaning of the words are used that comprise the term. See State v. Rieger, 267 N.C.

App. 647, 649, 833 S.E.2d 699, 701 (2019). According to The American Heritage

College Dictionary, a “street” is defined as “a public way or thoroughfare in a city or

town, usu[ally] with a sidewalk or sidewalks.” Street, The American Heritage College

Dictionary (3d ed. 1993) (emphasis supplied). An “improvement” is defined as “the

act or process of improving.” Improvement, The American Heritage College Dictionary

(3d ed. 1993). “Improve” means “to . . . make better.” Improve, The American

Heritage College Dictionary (3d ed. 1993).

B. Application

¶ 104 Applying the ordinary meaning of the word “street” to the statute at issue, “[a]

city may only require street improvements” of thoroughfares—and potentially

improvements of sidewalks solely as “required for safe ingress and egress to the

municipal street system and [is] physically connected to a driveway on the school

site.” N.C. Gen. Stat. § 160A-307.1. Presuming N.C. Gen. Stat. § 160A-307.1 was

ambiguous and requires statutory interpretation, the inclusion of the word “street”

in the statute includes sidewalks.

¶ 105 For more than a century, our appellate courts have held the “street” includes

sidewalks. See Willis v. New Bern, 191 N.C. 507, 510, 132 S.E. 286, 287 (1926) (“[A]

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street includes the roadway . . . and sidewalks.”); see also Hester v. Durham Traction

Co., 138 N.C. 288, 291, 50 S.E. 711, 713 (1905) (“The rights, powers, and liability of

the municipality extend equally to the sidewalk as to the roadway, for both are parts

of the street.”); see also State v. Mabe, 85 N.C. App. 500, 503, 355 S.E.2d 186, 188

(1987)(citation omitted) (“By way of analogy, courts have universally held that a

‘street’ includes not only the roadway and travelled portions but also the sidewalks.”).

C. Contradiction with Town Ordinances

¶ 106 The Town’s and the superior court’s position not only contradicts § 160A-307.1,

it contradicts its own ordinance enforcement, which treats sidewalks as “street

improvements.”

¶ 107 To prevent municipalities from attempting to evade the restrictions of § 160A-

307.1 by narrowly defining what constitutes “street improvements” in their

jurisdictions, the legislature provided such “improvements” include “all facilities

within the right-of-way required to be installed to satisfy the road cross-section

requirements” of the local government. N.C. Gen. Stat. § 136-18(29a).

¶ 108 In this case, “sidewalks” are included by name in the facilities the Town’s

ordinances require to be installed in the street improvements right-of-way. The

inclusion of sidewalks within the required “street improvements” is expressly

illustrated in the Town’s staff report on Petitioner’s Applications and its opinion of

Petitioner’s compliance therewith.

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¶ 109 The Town’s ordinances state sidewalks are “required street improvements.”

UDO § 6.6.2(E). The Town’s arguments and the majority opinion’s conclusion that

the UDO requires more and can exceed and violate the express limitations in the

statute are wholly without merit. N.C. Gen. Stat. § 160A-307.1 bars the Town from

extorting and conditioning approval of Petitioner’s special use permit and a

subdivision application on such further internal site improvements. The Town’s

arguments are without merit.

V. Conclusion

¶ 110 We all agree the Town’s motion to dismiss Petitioner’s appeal is properly

denied because the issues presented on appeal are not moot. We also agree the

superior court erred in applying the whole record test in considering whether

Petitioner produced competent, material, and substantial evidence. Plan policies are

not ordinances, do not have the force of law, and are not competent evidence contra

to defeat a prima facie case to support denial of a use permit. There is no dispute

Petitioner satisfied two of the required findings and the Town does not argue

otherwise. I fully concur with the majority’s opinion on these conclusions.

¶ 111 When properly reviewed narrowly and construed in favor of the free use of

private property, I disagree a de novo review of the record reveals Petitioner failed to

meet its burden of production to show compliance with § 3.7.5 of the Town’s UDO and

N.C. Gen. Stat. § 160A-307.1. As the Mayor and Town attorney agreed and advised

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the other Commissioners, Petitioner clearly met its burden of production at the quasi-

judicial hearing before impartial decision makers and, with no evidence in the record

contra, established a prima facie case for entitlement to the permits.

¶ 112 I also disagree with the majority’s notion N.C. Gen. Stat. § 160A-307.1 does not

pre-empt the Town’s non-ordinance policy statements from requiring further internal

pedestrian improvements beyond those specified in the statute.

¶ 113 Under de novo review, the order is affected by prejudicial errors, is properly

vacated in its entirety, and remanded to the superior court with instructions to order

the Town to issue Petitioner’s permits. I concur in part and respectfully dissent in

part.