By Mitch Kokai
North Carolina’s highest court recently issued a ruling boosting school choice. Yet its reasoning had nothing to do with education options. Instead, the court relied on fundamental notions of property rights.
The case Schooldev East v. Town of Wake Forest pitted a charter school developer against a local elected board with clear hostility toward nontraditional schools.
The developer applied in November 2019 to build Wake Preparatory Academy on a 35-acre parcel in Wake Forest. When town commissioners considered the plan in October 2020, some objected to issuing permits for a charter school.
“Despite the Town attorney’s admonition, the commissioners’ deliberations went beyond the evidence introduced at the quasi-judicial hearing,” according to the state Supreme Court’s Dec. 13 majority opinion. “Some commissioners worried that the proposed charter school would have a negative impact on a nearby public elementary school.”
“One commissioner remarked that the elementary school had an occupancy level of just sixty-seven percent,” according to the court decision. “Another opined that ‘with [the charter school] directly abutting [the elementary] school that’s below occupancy,’ the charter school would ‘draw students from [the elementary school] which means less money going into [the elementary] school.’”
Rather than voting based on outright opposition to the charter school, the board instead focused on Wake Forest’s “residential connectivity requirement.”
Schooldev’s plans called for a 10-foot-wide “multi-use path.” It would offer pedestrian and bicycle access to a nearby public park and a future 273-home subdivision. Plans did not include sidewalks leading to other neighborhoods.
“Several commissioners expressed their belief that the subdivision plan did not provide adequate pedestrian and cycling accessibility,” the Supreme Court opinion explained. “The discussion then turned to whether the Town could lawfully mandate that developers construct sidewalks connecting schools to surrounding neighborhoods.”
Wake Forest’s town attorney advised commissioners that state law “preempted such action. The commissioners disregarded that advice and unanimously voted to deny the subdivision plan based on lack of compliance” with town rules.
A trial judge and split North Carolina Court of Appeals panel upheld Wake Forest’s decision.
Republican members of the state Supreme Court reversed course. Schooldev presented “competent, material, and substantial evidence of compliance” with the town’s ordinance, and commissioners had no evidence “to support a finding to the contrary,” Justice Trey Allen wrote for a 5-2 court majority.
Wake Forest “essentially concedes” that its ordinance “is unclear,” Allen wrote. “[W]e consult this Court’s precedents on the correct interpretation of uncertain provisions in land use ordinances. These precedents instruct us to resolve any ‘well-founded doubts’ about a provision’s meaning ‘in favor of the free use of property.’”
“This is no arbitrary canon of construction,” Allen explained. “It reflects our state’s longstanding public policy favoring the ‘free and unrestricted use and enjoyment of land.’ … That public policy recognizes and preserves the foundational place of property rights in our constitutional order.”
“If local governments adopt ordinances that interfere with property rights, they owe it to property owners to use plain language,” Allen added. “Property owners should not need law degrees to figure out what local government ordinances allow them to do with their own land.”
“Consistent with our precedents, we resolve our doubts about the meaning of [the ordinance] against the Town and in favor of the free use of property,” Allen added. The bottom line: Wake Forest’s rules do not require foot and bike access to every neighborhood surrounding a school.
The high court’s two Democrats dissented. The Republican majority issued a decision that “renders a clear ordinance meaningless,” Justice Allison Riggs wrote. “How does it do this? By invoking the ‘free use of land’ canon of statutory construction.”
That canon is “reserved only for ambiguous ordinances” and “cannot be used to sidestep the ordinance’s purpose,” Riggs added.
“Notwithstanding the ordinance’s straightforward language and purpose, the majority invokes the free use of land canon to defang a legitimate local regulation of property rights,” she wrote.
Yet Riggs’ interpretation collected just two votes. Five votes supported Allen’s view.
“The public policy of North Carolina encourages ‘the free and unrestricted use and enjoyment of land,’” he wrote. “This policy advances our state’s enduring commitment to property rights.”
“Although this Court will uphold legitimate ordinances, the state’s public policy disfavoring property restrictions influences how we construe unclear or ambiguous ordinance provisions in disputes between property owners and local governments. Specifically, this Court will resolve any well-founded doubts about a provision’s meaning in favor of ‘the free use of land,’” the Supreme Court majority concluded.
In this case, protecting property rights also boosted one alternative to North Carolina’s education establishment.
Mitch Kokai is senior political analyst for the John Locke Foundation.
