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 RespondentAppellee.

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. § 160A307.1 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. § 160A307.1, 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. § 160A307.1 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. § 160A307.1 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 ClaytonMarcus 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.merriamwebster.com/dictionary/street (last visited June 9, 2022) (emphasis added). An 

“improvement” means “the act or process of improving.” Improvement, MerriamWebster, https://www.merriam-webster.com/dictionary/improvement (last visited 
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June 9, 2022). “Improve” means “to make (something better).” Improve, MerriamWebster, 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. § 160A307.1. 

¶ 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. § 160A307.1 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. § 115C218.35(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. § 160A307.1. 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. § 160A393, 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 rezoning 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 quasijudicial 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-fivefoot 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 preempts 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. § 160A307.1. 

¶ 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 § 160A307.1 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 quasijudicial 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.