IN THE SUPREME COURT OF NORTH CAROLINA
No. 268A22
Filed 13 December 2024
SCHOOLDEV EAST, LLC
v. TOWN OF WAKE FOREST
On discretionary review pursuant to N.C.G.S. § 7A-31 and on appeal pursuant
to N.C.G.S. § 7A-30(2) (2023) from the decision of a divided panel of the Court of
Appeals, 284 N.C. App. 434 (2022), affirming an order entered on 14 April 2021 by
Judge Vince Rozier in Superior Court, Wake County. On 6 April 2023, the Supreme
Court allowed respondent’s conditional petition for discretionary review as to
additional issues. Heard in the Supreme Court on 9 April 2024.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by J. Mitchell Armbruster, Tobias R. Coleman, and Amy Crout; 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, D. Scott Hazelgrove II, and T. Nelson Hughes Jr., for respondent-appellee.
Robinson, Bradshaw & Hinson, P.A., by Richard A. Vinroot and Jazzmin M. Romero, for North Carolina Coalition of Charter Schools, amicus curiae.
Van Winkle, Buck, Wall, Starnes & Davis, P.A., by Craig D. Justus; and J. Michael Carpenter for North Carolina Home Builders Association, Inc., amicus curiae.
ALLEN, Justice. SCHOOLDEV E., LLC V. TOWN OF WAKE FOREST
Opinion of the Court
The public policy of North Carolina encourages “the free and unrestricted use
and enjoyment of land.” Kirby v. N.C. Dep’t of Transp., 368 N.C. 847, 852 (2016)
(cleaned up). This policy advances our state’s enduring commitment to property
rights. See id. at 852–53 (“The fundamental right to property is as old as our state.”
(citing N.C. Const. of 1776, Declaration of Rights § XII; Bayard v. Singleton, 1 N.C.
(Mart.) 5, 9 (1787))).
At the same time, laws enacted by our General Assembly grant counties and
municipalities significant authority to adopt and enforce zoning and other land use
ordinances that limit what property owners may do with or on real property.
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.” Westminster Homes, Inc. v. Town of Cary
Zoning Bd. of Adjustment, 354 N.C. 298, 308 (2001).
The outcome of this litigation between respondent Town of Wake Forest and
petitioner Schooldev East, LLC, depends on the proper interpretation of a provision
in the Town’s Unified Development Ordinance (UDO). The Town relied on the
provision to deny petitioner’s applications for permits necessary for the construction
of a proposed charter school. Because the provision’s meaning is unclear, the Court
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of Appeals should have construed it in favor of the free use of land. The Court of
Appeals instead adopted the Town’s interpretation and ruled against petitioner.
When properly construed, the UDO provision does not sustain the denial of
petitioner’s applications, which petitioner supported with competent, material, and
substantial evidence. We therefore reverse the decision of the Court of Appeals and
remand this case with instructions to the Town to approve petitioner’s applications.
I. Background
Petitioner proposed to build a charter school in the Town. To that end,
petitioner agreed to purchase some thirty-five acres of a roughly sixty-eight-acre tract
of land owned by Jane Harris Pate and located on Harris Road. On 4 November 2019,
petitioner applied to the Town for a major subdivision plan permit and a major site
plan permit.1 If granted, the subdivision permit would have resulted in the division
of the Pate tract into three parcels, with petitioner’s thirty-five-acre parcel in the
middle. The site plan permit application sought approval for the construction of the
charter school on the middle parcel (campus lot).
1 As defined by the UDO, “[a] site plan is an architectural and/or engineering drawing
of proposed improvements for a specific location that depicts such elements as building footprints, driveways, parking areas, drainage, utilities, lighting, and landscaping.” Town of Wake Forest UDO, § 6.2.1(D). A “major site plan” refers to permit applications that “include 100 or more residential dwelling units and to all development applications which require an Enhanced Transportation Impact Analysis.” Id. § 15.8.2(A). A “major subdivision plan” involves permit applications requiring “divisions of land into [four] or more lots, or which require dedication of public utilities and/or public streets.” Id. § 15.9.2(A).
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On 3 September 2020, pursuant to procedures outlined in the Town’s UDO, the
Town’s planning board and board of commissioners (BOC) held a joint public hearing
and quasi-judicial hearing during which petitioner’s legal counsel presented evidence
including maps, graphs, reports, and witness testimony in support of petitioner’s
applications. A substantial portion of the presentation was devoted to explaining how
the applications complied with section 3.7.5 in the UDO’s supplemental use
standards for elementary and secondary schools, which reads in pertinent part:
A. For Schools in the RD[2] Zone Only: To encourage walking and bicycle accessibility by schoolchildren to schools, it shall be required by 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.
B. For All Schools:
....
2. Connectivity (vehicular and pedestrian) to surrounding residential areas is required. Where a full vehicular connection is impractical, a multi-use trail connection shall be provided.
Petitioner’s evidence indicated that petitioner intended to construct a ten-foot-
2 “RD” refers to the Town’s “rural holding district.” A rural holding district is a district
where “the principal uses of the land are restricted due to lack of available utilities, unsuitable soil types[,] or steep slopes.” It is “intended for low density with the maximum density for residential developments within” the district being “1 unit per acre.” The campus lot was in the Town’s rural holding district.
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wide multi-use path along the entire Harris Road frontage of the campus lot. The
multi-use path would have provided pedestrian and bicycle access to Joyner Park, a
public park across the road from the campus lot with more than three miles of paved
trails. It would also have provided pedestrian and bicycle access to a future 273-home
subdivision on the other side of Harris Road.
No one challenged petitioner’s evidence or introduced evidence in opposition
thereto. On the contrary, the Town’s planning staff advised the planning board and
the BOC that N.C.G.S. § 160A-307.1 prevented the Town from requiring petitioner to
“install[ ] road, curb/gutter[,] and multiuse path improvements.” Under that statute,
“[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.” N.C.G.S. § 160A-307.1 (2023).
By a four-to-three vote, the planning board recommended that the BOC deny
petitioner’s applications. The BOC subsequently considered the applications at its
meeting on 20 October 2020. According to the UDO, each application had to comply
with the following standards:
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
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neighborhood uses.
Town of Wake Forest UDO, §§ 15.8.2(J) (major site plans), 15.9.2(J) (major
subdivision plans).
The Town attorney advised the commissioners that they could not simply
endorse the planning board’s recommendation. Rather, they had to determine
independently whether “competent, substantial, and material evidence in the record”
satisfied the four UDO standards listed above.
The BOC took up petitioner’s site plan first. Despite the Town attorney’s
admonition, the commissioners’ deliberations went beyond the evidence introduced
at the quasi-judicial hearing. 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. 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.”
Ultimately, one of the commissioners moved to deny the site plan for lack of
compliance with Standards 1 and 2.3 With respect to Standard 1, the commissioner
3 The commissioner also moved to deny the site plan application for noncompliance
with Standard 4. However, the superior court later ruled that petitioner presented sufficient
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asserted that the site plan was inconsistent with aspects of the Town’s comprehensive
plan. See generally N.C.G.S. § 160D-501(a1) (2023) (“A comprehensive or land‑use
plan is intended to guide coordinated, efficient, and orderly development within the
planning and development regulation jurisdiction based on an analysis of present and
future needs.”).4 In particular, the commissioner pointed to the comprehensive plan’s
statement that school designs should allow safe pedestrian access from adjacent
neighborhoods. To justify denial under Standard 2, the commissioner highlighted the
residential connectivity requirement in UDO § 3.7.5(B). The commissioners
unanimously voted in favor of the motion to deny the site plan.
The BOC’s discussion of the subdivision plan centered on UDO § 3.7.5(A).
Several commissioners expressed their belief that the subdivision plan did not
provide adequate pedestrian and cycling accessibility. The discussion then turned to
whether the Town could lawfully mandate that developers construct sidewalks
connecting schools to surrounding neighborhoods. The Town attorney advised the
BOC that N.C.G.S. § 160A-307.1 preempted such action. The commissioners
disregarded that advice and unanimously voted to deny the subdivision plan based
on lack of compliance with UDO § 3.7.5(A).
evidence of compliance with Standard 4, and the Town did not appeal that ruling. Accordingly, this issue is not before us. 4 When petitioner filed its applications, the relevant enabling legislation was codified
in Chapter 160A. In 2019, the General Assembly consolidated and recodified the land use enabling laws into Chapter 160D. This recodification has no bearing on our disposition.
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The BOC reduced its decisions to writing in two orders dated 17 November
2020. The first denied the site plan application because petitioner “failed to
demonstrate compliance with UDO [§ 3.7.5(B)], which requires connectivity
(vehicular and pedestrian) to surrounding residential areas.” The second order denied
the subdivision plan application because “the evidence submitted failed to
demonstrate how the application was complying with UDO [§ 3.7.5(A)], which states
that, schools in the RD zone are to encourage walking and bicycle accessibility by
school children to schools.”
Petitioner sought review of the BOC’s orders in the Superior Court, Wake
County. Following a hearing, the superior court entered an order on 14 April 2021
affirming those orders. The court rejected petitioner’s contention that the denial of
its applications violated N.C.G.S. § 160A-307.1. According to the court, the BOC
“properly analyzed the scope of [N.C.G.S. § 160A-307.1] and determined that it did
not preempt Town plans and ordinances requiring [petitioner] to demonstrate
pedestrian and bicycle connectivity.” The superior court further concluded, based on
a review of the whole record, that the site plan failed to satisfy “the Town’s plans and
ordinances requiring pedestrian and bicycle connectivity” and “[a]s a result, the
[BOC] properly denied both the [s]ite [p]lan [a]pplication and the [s]ubdivision
[a]pplication.” Petitioner appealed.
A divided panel of the Court of Appeals affirmed the superior court’s order.
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Schooldev E., LLC v. Town of Wake Forest, 284 N.C. App. 434, 448 (2022). As a
threshold matter, the majority agreed with petitioner that the superior court “erred
when it applied whole record review to the issue of whether the burden of production
is met.” Id. at 444 (cleaned up). The superior court “should have ‘applied de novo
review to determine the initial legal issue of whether [p]etitioner had presented
competent, material, and substantial evidence.’ ” Id. (quoting PHG Asheville, LLC v.
City of Asheville, 262 N.C. App. 231, 241 (2018), aff’d, 374 N.C. 133 (2020)).
Nonetheless, the majority held that the superior court “correctly affirmed the [BOC’s]
decisions because [p]etitioner failed to meet its burden of production to show it [was]
entitled to the requested permits.” Schooldev, 284 N.C. App. at 444.
In reaching its holding, the majority acknowledged that N.C.G.S. § 160A-307.1
restricts the ability of municipalities to require street improvements for new schools.
Id. at 447–48. The majority reasoned, however, that the statute did not control the
outcome of this case because “the term ‘street improvements’ referred to in [N.C.G.S.]
§ 160A-307.1 does not include sidewalk improvements.” Id. at 448.
Turning to UDO Standard 1 (consistency with the Town’s plans and policies),
the majority examined whether petitioner made a sufficient showing that its site and
subdivision plans were “consistent with the adopted plans and policies of the Town.”
Id. at 449 (cleaned up). It noted that the BOC considered the comprehensive plan’s
policy that “school campuses shall be designed to allow safe, pedestrian access from
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adjacent neighborhoods.”5 Id. at 450 (cleaned up). Although comprehensive plans
themselves are merely advisory in nature, the majority characterized UDO § 3.7.5 as
“an ordinance by which [this policy] was implemented.” Id. at 451; see also N.C.G.S.
§ 160D-501(c) (stating that comprehensive plans “shall be advisory in nature without
independent regulatory effect”). Thus, “[p]etitioner’s failure to satisfy UDO § 3.7.5
was a proper basis on which the Town denied [p]etitioner’s applications.” Schooldev,
284 N.C. App. at 451.
Similarly, the majority determined that UDO Standard 2 (compliance with
UDO requirements) mandated that petitioner’s site and subdivision plans satisfy
UDO § 3.7.5. Id. The majority expressly rejected petitioner’s argument that UDO
§ 3.7.5 was a zoning ordinance and therefore was “inapplicable to [petitioner’s]
subdivision request.” Id. It then explained why, in its view, petitioner’s evidence did
not rise to the level of competent, material, and substantial evidence.
Our review of the record shows [p]etitioner 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
5 The BOC had also concluded that petitioner’s plans failed to satisfy the comprehensive plan’s policy that school locations “should serve to reinforce desirable growth patterns rather than promoting sprawl.” Schooldev, 284 N.C. App. at 437. However, because the BOC had not adopted a zoning regulation to implement this policy, the Court of Appeals majority held that the policy was “solely advisory” and thus “was not a proper basis for the [BOC] to deny the [s]ite [p]lan [a]pplication.” Id. at 450. The Town did not seek our review of this issue.
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the entrance into Joyner Park and the trails within Joyner Park. Since [p]etitioner 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 [BOC’s] decision to deny the [a]pplications.
Id. at 452–53 (cleaned up).
The dissenting judge agreed that the superior court erred by applying the
whole record test. Id. at 453 (Tyson, J., concurring in part and dissenting in part).
Unlike the majority, however, the dissenting judge would have held (1) that N.C.G.S.
§ 160A-307.1 barred the Town from requiring petitioner and other school developers
to construct “sidewalks, bike paths, trails, etc. to link . . . school campus[es] to
surrounding neighborhood[s]” and (2) that “[p]etitioner clearly produced competent,
material, and substantial evidence to make a prima facie showing of entitlement to
the respective permits.” Id. at 461, 463.
Petitioner filed a notice of appeal based on the dissent in the Court of Appeals.
Although it has since been repealed, N.C.G.S. § 7A-30(2) then created a right of
appeal to this Court “from any decision of the Court of Appeals rendered in a case . . .
[i]n which there is a dissent when the Court of Appeals is sitting in a panel of three
judges.” See N.C.G.S. § 7A-30(2) (2023), repealed by Current Operations
Appropriations Act of 2023, S.L. 2023-134, § 16.21(d)–(e),
https://www.ncleg.gov/Sessions/2023/Bills/House/PDF/H259v7.pdf. Pursuant to
N.C.G.S. § 7A-31, the parties filed petitions for discretionary review asking us to
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consider additional issues. We allowed their petitions.6
II. Judicial Review of Quasi-Judicial Decisions
“Quasi-judicial decisions involve the application of ordinance policies to
individual situations rather than the adoption of new policies.” David W. Owens,
Land Use Law in North Carolina 6 (4th ed. 2023). The BOC’s decisions in this case
qualify as quasi-judicial because in making them the BOC had to “find[ ] . . . facts
regarding the specific proposal[s] and . . . exercise . . . some judgment and discretion
in applying predetermined policies to the situation.” Id.; see also County of Lancaster
v. Mecklenburg County, 334 N.C. 496, 507 (1993) (“In the zoning context, these quasi-
judicial decisions involve the application of zoning policies to individual situations,
such as variances, special and conditional use permits, and appeals of administrative
determinations.”).
When considering permit applications in a quasi-judicial capacity, a local
government board “must determine whether ‘[the] applicant has produced competent,
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.’ ”
6 In its petition for discretionary review, petitioner asked this Court to consider whether the Town had “the statutory authority to require a school to provide off-site sidewalk improvements under the power granted by N.C.G.S. § 160A-372 (now N.C.G.S. § 160D-804).” The Town’s petition requested that we determine whether the decision of the Court of Appeals majority “equate[d] to a finding . . . that the Town could require sidewalk improvements on land outside of the subdivision.” We conclude at the end of this opinion that there is no need for us to decide these additional issues.
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PHG Asheville, 374 N.C. at 149 (quoting Humble Oil & Refin. Co. v. Bd. of Aldermen,
284 N.C. 458, 468 (1974)). Competent evidence is evidence that is relevant and
admissible. Competent Evidence, Black’s Law Dictionary (12th ed. 2024). Material
evidence has “some logical connection with the facts of the case or the legal issues
presented.” Material Evidence, Black’s Law Dictionary (12th ed. 2024). Substantial
evidence consists of “more than a mere scintilla. It means such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Humble Oil,
284 N.C. at 470–71 (cleaned up).
By satisfying its initial burden of production, an applicant makes a prima facie
case that the permit should be issued. Id. at 468. The board must then grant the
application unless it makes contrary findings that are likewise supported by
“competent, material, and substantial evidence appearing in the record.” Id. A
decision to deny the application must rest on one or more grounds set out in the
ordinance. Id. In short, the board must base its decision on the evidence and the text
of the ordinance, not on the biases or whims of its members.
“Appeals of [a local government board’s] quasi-judicial decisions go directly to
superior court.” Owens, Land Use Law, at 266; see also N.C.G.S. § 160D-1402(b)
(2023) (“An appeal in the nature of certiorari shall be initiated by filing a petition for
writ of certiorari with the superior court.”). When reviewing a quasi-judicial decision
by a local government board, the superior court does not function as a trial court;
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rather, it “sits in the posture of an appellate court[ ] and . . . reviews th[e] evidence
presented to the [local government] board.” PHG Asheville, 374 N.C. at 149 (quoting
Mann Media, Inc. v. Randolph Cnty. Plan. Bd., 356 N.C. 1, 12–13 (2002)).
The superior court reviews the board’s decision to determine whether it was:
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 statute or ordinance[;] d. Affected by other error of law[;] e. Unsupported by competent, material, and substantial evidence in view of the entire record[; or] f. Arbitrary or capricious.
N.C.G.S. § 160D-1402(j)(1).
The standard of review used by the superior court depends on the precise
issues raised on appeal. PHG Asheville, 374 N.C. at 150. If a petitioner alleges that
the board made an error of law, the court reviews the alleged error de novo,
“consider[ing] the matter anew and freely substitut[ing] its own judgment for the
[board’s] judgment.” Id. (quoting Mann Media, 356 N.C. at 13–14); see also N.C.G.S.
§ 160D-1402(j)(2) ( “The court shall consider the interpretation of the decision‑making
board [when reviewing an alleged error of law], but is not bound by that
interpretation, and may freely substitute its judgment as appropriate.”).
On the other hand, if a petitioner alleges that the board’s action was
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unsupported by competent, material, and substantial evidence or was arbitrary or
capricious, the court undertakes a whole record review. PHG Asheville, 374 N.C. at
150–51. “In conducting a whole record review, the [superior] court must examine all
competent evidence (the ‘whole record’) in order to determine whether the [board’s]
decision is supported by substantial evidence.” Id. at 151 (cleaned up).
The decision of the superior court is subject to appeal. In such cases, the Court
of Appeals analyzes the superior court’s order for errors of law by “(1) determining
whether the [superior] court exercised the appropriate scope of review and, if
appropriate, (2) deciding whether the court did so properly.” Id. (quoting Mann
Media, 356 N.C. at 14). “In the event that the case under consideration reaches this
Court after a decision by the Court of Appeals, the issue before this Court is whether
the Court of Appeals committed any errors of law.” Id.
III. Analysis
To examine the Court of Appeals’ decision for errors of law, this Court must
“make the same inquiry that the Court of Appeals was called upon to undertake in
reviewing the [superior] court’s order. As a result, we will now examine whether the
[superior] court utilized the appropriate standard of review and, if so, whether it did
so properly.” See id.
As we have seen, whole record review is the proper standard of review for
allegations that a local government board did not base its quasi-judicial decision on
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competent, material, and substantial evidence. Yet the question before the superior
court was not whether competent, material, and substantial evidence in the record
supported the BOC’s decision. Instead, the question was whether the evidence
petitioner submitted to satisfy its initial burden of production amounted to
competent, material, and substantial evidence. Under this Court’s precedent,
answering that second question “involves the making of a legal, rather than a factual,
determination.” PHG Asheville, 374 N.C. at 152. Accordingly, the Court of Appeals
majority rightly held that the superior court erred by not conducting a de novo review.
Id. at 152–53; see also N.C.G.S. § 160D-1402(j)(2) (“Whether the record contains
competent, material, and substantial evidence is a conclusion of law, reviewable de
novo.”).
“If a [superior] court fails to properly make a de novo review” of alleged errors
of law, “the appellate court can apply a de novo review rather than remand the case”
where, as here, “the record on appeal . . . provide[s] the requisite information for the
review.” Owens, Land Use Law, at 653. Consequently, we review de novo whether
petitioner met its initial burden of production.
In its principal brief to this Court, petitioner offers three main reasons for
reversing the Court of Appeals majority’s ruling that “[p]etitioner failed to meet its
burden of production to show it met [UDO § 3.7.5] to establish a prima facie case for
entitlement of the permits.” Schooldev, 284 N.C. App. at 453. First, petitioner argues
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that the Town exceeded its statutory authority by, among other things, erroneously
relying on UDO § 3.7.5 to deny petitioner’s subdivision permit request even though
UDO § 3.7.5 is a zoning ordinance, not a subdivision ordinance. See generally Lanvale
Props., LLC v. County of Cabarrus, 366 N.C. 142, 158-59 (2012) (explaining that
“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 [local government’s] territorial jurisdiction”).
Second, petitioner maintains that N.C.G.S. § 160A-307.1 largely preempts the
pedestrian and bicycle connectivity requirements in UDO § 3.7.5. Third, petitioner
argues that it presented sufficient evidence of compliance with UDO § 3.7.5 and so
should have been granted the requested permits in any event.
We agree with petitioner’s third argument. As explained below, petitioner
carried its initial burden of production by presenting competent, material, and
substantial evidence of compliance with UDO § 3.7.5, and the BOC did not have
before it any competent, material, and substantial evidence to support a finding to
the contrary. Hence, the BOC should have approved petitioner’s permit applications
regardless of whether UDO § 3.7.5 qualifies as a subdivision ordinance or N.C.G.S.
§ 160A-307.1 preempts UDO § 3.7.5. We therefore do not reach petitioner’s first two
arguments.
In its brief to this Court, the Town argues that petitioner’s evidence was
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insufficient because UDO § 3.7.5 “does not require connectivity to just one
‘surrounding residential area,’ but instead to all surrounding residential areas.” The
Court of Appeals majority appears to have adopted the Town’s interpretation of UDO
§ 3.7.5. See Schooldev, 284 N.C. App. at 453 (noting that petitioner’s plans “would
provide pedestrian connectivity to only one residential neighborhood”).
The dispositive issue on appeal is thus whether UDO § 3.7.5 mandates
pedestrian and bicycle connectivity to all residential areas surrounding the campus
lot. To resolve this matter, we again refer to the text of UDO § 3.7.5.
A. For Schools in the RD Zone Only: To encourage walking and bicycle accessibility by schoolchildren to schools, it shall be required by 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.
2. Connectivity (vehicular and pedestrian) to surrounding residential areas is required. Where a full vehicular connection is impractical, a multi-use trail connection shall be provided.
Although UDO § 3.7.5(A) requires a permit applicant to demonstrate how its
plans can achieve pedestrian and bicycle connectivity, it does not expressly declare
that the applicant’s plans must provide connectivity to all surrounding residential
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areas. Similarly, while UDO § 3.7.5(B)(2) declares that pedestrian connectivity “to
surrounding residential areas is required,” it does not state that connectivity to all
surrounding residential areas is necessary.
In some of its arguments to this Court, the Town essentially concedes that
UDO § 3.7.5 is unclear. It admits that municipalities lack statutory authority to
compel developers to build streets or roads outside their respective subdivisions. See
Buckland v. Haw River, 141 N.C. App. 460, 463 (2000) (holding that the subdivision
enabling statute “does not empower municipalities to require a developer to build
streets or highways outside its subdivision”). For this reason, the Town insists that
UDO § 3.7.5 should not be interpreted to require the construction of sidewalks or
other improvements across land outside a developer’s subdivision site. Thus,
according to the Town, the term “off-premise” in UDO § 3.7.5(A) does not refer to
areas outside a subdivision; rather, “off-premise” means “off the school’s premises
(the school’s campus) but still within the subdivision site.” While the Town’s narrow
interpretation of “off-premise” may not contradict anything in UDO § 3.7.5(A), it is
not obvious from the text of the ordinance that the BOC used the term with that
meaning in mind.
Furthermore, if we accept the Town’s position that UDO § 3.7.5 does not
mandate off-site improvements, it appears that there could be scenarios in which
UDO § 3.7.5(B)(2) would not mandate pedestrian connectivity to all surrounding
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residential areas. Under the Town’s reading, UDO § 3.7.5(B)(2) cannot be understood
to require connectivity to a surrounding residential area if providing it would entail
the construction of a sidewalk or multi-use path outside the developer’s subdivision.
This situation might arise, for instance, where an empty lot separates the subdivision
site for a proposed school from a nearby neighborhood. Perhaps the BOC did not
intend the phrase “surrounding residential areas” in UDO § 3.7.5(B)(2) to include any
neighborhood that does not actually share a border with the developer’s subdivision
site. We cannot reach that conclusion based solely on the text of UDO § 3.7.5 or
related UDO provisions, however.
As if it were checkmate, our dissenting colleagues point to dictionary
definitions of “surrounding” to argue that the phrase “surrounding residential areas”
is not ambiguous. Specifically, they maintain that, because “surrounding” has been
defined as “all around a place or thing” and “enclosing or encircling,” the BOC did not
need to use the term “all” in UDO § 3.7.5(B)(2) to express its intent that developers
provide connectivity to every residential area located around a proposed school.
Courts often rely on dictionary definitions when construing terms in statutes
or ordinances—we did so earlier in this very opinion—but this practice can do more
harm than good when courts apply the definitions to manufacture a false certainty.
Our dissenting colleagues ignore that modifiers such as “completely,” “entirely,” and
“all” are commonly attached to “surrounding,” “surrounded,” and similar words. We
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might say, for example, that a military unit is “completely surrounded” by hostile
forces. Likewise, one dictionary defines “encompass” to mean “to surround entirely.”
Encompass, Oxford Dictionary of English (3d ed. 2010) (emphasis added). Another
dictionary defines “surround” as “to enclose on all sides.” Surround, Merriam-
Webster’s Collegiate Dictionary (11th ed. 2007) (emphasis added). Thus, even
lexicographers sometimes add modifiers to words like “surround” to ensure clarity.
Because UDO § 3.7.5 is unclear, we 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.” Yancey v. Heafner, 268 N.C. 263, 266
(1966) (cleaned up); see also Westminster Homes, 354 N.C. at 308 (“[A]mbiguous
zoning statutes should be interpreted to permit the free use of land . . . .”).
This is no arbitrary canon of construction. It reflects our state’s longstanding
public policy favoring the “free and unrestricted use and enjoyment of land.” Kirby,
368 N.C. at 853 (quoting J.T. Hobby & Son, Inc. v. Fam. Homes of Wake Cnty., Inc.,
302 N.C. 64, 71 (1981)). That public policy recognizes and preserves the foundational
place of property rights in our constitutional order. See id. at 852–53 (“The
fundamental right to property is as old as our state.” (citing N.C. Const. of 1776,
Declaration of Rights § XII; Bayard, 1 N.C. (Mart.) at 9)). If local governments adopt
ordinances that interfere with property rights, they owe it to property owners to use
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plain language. See Arter v. Orange Cnty., 386 N.C. 352, 352 (2024) (“Local
governments have a responsibility to enact clear, unambiguous zoning rules.”).
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
UDO § 3.7.5 against the Town and in favor of the free use of property. Thus, we do
not interpret UDO § 3.7.5 to require pedestrian and bicycle connectivity to all
residential areas surrounding the campus lot. Petitioner satisfied its initial burden
by presenting competent, material, and substantial evidence that its proposed multi-
use path would provide pedestrian and bicycle access to the public park and 273-home
Because petitioner carried its initial burden of production and no one offered
any evidence in opposition to its applications, the BOC had no basis on which to
conclude that petitioner’s applications failed to satisfy Standards 1 and 2 of the UDO.
Consequently, the superior court erred by affirming the BOC’s orders denying the
applications, and the Court of Appeals erred in turn by affirming the superior court’s
order.
IV. Conclusion
For the reasons explained above, we reverse the decision of the Court of
Appeals and remand this case with instructions to the Town to approve petitioner’s
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site plan and subdivision plan applications. Inasmuch as our resolution of this case
makes it unnecessary to reach the additional issues raised in the parties’ petitions
for discretionary review, we further conclude that discretionary review was
improvidently allowed.
REVERSED AND REMANDED; DISCRETIONARY REVIEW
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Riggs, J., dissenting
Justice RIGGS dissenting.
In our system of law, we develop factual records for a reason. And we, as
appellate courts, understand that we should treat with deference the evidence
presented to and found by decision makers. Although a trite saying, the adage “a
picture is worth a thousand words” carries much significance in this matter.
The site plan map above answers so many questions about the matter at hand,
but rather than examine it and meaningfully engage with what it shows, the majority
ignores this evidence and renders a clear ordinance meaningless. How does it do this?
By invoking the “free use of land” canon of statutory construction. That canon,
though, is reserved only for ambiguous ordinances. And even when it is appropriate,
it merely calls for a strict interpretation of the ordinance; the canon does not permit
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a court to entirely disregard the ordinance’s language. Further, the canon cannot be
used to sidestep the ordinance’s purpose.
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. In doing so, the majority provides no clarity for what level of
connectivity is required under the Town’s ordinance. For these reasons, I respectfully
dissent.
I. The Free Use of Land Canon
Municipal corporations, upon creation, “take[ ] control of the territory and
affairs over which [they are] given authority.” Parsons v. Wright, 223 N.C. 520, 522
(1943). Indeed, the very “object of incorporating a town or city is to invest the
inhabitants of the municipality with the government of all matters that are of special
municipal concern.” Id. Zoning ordinances fall into this neat category, and the
General Assembly has “delegated [the original zoning power] to the legislative body
of municipal corporations.” Allred v. City of Raleigh, 277 N.C. 530, 540 (1971)
(cleaned up); see also N.C.G.S. § 160A-174(a) (2023) (“A city may by ordinance define,
prohibit, regulate, or abate acts, omissions, or conditions, detrimental to the health,
safety, or welfare of its citizens and the peace and dignity of the city . . . .”). Zoning
laws are, thus, products of our political processes just like any other type of
legislation. They “involve a reciprocity of benefit as well as of restraint” and
“balanc[e] public against private interests.” McKinney v. City of High Point, 237 N.C.
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66, 71 (1953) (quoting 8 McQuillin, The Law of Mun. Corps. § 25.25 (3d ed. 1949)).
Moreover, they are emblematic of legislation dedicated to the public welfare and serve
a “fundamental purpose[ ]” in “stabiliz[ing], conserv[ing], and protecting . . . uses and
values of land and buildings.” Id. (quoting The Law of Mun. Corps. § 25.25).
That is not to say that “[v]ast property rights are [not] affected by zoning
regulations.” Id. As far back as 1919, this Court took notice of the rule that “all
statutes in derogation of the common law are to be construed strictly” unless the
common law was “changed by express enactment.” Price v. Edwards, 178 N.C. 493,
500 (1919) (cleaned up). Among the examples noted by this Court were statutes
“impos[ing] restrictions upon the control, management, use, or alienation of private
property.” Id. (cleaned up). For that exact reason, our jurisdiction and others have
adopted the rule of construing ambiguous land ordinances “strictly in favor of the free
use of real property.” Morris Commc’ns Corp. v. City of Bessemer City Zoning Bd. of
Adjustment, 365 N.C. 152, 157 (2011).
For example, a little under sixty years ago, in Yancey v. Heafner, 268 N.C. 263
(1966), we allowed the construction of a high school athletic stadium despite zoning
restrictions. Id. at 263. Neighbors of the high school were upset about the potential
lighting and noise disturbances, so they filed suit challenging the validity of the
permit. Id. at 263, 265. When the case reached this Court, we concluded that the
applicable zoning ordinance was silent as to whether athletic facilities were
“forbidden in zones where schools are permitted.” Id. at 264. To this Court, that
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silence was dispositive; it signified that the city council did not contemplate
prohibiting athletic stadiums and, thus we leaned on the adage that “well-founded
doubts as to the meaning of obscure provisions of a [z]oning [o]rdinance should be
resolved in favor of the free use of property.” Id. at 266 (quoting 1 Yokley, Zoning
Law & Practice § 184 (2d ed. 1962)).
Notwithstanding this canon, this Court does not find default ambiguity in
order to minimize restrictions on the free use of land. See Westminster Homes, Inc.
v. Town of Cary Zoning Bd. of Adjustment, 354 N.C. 298, 308 (2001) (“While
ambiguous zoning statutes should be interpreted to permit the free use of land, . . .
no such ambiguity exists here.”); see also 1 Arthur H. Rathkopf & Daren A. Rathkopf,
Ruthkopf’s The Law of Zoning and Planning § 5:14 (Sara C. Bronin & Dwight H.
Merriam eds., 2024) (“The doctrine that zoning ordinances should be construed in
favor of the free use of land operates only where ambiguity exists.” (emphasis added));
id. (“[T]his rule of construction favoring the free use of land should not be applied
where common sense indicates the result would be contrived, unreasonable, or absurd
in view of the manifest object and purpose of the ordinance.”).
Indeed, in Westminster Homes, we abstained from invoking the free use of land
canon where a conditional use permit expressly allowed homeowners to install
“fences” but did not mention “gates.” 354 N.C. at 300–01. In doing so, we first
emphasized the importance of “ascertain[ing] and effectuat[ing] the intention of the
municipal legislative body.” Id. at 303–04 (emphasis added) (quoting George v. Town
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of Edenton, 294 N.C. 679, 684 (1978)); see also Long v. Branham, 271 N.C. 264, 268
(1967) (“[C]onstruction in favor of the . . . unrestricted use, however, must be
reasonable. The strict rule of construction as to restrictions should not be applied in
such a way as to defeat the plain and obvious purposes of a restriction.” (cleaned up)).
We then achieved that goal by simply looking to the ordinance’s plain language, which
conveyed “a clear desire for privacy through a wide, comprehensive buffer.”
Westminster Homes, 354 N.C. at 307. Because the ordinance’s text and intent were
clear, there was no need to resort to statutory construction and we concluded that the
permit did not allow residents to install gates. Id. at 308.
Here, the majority’s conclusion contravenes the plain language of Section
3.7.5(B)(2). Under Section 3.7.5(B)(2), the applicant is “required” to provide
“vehicular and pedestrian” “[c]onnectivity . . . to surrounding residential areas.” UDO
§ 3.7.5(B)(2) (2013). In the event that “full vehicular connection is impractical,” the
ordinance indicates that “a multi-use trail connection” is an adequate replacement.
The majority takes issue with this provision because “it does not state that
connectivity to all surrounding residential areas is necessary.” But that is, in fact,
what this provision does.
The plain language of Section 3.7.5(B)(2) requires an applicant to connect to
each residential area surrounding it. As explained earlier, the basic rule of ordinance
interpretation “is to ascertain and effectuate the intention of the municipal legislative
body.” Westminster Homes, 354 N.C. at 303–04 (cleaned up). This intent is
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determined “by examining [the] (i) language, (ii) spirit, and (iii) goal of the ordinance.”
Capricorn Equity Corp. v. Town of Chapel Hill Bd. of Adjustment, 334 N.C. 132, 138
(1993). “When interpreting a municipal ordinance, we apply the same principles of
construction used to interpret statutes.” Morris Commc’ns Corp., 365 N.C. at 157
(citing Westminster Homes, 354 N.C. at 303). “Undefined and ambiguous terms in an
ordinance are given their ordinary meaning and significance.” Id. (citing Perkins v.
Ark. Trucking Servs., Inc., 351 N.C. 634, 638 (2000)); see also The Law of Zoning and
Planning § 5:11 (“Where a word or term is not defined for the purposes of the
ordinance, it will usually be given its plain, ordinary, and usually understood
meaning.”). Thus, it is well accepted that “courts may appropriately consult
dictionaries” to “ascertain the ordinary meaning of undefined and ambiguous terms.”
Morris Commc’ns. Corp., 365 N.C. at 158 (citing Perkins, 351 N.C. at 638).
According to several dictionaries, “surrounding” means “all around a
particular place or thing,” New Oxford American Dictionary 1751 (3d ed. 2010)
(emphasis added), or “enclosing or encircling,” The Random House Dictionary of the
English Language 1916 (2d ed. 1987). Thus, the ordinary meaning of Section
3.7.5(B)(2) requires some type of effort to provide vehicular or bicycle connectivity to
all residential areas encircling it. And this makes sense considering the plural tense
of “residential areas”—the ordinance clearly requires applicants to connect the
planned site with adjacent neighborhoods through streets and walkable pathways.
But rather than conduct a simple dictionary check, the majority reads in an
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ambiguity.1 The city ordinance writers did not include the word “all” in Section
3.7.5(B)(2) because “all” is necessarily implied by the word “surrounding.”
Lastly, this reading of the ordinance comports with one of the listed purposes
in the Town’s Unified Development Ordinance. Section 1.4, entitled “Purpose and
Intent,” indicates that Section 3.7.5 was adopted to “[f]acilitate walking and biking
in the community by providing a well-integrated network of streets, sidewalks,
bikeways, walking trails, and greenway trails,” among other purposes. UDO § 1.4
(2013). By requiring some sort of connectivity to each neighboring residential area,
an applicant may satisfy this prerequisite. And this is no minor consideration—the
level of connectivity in a neighborhood plays several roles in our everyday life, such
as vehicular traffic, obesity, and happiness. See Kevin M. Leyden et al., Walkable
Neighborhoods: Linkages Between Place, Health, and Happiness in Younger and
Older Adults, 90 J. of Am. Planning Ass’n 101, 101 (2024) (“We found that the way
neighborhoods are planned and maintained matter[ ] for happiness, health, and
trust.”); Milan Zlatkovic, et al., Assessment of Effects of Street Connectivity on Traffic
Performance and Sustainability Within Communities and Neighborhoods Through
1 The majority offers a dictionary definition for Section 3.7.5(B)(2). But rather than define “surrounding” (the adjective in the ordinance’s text), the majority defines “surround”— a verb. The difference is significant here. Using the actual word in the text, it remains the case that there is no need to state “all surrounding residential areas” because “surrounding residential areas” necessarily implies that the ordinance requires connectivity to residential areas “all around [the subdivision].” The majority’s reading neither relies on the plain language nor the ordinance’s purpose. See Lanvale Properties, LLC, 366 N.C. 142, 155–56 (2012) (rejecting the proposition that “an [alleged] lack of specificity” is fatal in light of the legislation’s “clear guidance”).
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Traffic Simulation, 46 Sustainable Cities & Soc’y 1, 1 (2019) (“People need to be able
to travel within the community in a safe and efficient manner.”); Arlie Adkins, et al.,
Contextualizing Walkability: Do Relationships Between Built Environments and
Walking Vary by Socioeconomic Context?, 83 J. of Am. Planning Ass’n 296, 296 (2017)
(“Supportive built environments for walking, bicycling, and transit use are predictive
of a larger share of trips made by active travel modes and higher rates of walking or
physical activity.”). By reading in an ambiguity and invoking the free use of land
canon, the majority disregards this plain reading of the UDO.
The majority also ignores the plain language of Section 3.7.5(A). Section
3.7.5(A) requires the applicant to “demonstrate how [walking and bicycle]
accessibility can be achieved,” given the residential district’s “low density nature.”
UDO § 3.7.5(A) (2013). The ordinance further provides examples of how this
accessibility may be accomplished: “Accommodations may include the construction of
additional off-premise sidewalks, multi-use trails/paths or greenways to connect to
existing networks.” Id. Like with Section 3.7.5(B)(2), the majority also concluded
this section was ambiguous because “it does not expressly declare that the applicant’s
plans must provide connectivity to all surrounding residential areas.” But the
majority misses the point: the plain language of Section 3.7.5(A) requires a
demonstration of how the applicant plans to achieve accessibility for schoolchildren.
It does not require the same proof that Section 3.7.5(B)(2) does. Because this
ordinance is not ambiguous, the majority again wrongly invoked the free use of land
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canon.
II. Schooldev Failed to Meet Its Prima Facie Burden
In one sentence, the majority addresses Schooldev’s prima facie burden. Such
brevity illuminates how thin Schooldev’s argument is. Schooldev presented no
affirmative evidence to meet its burden under Sections 3.7.5(A) and 3.7.5(B)(2), and
thus, the Court of Appeals’ judgment should have been affirmed.
When determining whether to grant or deny a land use permit, the trial court
first places a burden on the applicant to establish a prima facie case of entitlement to
a conditional use permit. PHG Asheville, LLC v. City of Asheville, 374 N.C. 133, 149
(2020) (citing Humble Oil & Refin. Co. v. Bd. of Alderman, 284 N.C. 458, 468 (1974)).
At this point, the applicant must produce “competent, material, and substantial
evidence tending to establish the existence of the facts and conditions which the
ordinance requires for the issuance of a [conditional] use permit.” Id. (emphasis in
original) (alteration in original) (quoting Humble Oil, 284 N.C. at 468). If this prima
facie case is established, the agency may only deny the application “based upon
findings contra which are supported by competent, material, and substantial
evidence appearing in the record.” Id. (quoting Humble Oil, 284 N.C. at 468). Those
findings must contradict “grounds [ ] expressly stated in the ordinance.” Id. (quoting
Woodhouse v. Bd. of Comm’rs, 299 N.C. 211, 218 (1980)). Relevant here, the Town
denied Schooldev’s permit application because it failed to establish compliance with
Sections 3.7.5(A) and 3.7.5(B)(2). Thus, on appeal, the question is whether Schooldev
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satisfied its prima facie burden to proffer evidence tending to prove compliance with
these ordinances.
Schooldev argues that it met its prima facie burden by “presenting evidence
that the campus would have a 10-foot-wide multi-use path that connects to a nearby
residential neighborhood and an adjoining town park with a network [of] pedestrian
paths.” But Schooldev’s site plan map tells a different story. To the east and west of
the planned site lay undeveloped tracts of land. Residential homes along Walridge
Road sit north of the school. Across Harris Road from the planned site is a 117-acre
park. As the Town points out, the only accessibility or connectivity accommodation
provided by Schooldev is a sidewalk that “connect[s] two of the school’s driveways at
the front of the school on Harris Road.” Schooldev’s claim that it provides connectivity
is misleading, as the site plan does not include any connection to the homes to the
north on Walridge Road. Schooldev incorporated no plans to connect those homes,
and nothing prevented Schooldev from providing paths within its own property—the
pathways did not need to be off-premises.
Statements made during the Town’s planning board meeting further supports
the conclusion that Schooldev did not meet its prima facie burden. During that
meeting, Schooldev’s counsel testified about possible conflicts with the ordinance.
Everything its counsel addressed concerned the single ten-foot-wide sidewalk at the
property’s frontage. For biking, Schooldev’s counsel asserted that the development
plan was “consistent with the policy for bike ways” because it provides a multi-use
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path for a community currently lacking “any pedestrian or bike way facilities.” That
“multi-use path” is the one sidewalk to Harris Road and the only connectivity on any
of the four sides of the school. Aside from that sidewalk, Schooldev’s counsel argued
vaguely that “[s]tem streets . . . offer some connectivity to the adjacent undeveloped
parcels if there is future development and the connectivity is possible.” To
Schooldev’s counsel, “[t]he project seeds Harris Road with the multi-use pathway . . .
for a walkable and bikeable community.” (Emphasis added.) Because no sidewalk
currently exists from the property to Harris Road, Schooldev’s counsel essentially
argued its plan was better than nothing and that it “begins the connection.” But that
is not what the ordinance plainly requires.
It is worth reiterating that ordinances are products of our political processes.
Like any other legislation, a zoning ordinance “may be repealed in its entirety, or
amended as the city’s legislative body determines from time to time to be in the best
interests of the public.” Zopfi v. City of Wilmington, 273 N.C. 430, 434 (1968) (citing
In re Markham, 259 N.C. 566 (1963)). It “is not a contract with the property owners
of the city and confers upon them no vested right . . . to demand that the boundaries
of each zone or the uses to be made of property in each zone remain as declared in the
original ordinance.” Id. at 434 (citing McKinney v. City of High Point, 239 N.C. 232
(1954)). In other words, if a property owner is upset with an existing ordinance, they
may engage with their local legislative body. Like with many laws, any necessary fix
should be primarily legislative, not judicial.
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III. Conclusion
It is worth reiterating that ordinances are products of our political processes.
Like any other legislation, a zoning ordinance “may be repealed in its entirety, or
amended as the city’s legislative body determines from time to time to be in the best
interests of the public.” Zopfi v. City of Wilmington, 273 N.C. 430, 434 (1968) (citing
In re Markham, 259 N.C. 566 (1963)). It “is not a contract with the property owners
of the city and confers upon them no vested right . . . to demand that the boundaries
of each zone or the uses to be made of property in each zone remain as declared in the
original ordinance.” Id. at 434 (citing McKinney v. City of High Point, 239 N.C. 232
(1954)). In other words, if a property owner is upset with an existing ordinance, they
may engage with their local legislative body. Like with many laws, any necessary fix
In sum, because the ordinance is not ambiguous and because Schooldev failed
to meet its burden of production, I respectfully dissent from majority’s decision to
reverse the judgment of the Court of Appeals.
Justice EARLS joins in this dissenting opinion.
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