Cary wins first round of school fee suit

akenney@newsobserver.comMay 28, 2013 

— The town has won the first round of its contentious legal battle with a group of developers and builders.

Panther Creek-Raleigh and Cary Park Associates, developers of the Cary Park area, contend the town of Cary unlawfully required the company to pay millions of dollars to fund construction of Mills Park Elementary School. The plaintiffs sought a $6 million refund of fees from the Wake County Public School System and the town.

But Judge Paul Ridgeway sided with the town in Wake County Superior Court, effectively dismissing the claims against Cary.

At the center of the legal dispute is a now-repealed set of Cary rules that asked developers to fund new seats for students to make up for their projects’ impacts on local schools.

The company and its co-plaintiff, Cary Park Associates, argued that the town was not authorized by state law to manage the funding and construction of schools, and they say that the Wake County school board also was wrong to take the money.

Cary’s lawyers sought dismissal on several fronts. In legal filings, the town argued that the developers made and benefited from a contract with the town, agreeing to fund the school, and then wanted to break the agreement. The developers’ attempt to exit an agreement is part of a “covert scheme to deceive and defraud the Town and its citizens,” a legal filing by the town claimed.

Among other findings, Ridgeway granted judgment late last month based on the town’s claims regarding the statute of limitations; the statute of frauds and non-divisible contracts; the acceptance of benefits; and affirmation and ratification.

Ridgeway hasn’t yet detailed his legal conclusions, and an official order was pending as of May 22. The plaintiffs may appeal. Their attorneys declined to comment in detail on the case, as the judge’s full order hadn’t been released.

Kenney: 919-460-2608 or twitter.com/KenneyOnCary

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