An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

                                  &nb sp;         
NO. COA04-954


Filed: 19 April 2005


v .                         Dare County
                            No. 03 CVS 495

    Appeal by plaintiff from order filed 26 April 2004 by Judge William C. Griffin, Jr., in Dare County Superior Court. Heard in the Court of Appeals 9 March 2005.

    Holt York McDarris & High, LLP, by W. Hackney High, Jr., for plaintiff.

    Hornthal, Riley, Ellis & Maland, L.L.P., by Donald I. McRee, Jr., for defendant.

    BRYANT, Judge.

    Nags Head Construction and Development, Inc. (plaintiff), appeals an order filed 26 April 2004, dismissing the complaint for declaratory judgment due to lack of standing, personal jurisdiction, or subject matter jurisdiction; failure to state a claim upon which relief may be granted; insufficient service of process; and failure to exhaust applicable administrative remedies.
    On 6 August 2003, the Town of Nags Head's (Town's) (defendant's) Board of Commissioners conducted a public hearing to receive comments on two alternatives for proposed zoning related amendments to the Town's Code of Ordinances. The proposedamendments regulated development, density and occupancy of residential dwellings within the Town by limiting the number of bedrooms, wastewater treatment capacity, height, maximum square footage and aesthetic qualities. Following the receipt of public comments, the Board of Commissioners voted to adopt one of the two proposed zoning amendment alternatives which limited residential dwellings to a maximum of eight bedrooms; maximum square footage of 5,000 square feet; maximum wastewater capacity of 1,080 gallons per day; the requirement of certain architectural design standards for dwellings exceeding four bedrooms and 3,500 square feet; minimum lot size requirement depending upon the size of residential structures; increased height allowance; open space preservation and landscaping requirements and special nonconformity criteria. Because the adoption of an ordinance on its first reading requires a two-thirds affirmative vote, a second reading of the zoning related amendments was set for 20 August 2003.
    On 20 August 2003, the Board of Commissioners received additional public comments on the zoning related amendments to the Code of Ordinances. Following public comments, the Board of Commissioners again considered the ordinance amendments adopted on 6 August 2003. The ordinance was adopted on 20 August 2003, but with less stringent requirements for the construction of residential dwellings.
    On 20 October 2003, plaintiff filed its unverified complaint for declaratory judgment to challenge an ordinance that would amend sections of the Code of Ordinances related to zoning. In thecomplaint, plaintiff did not allege that the Town sought to apply the ordinance amendments to plaintiff, or that plaintiff had applied for or been denied anything related to use of its property.
    On 18 November 2003, the Town filed its motion to dismiss on 18 November 2003, pursuant to Rule 12(b)(1); 12(b)(2); 12(b)(4); 12(b)(5); and 12(b)(6) of the North Carolina Rules of Civil Procedure. This matter came for hearing at the 22 March 2004 civil session of Dare County Superior Court with the Honorable William C. Griffin, Jr., presiding. By order filed 26 April 2004, the trial court granted the motion to dismiss based on the following grounds:
    1. The Court lacks jurisdiction of the subject-matter presented by the Complaint in that the Plaintiff lacks standing to commence this action for declaratory relief and Plaintiff has failed to exhaust applicable administrative remedies.

    2. The Court lacks jurisdiction over the person of Robert W. Muller, George Farah, III, Doug Remaley, Brant Murray, Anna Sadler, J. Webb Fuller and Carolyn Morris and process served upon each of them is insufficient in that they are not set forth in the caption of the summons and complaint as defendants.

    3. Plaintiff's complaint fails to state a claim upon which relief may be granted in that Plaintiff lacks standing to commence this action for declaratory relief and Plaintiff has failed to exhaust applicable administrative remedies.

    It appears to the Court that the motion should be allowed.

    IT IS THEREFORE ORDERED that the Defendant's Motion to Dismiss is allowed and Plaintiff's complaint is hereby DISMISSED.

    Plaintiff gave timely notice of appeal.

    The dispositive issue on appeal is whether the trial court properly dismissed plaintiff's claim due to lack of standing.
    To sustain a declaratory judgment action, the trial court must find that “an actual controversy exists both at the time of the filing of the pleading and at the time of hearing.” Sharpe v. Park Newspapers of Lumberton, Inc., 317 N.C. 579, 585, 347 S.E.2d 25, 30 (1986). This jurisdictional prerequisite ensures that the trial court will not adjudicate a mere difference in the parties' opinions or issue “a purely advisory opinion which the parties might, so to speak, put on ice to be used if and when the occasion might arise.” Tryon v. Duke Power Co., 222 N.C. 200, 204, 22 S.E.2d 450, 453 (1942). To challenge the constitutionality of an ordinance under the Declaratory Judgment Act, plaintiff must produce evidence that it has sustained an injury or is in immediate danger of sustaining an injury as a result of enforcement of the challenged ordinance. Grace Baptist Church of Oxford v. City of Oxford, 320 N.C. 439, 444, 358 S.E.2d 372, 375 (1987); Wilkes v. North Carolina State Board of Alcoholic Control, 44 N.C. App. 495, 496, 261 S.E.2d 205, 206 (1980). Without injury, plaintiff does not have standing to challenge the constitutionality of an ordinance. See, e.g., Grace Baptist Church of Oxford, 320 N.C. at 444, 358 S.E.2d at 375; Wilkes, 44 N.C. App. at 496, 261 S.E.2d at 206. A general interest common to all members of the public is not sufficient to establish standing. Wilkes, 44 N.C. App. at 496-497, 261 S.E.2d at 206-207.
    In its complaint, plaintiff does not claim or allege that itwould be subject to the challenged ordinance or is about to suffer any direct injury. Rather, plaintiff merely alleges that it has a legal interest in certain parcels of property located within the Town's jurisdiction. This general interest, common to all members of the public, is insufficient to establish standing. Id. Furthermore, plaintiff does not claim or allege that it sought or was denied a permit or variance under the challenged ordinance.
    In Andrews v. Alamance County, 132 N.C. App. 811, 513 S.E.2d 349 (1999), this Court held that the plaintiff lacked standing to challenge a county ordinance requiring minimum lot sizes. The complaint only alleged that as a property owner in the county the plaintiff would be subject to the ordinance and that the plaintiff planned to develop her property. Andrews, 132 N.C. App. at 815, 513 S.E.2d at 351. The plaintiff did not allege that she had developed a site plan or attempted to file a plat with the county, had taken any steps to begin development of her property or applied for or been denied a permit. Id. Concluding that there was no genuine controversy and the plaintiff lacked standing, this Court
held, “any challenges relating to land use are not ripe until there has been a final determination about what uses of the land will be permitted.” Id.
    Here, the trial court properly dismissed the complaint as plaintiff failed to allege or show that an existing controversy existed with the Town, that plaintiff was to suffer direct injury, or that plaintiff sought and was denied a permit.
    Judges STEELMAN and GEER concur.
    Report per Rule 30(e).

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