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1. Zoning--conditional use permit--standing--special damages required
The trial court correctly concluded that petitioners lacked standing to challenge a conditional use permit where they did not allege special damages distinct from the rest of the community. They alleged only that they own property abutting or near the property which is ths the subject matter of the permit.
2. Zoning--conditional use permit--standing
The question of whether the issuance of a conditional use permit was supported by the evidence was not considered where the plaintiffs lacked standing.
Northen Blue, LLP, by David M. Rooks, III, for plaintiffs-
Bradshaw & Robinson, LLP, by Nicolas P. Robinson, for intervenor-respondents.
To appeal the grant of a conditional use permit, a party must allege in his petition how the value or enjoyment of his land has been or will be adversely affected and prove that he will sustaina pecuniary loss. (See footnote 1) Here, because Petitioners failed to allege special damages in their petition, we affirm.
Respondents Jesse Fearrington and Earl Thomas seek to develop property in Chatham County that they own or have contracted to buy from Respondents Leslie Yow and the Mount Pleasant United Methodist Church. On 17 April 2006, Fearrington filed an application for a conditional use district and a conditional use permit for a 29.6 acre specialty retail site known as Fearrington Place, to be developed on U.S. 15-501 and Morris Road in Chatham County.
On 15 May 2006, the Chatham County Board of Commissioners held separate public hearings for the requested conditional use district and conditional use permit. Petitioners, neighboring property owners to the proposed development, appeared at the hearing and argued against the issuance of the conditional use permit. On 11 July 2007, the Chatham County Planning Board recommended approval of the proposed conditional use district and the conditional use permit.
On 17 July 2006, the Board of Commissioners agreed with the advisory Planning Board that the proposed conditional use district and conditional use permit were in conformity with the Land Use Plan and met the five required findings under the Chatham County Zoning Ordinance. Accordingly, the Board of Commissioners adopted an Ordinance Amending the Zoning Ordinance of Chatham County and approved Fearrington's requested conditional use permit. Pursuant to N.C. Gen. Stat. § 153A-345(e)(2005), Petitioners filed a Petition for Writ of Certiorari on 25 July 2006, seeking review of the Board of Commissioner's decision to grant the conditional use permit. On 14 November 2006, the trial court dismissed the petition on the basis that Petitioners lacked standing and affirmed the decision of the Board of Commissioners. Petitioners appeal to this Court contending that the trial court erred by: (I) dismissing the petition for writ of certiorari and (II) concluding that the Board of Commissioners grant of the conditional use permit was supported by substantial, material, and competent evidence in the record. (See footnote 2)
Kentallen, Inc. v. Hillsborough, 110 N.C. App. 767, 769, 431 S.E.2d
231, 232 (1993) (internal citations and quotations omitted).
To have standing to seek review of the granting of a conditional use permit, a petitioner must first allege the manner in which the value or enjoyment of [petitioner's] land has been or will be adversely affected. Id. (citation omitted). We have held that [e]xamples of adequate pleadings include allegations that the rezoning would cut off the light and air to the petitioner's property, increase the danger of fire, increase the trafficcongestion and increase the noise level. Id. at 769-70, 431 S.E.2d at 232. However, the mere averment that [petitioners] own land in the immediate vicinity of the property for which the special use permit is sought, absent any allegation of special damages . . . in their Petition, is insufficient to confer standing upon them. Sarda, 156 N.C. App. at 215, 575 S.E.2d at 831 (quotation omitted) (citing Lloyd v. Town of Chapel Hill, 127 N.C. App. 347, 351, 489 S.E.2d 898, 900 (1997)); Kentallen, 110 N.C. App. at 770, 431 S.E.2d at 233 (holding that petitioner's allegation that it is the owner of adjoining property does not satisfy the pleading requirement).
In this case, Petitioners alleged in their petition only that they own property either abutting or near the property which is the subject matter of the re-zoning and conditional use permit. Because Petitioners failed to allege any damages whatsoever, much less any special damages, the trial court correctly concluded that Petitioners lacked standing. Accordingly, we affirm.
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