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IN THE SUPREME COURT OF NORTH CAROLINA
FILED: 12 DECEMBER 2008
BARBARA GLOVER MANGUM, TERRY OVERTON, DEBORAH OVERTON, and VAN
RALEIGH BOARD OF ADJUSTMENT, PRS PARTNERS, LLC, and RPS HOLDINGS,
On discretionary review pursuant to N.C.G.S. § 7A-31 of
a unanimous decision of the Court of Appeals, 187 N.C. App. 253,
652 S.E.2d 731 (2007), vacating and remanding an order entered on
12 September 2006 by Judge Narley L. Cashwell in Superior Court,
Wake County. Heard in the Supreme Court 14 October 2008.
Smith Moore LLP, by James L. Gale, David L. York, and
Elizabeth Brooks Scherer, for petitioner-appellants.
Poyner & Spruill LLP, by Robin Tatum Currin, for
respondent-appellee RPS Holdings, LLC.
In this case we determine the circumstances under which
an adjacent property owner or property owner in close proximity
has standing to challenge a Board of Adjustment's grant of a
Special Use Permit. We hold that petitioners have standing to
challenge the Raleigh Board of Adjustment's issuance of a Special
Use Permit to PRS Partners, LLC and RPS Holdings, LLC. Thus, we
reverse the decision of the Court of Appeals holding otherwise
and remand this case to that court for determination of issues
not reached by that court.
FACTUAL AND PROCEDURAL BACKGROUND
On 15 November 2005, PRS Partners, LLC and RPS
Holdings, LLC (respondents) filed an application for a Special
Use Permit for an adult establishment with the Raleigh Board of
Adjustment (the Board). Respondents sought the Special Use
Permit in order to operate a proposed business at 6713 Mt. Herman
Road, Raleigh (the subject property). Petitioner Barbara Glover
Mangum is the owner of a parcel of land directly adjacent to the
subject property, and at this location she operates Triangle
Equipment Company, Inc., a retail business selling compact
construction, yard, and garden equipment. Petitioners Terry and
Deborah Overton own three properties directly adjacent to the
subject property, upon which they operate Triangle Coatings, Inc.
Petitioner Ms. Van Eure is the owner of the Angus Barn, a
prominent Raleigh restaurant, which is not located immediately
adjacent to the subject property, but access to the subject
property is along a narrow roadway that passes by the restaurant.
A hearing was held by the Board on 9 January 2006, during which
petitioners presented evidence concerning the probability of
increased traffic, increased water runoff, parking and safety
concerns, and adverse secondary effects on their businesses if
the Board granted the Special Use Permit.
On 24 February 2006, the Board served notice of its
approval of the Special Use Permit application, and petitioners
appealed the Board's decision to Superior Court, Wake County, by
Petition for Writ of Certiorari on 24 March 2006. On 13 April
2006, respondents filed a motion to dismiss the petition,
asserting that petitioners lacked standing to challenge the
Board's decision pursuant to N.C.G.S. § 160A-388(e2). On 12September 2006, the trial court denied respondents' motion to
dismiss and reversed the Board's decision approving the Special
Use Permit. Respondents appealed to the Court of Appeals, which,
on 20 November 2007, held that petitioners lacked standing to
challenge the Board's decision and vacated and remanded the
decision of the trial court. Petitioners timely petitioned for
discretionary review by this Court, and we allowed the petition
on 11 June 2008. We now reverse the decision of the Court of
The sole issue before us is whether petitioners have
standing to challenge the issuance of the Special Use Permit. As
a general matter, the North Carolina Constitution confers
standing on those who suffer harm: All courts shall be open;
[and] every person for an injury done him in his lands, goods,
person, or reputation shall have remedy by due course of law . .
. . N.C. Const. art. I, § 18.
The rationale of [the standing rule] is that
only one with a genuine grievance, one
personally injured by a statute, can be
trusted to battle the issue. The 'gist of
the question of standing' is whether the
party seeking relief has 'alleged such a
personal stake in the outcome of the
controversy as to assure that concrete
adverseness which sharpens the
presentation[s] of issues upon which the
court so largely depends for illumination of
difficult constitutional questions.'
Stanley v. Dep't of Conservation & Dev.
, 284 N.C. 15, 28, 199
S.E.2d 641, 650 (1973) (quoting Flast v. Cohen
, 392 U.S. 83, 99
(1968) (alteration in original) (quoting Baker v. Carr
, 369 U.S.
186, 204 (1962)). It is not necessary that a party demonstrate
that injury has already occurred, but a showing of immediate orthreatened injury will suffice for purposes of standing. River
Birch Assocs. v. City of Raleigh
, 326 N.C. 100, 129, 388 S.E.2d
538, 555 (1990) (citing Hunt v. Wash. State Apple Adver. Comm'n
432 U.S. 333, 342 (1977)); see also Valley Forge Christian Coll.
v. Ams. United for Separation of Church & State
, 454 U.S. 464,
Specifically, in contests concerning zoning decisions,
this Court has stated:
The mere fact that one's proposed lawful
use of his own land will diminish the value
of adjoining or nearby lands of another does
not give to such other person a standing to
maintain an action, or other legal
proceeding, to prevent such use. If,
however, the proposed use is unlawful, as
where it is prohibited by a valid zoning
ordinance, the owner of adjoining or nearby
lands, who will sustain special damage from
the proposed use through a reduction in the
value of his own property, does have a
standing to maintain such proceeding.
Jackson v. Guilford Cty. Bd. of Adjust.
, 275 N.C. 155, 161, 166
S.E.2d 78, 82 (1969) (citations omitted). Additionally,
[i]f . . . that which purports to be an
amendment permitting a use of property
forbidden by the original ordinance is,
itself, invalid, the prohibition upon the use
remains in effect. In that event, the owner
of other land, who will be specially damaged
by such proposed use, has standing to
maintain a proceeding in the courts to
at 161, 166 S.E.2d at 83 (citations omitted).
(See footnote 1)
undisputed that defendants' proposed use of the land is unlawful
unless they are issued a Special Use Permit. Moreover, the
General Assembly has provided that [e]very
decision of the board
[of adjustment] shall be subject to review by the superior courtby proceedings in the nature of certiorari. N.C.G.S. § 160A-
388(e2) (2007) (emphasis added).
In the instant case, the trial court found petitioners
had standing based upon the terms of the Raleigh City Code
(See footnote 2)
alternatively that petitioners had made sufficient allegations to
establish special damages for purposes of standing through
their testimony regarding increased traffic, increased water
runoff, parking, and safety concerns. The Court of Appeals
reversed the trial court, finding the allegations and evidence
presented inadequate to show the special damages required to
challenge the issuance of the permit. Mangum v. Raleigh Bd. of
, 187 N.C. App. 253, __, 652 S.E.2d 731, 736 (2007). We
disagree with the conclusion of the Court of Appeals and hold
that the allegations and evidence presented by petitioners in
regards to the increased traffic, increased water runoff,
parking, and safety concerns, as well as the secondary adverse
effects on petitioners' businesses, were sufficient special
damages to give standing to petitioners to challenge the issuance
of the permit.
In our de novo review of a motion to dismiss for lack
of standing, we view the allegations as true and the supporting
record in the light most favorable to the non-moving party. SeeStone v. N.C. Dep't of Labor
, 347 N.C. 473, 477, 495 S.E.2d 711,
713, cert denied
, 525 U.S. 1016 (1998). We also note that North
Carolina is a notice pleading jurisdiction, and as a general
rule, there is no particular formulation that must be included in
a complaint or filing in order to invoke jurisdiction or provide
notice of the subject of the suit to the opposing party. See
Mangum v. Surles
, 281 N.C. 91, 99, 187 S.E.2d 697, 702 (1972)
([I]t is the essence of the Rules of Civil Procedure that
decisions be had on the merits and not avoided on the basis of
mere technicalities. (citation omitted)). To deny a party his
day in court because of his imprecision with the pen would
elevate form over substance and run contrary to notions of
fundamental fairness. See Pyco Supply Co., Inc. v. Am.
Centennial Ins. Co.
, 321 N.C. 435, 443, 364 S.E.2d 380, 385
In their petition for writ of certiorari filed in the
superior court, petitioners alleged that they either owned
property immediately adjacent to or in close proximity to the
subject property. While this assertion, in and of itself, is
insufficient to grant standing, it does bear some weight on the
issue of whether the complaining party has suffered or will
suffer special damages distinct from those damages to the public
at large. Moreover, petitioners testified during the Board
hearing that granting the Special Use Permit would have adverse
effects on their property, including problems related to parking,
safety, security, stormwater runoff, littering, and noise.
For instance, LaMarr Bunn, a licensed landscape
architect and licensed real estate broker, testified at the Board
hearing on behalf of petitioners in opposition to the permit. Hetestified about the value of surrounding properties, the large
number of 911 calls made concerning similar businesses in
Raleigh, his concerns about a proposed sign for the business, and
the lack of stormwater retention areas. Petitioner Mangum
testified at the Board hearing concerning parking at the subject
property. According to her calculations, if the proposed
business had full occupancy, each vehicle in the parking lot
would need to have transported at least four persons on average.
(See footnote 3)
She testified that this lack of adequate parking at respondents'
property could result in patrons of the proposed business parking
their vehicles at her adjacent site. Moreover, Mangum testified
that if even one vehicle parked on Mt. Herman Road, tractor
trailers would be unable to bring equipment to her business at
night. Mangum expressed concerns over stormwater runoff, as her
property was sitting much lower than the property in question.
She further testified regarding her concerns about safety,
litter, vandalism, and other damage to her property. These
concerns were based in part on problems Mangum had at a property
in South Carolina that is immediately adjacent to an adult
Petitioner Terry Overton expressed his concerns about
security on his adjacent property, stormwater runoff onto his
lower-situated property, garbage, and parking overflow.
Petitioner Eure testified regarding her safety concerns for hercustomers and employees stemming from traffic and regarding
anticipated secondary adverse effects upon her business.
Petitioners' allegations were reiterated in the petition filed in
the superior court.
These allegations and testimony were sufficient to
demonstrate special damages to these property owners separate and
apart from the damage the community as a whole might suffer. We
cannot agree with respondent's arguments and the dissent's
contention that allegations of vandalism, safety concerns,
littering, trespass, and parking overflow from the proposed
business to adjacent or nearby lots fail to establish that the
value of petitioners' properties would be adversely affected or
that petitioners would be unable to enjoy the use of their
properties. Accordingly, the decision of the Court of Appeals
that petitioners lack standing must be reversed.
Because petitioners' allegations and testimony
demonstrated the existence of special damages if the Special Use
Permit were granted, petitioners have standing to challenge the
issuance of the permit, and the Court of Appeals erred in holding
otherwise. Accordingly, the decision of the Court of Appeals is
reversed, and the case is remanded to that court for
determination of the remaining issues raised by respondents but
not addressed by the Court of Appeals.
REVERSED AND REMANDED.
Justice TIMMONS-GOODSON dissenting.
Because the majority misapplies the longstanding
precedent of this Court and unnecessarily relaxes the
requirements for standing, I respectfully dissent.
After correctly quoting the rule on standing announced
by this Court in Jackson v. Guilford County Board of Adjustment
he majority then
disregards North Carolina's stringent
requirements for standing in favor of the less consistent rule of
some other jurisdictions. In North Carolina, adjacent and nearby
property owners have standing to appeal from quasi-judicial
zoning decisions if the owners will sustain special damages,
distinct from the rest of the community, amounting to a reduction
in property values. Jackson
, 275 N.C. 155, 161, 166 S.E.2d 78,
82 (1969) (citations omitted). While some states have held that
evidence of increases in traffic, population, and noise may alone
suffice to show special damages and grant standing, see, e.g.
Lynch v. Gates
, 433 Pa. 531, 534-35, 252 A.2d 633, 634-35 (1969)
(increases in noise, population density, traffic, and loss of
light and air), in North Carolina,
a reduction in property value
has been an essential element of standing for nearly forty years,
, Cty. of Lancaster v. Mecklenburg Cty.
, 334 N.C. 496,
503 n.4, 434 S.E.2d 604, 610 n.4 (1993) (citing Court of Appeals
decisions which rely on Jackson
for the rule that adjoining
property owners must present evidence of a reduction in property
Under the well-established rule of Jackson
petitioner must allege, and the trial court must find, that the
adjacent or nearby property owner will suffer special damages
amounting to a reduction in property value. See, e.g.
, Smith v.Forsyth Cty. Bd. of Adjust.
, 186 N.C. App. 651, 654, 652 S.E.2d
355, 358 (2007) (holding that petitioner lacked standing when she
failed to allege that the zoning decisions at issue had decreased
the value of her property or would do so in the future).
Additionally, the record must contain evidence sufficient
sustain a finding that the petitioner will in fact suffer a
diminution in property value. See, e.g.
, Lloyd v. Town of Chapel
, 127 N.C. App. 347, 351, 489 S.E.2d 898, 901 (1997) (no
standing when the record did not contain sufficient evidence to
sustain a finding that the petitioner would suffer a diminution
in property value); Heery v. Town of Highlands Zoning Bd. of
, 61 N.C. App. 612, 614, 300 S.E.2d 869, 870 (1983)
North Carolina's more stringent rule on standing
appropriate in light of the fundamental right of an owner to
lawfully use and enjoy his property without undue restrictions.
See Wise v. Harrington Grove Cmty. Ass'n
, 357 N.C. 396, 401, 584
S.E.2d 731, 736 (2003) ('Every person owning property has the
right to make any lawful use of it he sees fit, and restrictions
sought to be imposed on that right must be carefully examined . .
. .' (quoting Vance S. Harrington & Co. v. Renner
, 236 N.C. 321,
324, 72 S.E.2d 838, 840 (1952) (alteration in original)));
Carolina Beach Fishing Pier, Inc. v. Town of Carolina Beach
N.C. 362, 372, 163 S.E.2d 363, 370 (1968) (stating in an action
for damages for the taking of private property for public use
without paying just compensation that the right of private
property is a fundamental, material, inherent and inalienable
The rule is also consistent with N.C.G.S. § 160A-
388(e2), which restricts standing in appeals from quasi-judicial
decisions in zoning cases to aggrieved part[ies]. N.C.G.S. §160A-388(e2)
Finally, the rule lends itself to
objective, consistent, and fair application, gives property
owners predictability, and discourages frivolous litigation.
Turning to the facts of this case, respondents seek a
Special Use Permit to open an adult establishment in compliance
with the Raleigh City Code. The proposed establishment would be
located near the end of Mount Herman Road, a small, dead-end
street in an industrial zoning district. The adjacent uses on
Mount Herman Road include a heavy equipment rental company, a
commercial steel company, a lumber company, an electrical
transformer plant, and a fifteen acre vacant parcel. Petitioners
are the owners of adjacent
properties, plus an
owner of property
that is located at least one-half mile from the site of the
proposed establishment and on a major highway that does not
connect to Mount Herman Road.
In their petition for writ of certiorari filed in the
superior court, petitioners alleged that they testified at the
hearing before the Board of Adjustment regarding the adverse
effects of the proposed adult establishment on their respective
adjacent and nearby properties. However, petitioners did not
allege that they would suffer special damages amounting to a
reduction in property values. Thus, the petition for writ of
certiorari failed to allege standing under North Carolina law.
, 275 N.C. at 161, 166 S.E.2d at 82
In its order denying respondents' motion to dismiss for
lack of subject matter jurisdiction, the trial court erroneously
concluded that petitioners have standing based on the applicable
provisions of the Raleigh City Code. The trial court incorrectly
concluded that the line of cases which require proof of specialdamages was inapposite and that petitioners did not need to show
special damages amounting to a proven diminution in property
values. The trial court added that,
in the alternative,
petitioners' allegations regarding increased traffic, increased
water runoff, parking, and safety concerns alone were sufficient
to establish special damages for standing purposes. Notably, the
trial court's order
lacks a finding that
experience a diminution in property values
The majority refrains from addressing the errors in the
trial court's order by stating in a footnote that its holding is
based on our prior case law and not the Raleigh City Code.
However, the majority has failed to cite any cases which hold
allegations regarding increased traffic, increased water
runoff, parking, and safety concerns alone are sufficient to
establish special damages for standing.
Our prior case law
indicates that adjacent and nearby property owners have standing
to appeal in quasi-judicial zoning cases only if
suffer special damages amounting to a diminution in property
The record of the hearing before the Board of
Adjustment clearly shows that petitioners have failed to present
evidence that they would suffer a diminution in property values.
Mr. Bunn testified at the hearing that inadequate parking,
increased traffic, water runoff, and safety issues would
adversely affect the adjacent properties. However, Mr. Bunn gave
no opinion regarding whether these concerns would diminish the
values of the properties belonging to petitioners. Petitioners
Mrs. Mangum, Mr. Overton, and Ms. Eure testified regarding their
concerns, which were largely based on the assumptions that theprovisions of the Raleigh City Code pertaining to parking were
inadequate or that respondents would fail to comply with the
conditions in the Special Use Permit. However, no witness
testified that the proposed establishment would diminish the
values of petitioners' properties. The only valuation evidence
presented by petitioners concerned a fifteen acre vacant parcel,
owned by a non-party to this action.
The evidence presented before the Board of Adjustment
demonstrates that, contrary to the majority's suggestion,
petitioners' lack of standing in this case goes beyond a mere
imprecision with the pen.
regarding the effects of
increased traffic, increased water runoff, parking, and safety
concerns, without evidence that these factors would in fact
diminish petitioners' property values, is simply too general to
support standing under North Carolina law.
petitioners have failed to satisfy the requirements for standing,
I would affirm the decision of the Court of Appeals.
Footnote: 1 The validity of the Board's decision is not presented to
us in this appeal.
Footnote: 2 The trial court wrote: [T]he Raleigh City Code protects
'adjacent properties' by requiring the Board to make findings
regarding the secondary effects of the proposed Adult
Establishment on such adjacent properties. The Code also
specifically recognizes that Adult Establishments 'because of
their very nature' have 'serious objectionable operational
characteristics' that extend into surrounding neighborhoods.
Because we hold that petitioners have standing under our prior
case law regardless of the terms of the Raleigh City Code, we
express no opinion whether the terms of the Code would be
sufficient to grant petitioners standing.
Footnote: 3 According to LaMarr Bunn's testimony, the public space of
the proposed building is 6,800 square feet, which requires 140
parking spots and equates to 560 seats in the facility. Thus,
the proposed plans would provide one parking spot for every four
seats in the establishment. While it was Mangum's opinion that
this was inadequate, the plan is within the standards specified
by § 10-2081 of the Raleigh City Code.
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