Wise Recycling, LLC v. Town of Clayton ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A p p e l l a t e P r o c e d u r e .
NO. COA14-4
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
WISE RECYCLING, LLC,
Petitioner,
v. Johnston County
No. 13 CVS 528
TOWN OF CLAYTON,
Respondent.
Appeal by Respondent from Order entered 29 July 2013 by
Judge Thomas H. Lock in Johnston County Superior Court. Heard in
the Court of Appeals 21 May 2014.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan,
L.L.P., by Lacy H. Reaves and Tobias R. Coleman, for
Petitioner.
Parker Poe Adams & Bernstein LLP, by Charles C. Meeker and
Katherine E. Ross, for Respondent.
STEPHENS, Judge.
Background
This case arises from Respondent Town of Clayton’s issuance
of a temporary use permit to Source Recycling. The permit
allowed Source Recycling to make use of certain facilities at
317 Pony Farm Road in Clayton, North Carolina. On 17 September
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2012, counsel for Petitioner Wise Recycling, LLC requested a
written interpretation of the Town’s Unified Development
Ordinance, contending that Source Recycling was in violation of
the permit. The Town’s planning director responded on 21
September 2012, stating that the permit was properly issued and
offering a legal basis for Source Recycling’s continued
operation on Pony Farm Road. Wise Recycling appealed that
interpretation to the Town’s Board of Adjustment on 5 October
2012.
The matter was heard before the Town’s Board of Adjustment
on 19 December 2012. Following the hearing, the Town voted to
dismiss Wise Recycling’s appeal “based on the facts that . . .
Wise Recycling does not have a real affect [sic] to [its]
property value and the fact that [its] property is not adjacent
[to 317 Pony Farm Road].” In a written notice to Wise Recycling
dated 24 January 2013, the Town advised Wise Recycling that its
appeal of the planning director’s interpretation was dismissed.
On 15 February 2013, Wise Recycling petitioned the Johnston
County Superior Court for review by way of a writ of certiorari.
In support of its petition, Wise Recycling argued that it “has
standing [because] its business was significantly and negatively
impacted by Source [Recycling]’s illegal operation of a
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competing business less than a mile from Wise [Recycling’s
p]roperty.” The Superior Court granted Wise Recycling’s petition
on 15 February 2013 and ordered a hearing. In the interim, the
Town filed a response to Wise Recycling’s petition, moving to
dismiss the writ on grounds that Wise Recycling “is not a person
aggrieved [and] does not have an interest in the property
affected nor can it show special damages.”
The hearing occurred on 15 July 2013. After the parties’
presentations, the trial court concluded that Wise Recycling had
standing to appeal the planning director’s interpretation,
reversed the decision of the Board of Adjustment, and remanded
for further proceedings. The trial court entered its written
order on 29 July 2013. The Town appeals that decision.
Discussion
On appeal, the Town argues that Wise Recycling did not have
standing to appeal the planning director’s interpretation
because it is not an aggrieved person under N.C. Gen. Stat. §§
160A-388, 393 (2013). In support of its position, the Town
asserts that Wise Recycling has offered no evidence of “special
damages” and points out that Wise Recycling’s property is almost
one mile away from Source Recycling. The Town also asserts that
standing should not be extended to a business competitor as a
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matter of public policy. Although neither party questions the
jurisdiction of this Court to review this matter, we must first
determine whether this case is properly before us for appellate
review. Akers v. City of Mount Airy, 175 N.C. App. 777, 778, 625
S.E.2d 145, 146 (2006) (“[When faced with] a jurisdictional
issue, this Court has an obligation to address the issue sua
sponte regardless [of] whether it is raised by the parties.”).
Indeed, the Town asserts as grounds for appellate review that it
“appeals as a matter of right . . . from the final judgment of a
[s]uperior [c]ourt.” This is incorrect.
As we stated in Richmond County Board of Education v.
Cowell:
The denial of a motion to dismiss is an
interlocutory order which is not immediately
appealable unless that denial affects a
substantial right of the appellant. The
appealing party bears the burden of
demonstrating that the order from which he
or she seeks to appeal is appealable despite
its interlocutory nature. Thus, the extent
to which an appellant is entitled to
immediate interlocutory review of the merits
of his or her claims depends upon his or her
establishing that the trial court’s order
deprives the appellant of a right that will
be jeopardized absent review prior to final
judgment.
. . . .
A motion to dismiss a party’s claim for lack
of standing is tantamount to a motion to
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dismiss for failure to state a claim upon
which relief can be granted according to
Rule 12(b)(6) of the North Carolina Rules of
Civil Procedure. A trial court’s denial of a
Rule 12(b)(6) motion to dismiss generally
does not affect a substantial right. Here,
[the] defendants have failed to show how the
trial court’s denial of their motion to
dismiss based upon lack of standing affects
a substantial right. If a party attempts to
appeal from an interlocutory order without
showing that the order in question is
immediately appealable, we are required to
dismiss that party’s appeal on
jurisdictional grounds.
__ N.C. App. __, __, 739 S.E.2d 566, 568–69 (citations and
internal quotation marks omitted), disc. rev. denied, __ N.C.
__, 747 S.E.2d 553 (2013).
The only issue raised by the Town is standing.1 On that
issue, as noted above, the Town offers no rationale for its
appeal from the trial court’s interlocutory order, merely making
the erroneous statement that it appeals from a final judgment as
a matter of right. By denying the Town’s motion to dismiss and
1
In its reply brief, the Town responds to Wise Recycling’s
argument that this case is not moot by asserting that the case
is moot because the temporary use permit has expired, but
acknowledging that this Court may nonetheless consider the
matter as “capable of repetition, yet evading review.” Because
we dismiss this appeal as interlocutory and “[s]ince the
question [of] whether an appeal is interlocutory presents a
jurisdictional issue,” we lack jurisdiction to review either
argument here. See Akers, 175 N.C. App. at 778, 625 S.E.2d at
146.
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remanding the case to the Board of Adjustment, the trial court
did not finally dispose of this case. Because the Town has not
shown that the trial court’s order affected a substantial right,
we must dismiss this appeal as interlocutory. See Jeffreys v.
Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d
252, 254 (1994) (“It is not the duty of this Court to construct
arguments for or find support for [the] appellant’s right to
appeal from an interlocutory order; instead, the appellant has
the burden of showing this Court that the order deprives the
appellant of a substantial right which would be jeopardized
absent a review prior to a final determination on the merits.”).
DISMISSED.
Judges STROUD and MCCULLOUGH concur.
Report per Rule 30(e).