Cherry v. Wiesner ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-155
Filed: 16 February 2016
Wake County, Nos. 14 CVS 4003, 14 CVS 4307
LOUIS CHERRY and MARSHA GORDON, Petitioners
v.
GAIL WIESNER, CITY OF RALEIGH, and RALEIGH BOARD OF ADJUSTMENT,
Respondents.
CITY OF RALEIGH, a municipal corporation, Petitioner
v.
RALEIGH BOARD OF ADJUSTMENT, LOUIS W. CHERRY, III, MARSHA G.
GORDON, and GAIL P. WIESNER, Respondents.
Appeal by respondent Gail Wiesner from order entered on 15 September 2014
by Judge Elaine M. O’Neal Bushfan in Superior Court, Wake County. Heard in the
Court of Appeals on 26 August 2015.
Kilpatrick Townsend & Stockton LLP, by Joseph S. Dowdy and Phillip A.
Harris, Jr., for petitioner-appellees Louis Cherry and Marsha Gordon.
City of Raleigh Attorney Thomas A. McCormick, by Deputy City Attorney
Dorothy K. Leapley and Associate City Attorney Nicolette Fulton, for petitioner-
appellee City of Raleigh.
Petesch Law, by Andrew J. Petesch, for respondent-appellant Gail Wiesner.
STROUD, Judge.
CHERRY V. WIESNER
Opinion of the Court
Synopsis of Opinion
Gail Wiesner (“respondent”) lives across the street from the single-family
“modernist” design home of Louis Cherry and Marsha Gordon (“petitioners”) in
Raleigh’s Oakwood neighborhood. Oakwood is a designated historic district, where
the design of new construction must be approved by the Raleigh Historic
Development Commission (“the Commission”). As required by the rules of the
historic district, before building on their vacant lot, petitioners applied for a
certificate of appropriateness to build their new home (“the Cherry-Gordon house”).
When the Commission held hearings to consider the application, respondent and
others objected to petitioners’ proposed modernist design because they considered it
incongruous with the other houses in the historic district. After a series of hearings,
the Commission approved the design, but then the Raleigh Board of Adjustment (“the
Board”) rejected the design. Petitioners then appealed the Board’s ruling to the
Superior Court, which reviews decisions of the Board and the Commission to make
sure that their rulings comply with the law. The Superior Court reversed the Board’s
decision, which meant that the Commission’s decision to approve the design was
affirmed.1 This opinion addresses respondent’s appeal from the Superior Court’s
ruling.
1 We refer to the Cherry-Gordon house as an existing home instead of a proposed home, since
petitioners elected to proceed with construction of the home despite the pendency of this appeal,
understanding the risk that they could be required to demolish it.
-2-
CHERRY V. WIESNER
Opinion of the Court
The Superior Court did not rule on the question of the Cherry-Gordon house’s
modernist design and the claim of “incongruity” with the historic district but decided
that respondent did not have legal standing to challenge the approval of the design.
A person who brings a legal action challenging a land use decision like this one must
have “standing” to bring the action. The applicable statute gives “standing” only to
an “aggrieved party,” as the law defines that term. Although respondent lives across
the street from the Cherry-Gordon house, the location of her home does not
automatically give her standing to challenge the issuance of the certificate. A nearby
landowner has standing to challenge a land use decision like this one only if the new
construction will cause him to suffer some type of “special damages” distinct from
other landowners in the area. Usually, special damages include economic damages
such as a decrease in property value and other direct adverse effects on the property
of the landowner challenging the proposed land use, such as smoke, light, noise, or
vandalism created by the new property use, which are different from the effects on
the rest of the neighborhood. Respondent’s claims of damages from the Cherry-
Gordon house are all essentially aesthetic, since she believes the house does not fit in
with the historic neighborhood and is unpleasant for her to see from her home across
the street. Even if she is correct in her assessment of the Cherry-Gordon house’s
design, respondent has failed to show that she is an “aggrieved party” as the law
-3-
CHERRY V. WIESNER
Opinion of the Court
defines that term, so the Superior Court’s order reversing the Board’s decision was
correct and we affirm it.
I. Background
On or about 23 August 2013, petitioners filed an Application for Certificate of
Appropriateness with the Commission seeking a determination that their plan for
the construction of the Cherry-Gordon house on a vacant lot in the Oakwood Historic
District of Raleigh was not incongruous with the guidelines of the City of Raleigh.
On 9 September 2013, the Certificate of Appropriateness Committee of the
Commission (“the Committee”) held a hearing on petitioners’ application and voted
to approve in part their application (“design approval”) subject to certain conditions
and to defer consideration of the Cherry-Gordon house’s windows until a subsequent
hearing. On 7 October 2013, the Committee held a second hearing and voted to
approve petitioners’ application regarding the proposed windows (“window
approval”). On 17 September 2013, respondent gave notice of an intention to appeal
the Committee’s design approval decision to the Board, and on 24 October 2013,
respondent gave notice of an intention to appeal the Committee’s window approval
decision to the Board. On 24 October 2013, petitioners purchased a building permit
from the City of Raleigh and began construction of the Cherry-Gordon house
pursuant to the certificate of appropriateness.
-4-
CHERRY V. WIESNER
Opinion of the Court
On or about 7 November 2013, respondent, through counsel, submitted her
Application for Review of the Committee’s design approval decision with the Board.
The Application for Review form includes the following question: “EXPLAIN TO
THE BOARD HOW YOU ARE AN AGGRIEVED PARTY[.]” (Emphasis in
original.) Respondent answered: “As a resident adjacent to the subject property and
a property owner in the Oakwood Historic District, I opposed and sought the denial
of the Application for Certificate of Appropriateness, No. 135-13-CA, for 516 Euclid
Street.” Respondent also stated:
The structure as proposed is incongruous to the Oakwood
Historic District. It will harm the character of the
neighborhood and contribute to erosion of the
neighborhood’s value as an asset to its residents, to the
surrounding communities, to the businesses it supports, to
in-town and out-of-town visitors, and to the City as a whole.
Respondent also alleged that the Committee made various procedural errors.
On or about 6 December 2013, respondent, again through counsel, submitted
a substantively identical Application for Review of the Committee’s window approval
decision to the Board. Under the “EXPLAIN TO THE BOARD HOW YOU ARE
AN AGGRIEVED PARTY” question, respondent answered:
As a resident adjacent to the subject property and a
property owner in the Oakwood Historic District, I opposed
and sought the denial of the Application for Certificate of
Appropriateness, No. 135-13-CA, for 516 Euclid Street at
both the Sept. 9, 2013 and Oct. 7, 2013 public hearings
before the Certificate of Appropriateness Committee.
-5-
CHERRY V. WIESNER
Opinion of the Court
Respondent also stated:
The windows proposed for the dwelling structure are
incongruous to the Oakwood Historic District. It will harm
the character of the neighborhood and contribute to erosion
of the neighborhood’s value as an asset to its residents, to
the surrounding communities, to the businesses it
supports, to in-town and out-of-town visitors, and to the
City as a whole.
Respondent again alleged that the Committee made various procedural errors.
The Commission answered respondent’s pleadings and moved to dismiss her
appeal to the Board for lack of standing.2 On 13 January 2014, the Board held a
hearing on respondent’s appeal and the Commission’s motion to dismiss for lack of
standing but postponed rendering its decision until a 10 February 2014 hearing. The
Board invited the parties to submit written responses by 31 January 2014. On or
about 31 January 2014, respondent filed a brief in which she argued:
[T]he Record is sufficient to demonstrate that she will
suffer special damages distinct from the rest of the
community if an incongruous structure is constructed
directly across the street from her home. However, should
the Board need additional evidence as to special damages,
[respondent] requests that she be permitted to present
such evidence to the Board.
At a 10 February 2014 hearing, the Board announced its ruling to reverse the
Commission’s decision but did not directly address the issue of standing.
2 The record does not provide a date for the Commission’s answer and motion to dismiss.
-6-
CHERRY V. WIESNER
Opinion of the Court
On or about 20 February 2014, petitioners moved to alter or amend the
judgment. On or about 10 March 2014, the City of Raleigh filed procedural objections
to the Board’s proposed findings and conclusions, including an argument that the
Board had not addressed the issue of standing. At a 10 March 2014 hearing, the
Board announced its ruling denying petitioners’ motion and voted to approve the
minutes of the 10 February 2014 hearing. The Board’s counsel noted:
With regard to this standing issue, I don’t know that
the Board is equipped to determine whether or not
[respondent] sustained special damages, but I do—do
believe that, by continuing with the hearing, that that was
tantamount to making a determination that standing did
exist. And, certainly, that is something that’s preserved on
the record for the City [of Raleigh] to appeal.
On 28 March 2014, petitioners filed a petition for writ of certiorari and a motion
to stay in the Superior Court in Wake County, arguing that respondent lacked
standing, among other arguments. On 31 March 2014, the Clerk of Superior Court
for Wake County granted petitioners’ petition and issued a writ of certiorari. On 31
March 2014, petitioners moved for a temporary restraining order and a preliminary
injunction. On 2 April 2014, the trial court granted petitioners’ motion for a
temporary restraining order. The trial court ordered that respondent “shall cease,
desist and refrain from enforcing” the Board’s decision and “any subsequent threat of
a Stop Work Order” and that petitioners “shall cease work” on the Cherry-Gordon
house, provided that they “are allowed to preserve the property from ruin by wind,
-7-
CHERRY V. WIESNER
Opinion of the Court
water, mildew, vandalism, as well as potential harm to trespassers[.]” On 2 April
2014, the City of Raleigh also filed a petition for writ of certiorari also arguing that
respondent lacked standing, among other arguments. On 2 April 2014, the Clerk of
Superior Court for Wake County granted the City of Raleigh’s petition and issued a
writ of certiorari. On 11 April 2014, the trial court granted petitioners’ motion for a
preliminary injunction.
On 7 August 2014, in both certiorari proceedings, respondent moved to
supplement the record to include two affidavits addressing the issue of standing. On
14 August 2014, respondent answered both petitioners’ and the City of Raleigh’s
petitions and moved to strike certain allegations and exhibits included in petitioners’
petition. On 15 August 2014, the City of Raleigh moved to supplement the record to
include certain documents that were before the Committee but were missing from the
Board’s record. On 22 August 2014, petitioners responded to respondent’s motion to
strike and moved to supplement the record. On 22 August 2014, petitioners also
responded to respondent’s motion to supplement, noting that respondent could have
introduced the two affidavits about nine months earlier when she first appealed to
the Board. The trial court held a hearing on 25 and 26 August 2014. On 25 August
2014, the City of Raleigh orally moved to consolidate the two certiorari proceedings.
On 8 September 2014, the trial court granted the City of Raleigh’s motion to
supplement the record and motion to consolidate.
-8-
CHERRY V. WIESNER
Opinion of the Court
On 15 September 2014, the trial court entered an order in which it (1)
concluded that respondent lacked standing and thus reversed the Board’s decision;
(2) affirmed the Commission’s decisions; (3) denied respondent’s motion to
supplement the record; and (4) denied respondent’s motion to strike and petitioners’
motion to supplement the record as moot. On 3 October 2014, respondent gave timely
notice of appeal.
II. Discussion
Respondent argues that the trial court erred in (1) concluding that she lacked
standing to appeal the Commission’s decisions to the Board; (2) finding that
respondent had the opportunity to allege standing before the Board; (3) denying
respondent’s motion to supplement the record; (4) failing to determine what
competent, material, and substantial evidence was before the Committee; (5)
concluding that competent, material, and substantial evidence in the whole record
supported the Committee’s findings of fact and that the Committee’s decisions were
not arbitrary; and (6) concluding that the Committee did not act outside the scope of
its authority or apply improper standards or interpretations of standards. Because
we hold that respondent lacked standing to appeal the Committee’s decisions to the
Board, we do not address issues (4), (5), and (6).
A. Standing
i. Standard of Review
-9-
CHERRY V. WIESNER
Opinion of the Court
“Standing is a necessary prerequisite to a court’s proper exercise of subject
matter jurisdiction, and is a question of law which this Court reviews de novo.” Smith
v. Forsyth Cty. Bd. of Adjust., 186 N.C. App. 651, 653, 652 S.E.2d 355, 357 (2007)
(citations, quotation marks, and brackets omitted).
ii. Analysis
The party invoking jurisdiction has the burden of proving the elements of
standing. Neuse River Found., Inc. v. Smithfield Foods, Inc., 155 N.C. App. 110, 113,
574 S.E.2d 48, 51 (2002), disc. review denied, 356 N.C. 675, 577 S.E.2d 628 (2003).
As a jurisdictional requirement, standing relates not to the power of the court but to
the right of the party to have the court adjudicate a particular dispute. North
Carolina courts began to use
the term “standing” in the 1960s and 1970s to refer
generally to a party’s right to have a court decide the merits
of a dispute. Standing most often turns on whether the
party has alleged “injury in fact” in light of the applicable
statutes or caselaw. Here, we must also examine the forms
of relief sought. See [Friends of Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc.], 528 U.S. 167, 185,
145 L. Ed. 2d 610, 629 (2000) (“a plaintiff must
demonstrate standing separately for each form of relief
sought”).
Id. at 114, 574 S.E.2d at 52 (citations omitted).
Since standing is a jurisdictional requirement, the party seeking to bring her
claim before the court must include allegations which demonstrate why she has
standing in the particular case:
- 10 -
CHERRY V. WIESNER
Opinion of the Court
Since the elements of standing are not mere pleading
requirements but rather an indispensable part of the
plaintiff’s case, each element must be supported in the
same way as any other matter on which the plaintiff bears
the burden of proof, i.e., with the manner and degree of
evidence required at the successive stages of the litigation.
Id. at 113, 574 S.E.2d at 51 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561,
119 L. Ed. 2d 351, 364 (1992)) (brackets omitted). “It is not necessary that a party
demonstrate that injury has already occurred, but a showing of immediate or
threatened injury will suffice for purposes of standing.” Mangum v. Raleigh Bd. of
Adjust., 362 N.C. 640, 642-43, 669 S.E.2d 279, 282 (2008) (quotation marks omitted).
In the context of an appeal regarding a land use decision such as this case, N.C.
Gen. Stat. § 160A-400.9(e) sets forth both the proper court to consider the appeal and
the requirements of standing for parties seeking review:
An appeal may be taken to the Board of Adjustment
from the commission’s action in granting or denying any
certificate, which appeals (i) may be taken by any aggrieved
party, (ii) shall be taken within times prescribed by the
preservation commission by general rule, and (iii) shall be
in the nature of certiorari. Any appeal from the Board of
Adjustment’s decision in any such case shall be heard by
the superior court of the county in which the municipality
is located.
N.C. Gen. Stat. § 160A-400.9(e) (2013) (emphasis added).
- 11 -
CHERRY V. WIESNER
Opinion of the Court
Thus, “any aggrieved party” may appeal a decision of a board of adjustment3
to the superior court in the county where the municipality is located. See N.C. Gen.
Stat. § 160A-400.9(e). Our case law has further defined the term “aggrieved party,”
particularly in the context of land use disputes:
Aggrieved parties include owners of property upon which
restrictions are imposed and those who have sustained
pecuniary damage to real property in which they have an
interest. Not only is it the petitioner’s burden to prove that
he will sustain a pecuniary loss, but he must also allege the
facts on which the claim of aggrievement is based. The
petition must therefore allege the manner in which the
value or enjoyment of petitioner’s land has been or will be
adversely affected. Examples 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 traffic congestion and increase the noise
level. Once the petitioner’s aggrieved status is properly put
in issue, the trial court must, based on the evidence
presented, determine whether an injury has resulted or
will result from the zoning action.
Kentallen, Inc. v. Town of Hillsborough, 110 N.C. App. 767, 769-70, 431 S.E.2d 231,
232 (1993) (citations, quotation marks, and brackets omitted). “[T]o be considered an
‘aggrieved person’ and thus have standing to seek review, a party must claim special
damages, distinct from the rest of the community.” Casper v. Chatham Cty., 186 N.C.
App. 456, 458, 651 S.E.2d 299, 301 (2007).
3 “The board of adjustment shall hear and decide appeals from decisions of administrative
officials charged with enforcement of the zoning or unified development ordinance and may hear
appeals arising out of any other ordinance that regulates land use or development[.]” N.C. Gen. Stat.
§ 160A-388(b1) (2013).
- 12 -
CHERRY V. WIESNER
Opinion of the Court
A reduction in value of property may be part of the basis for standing, but
diminution in value alone is not sufficient:
A property owner does not have standing to
challenge another’s lawful use of her land merely on the
basis that such use will reduce the value of her property.
However, where the challenged land use 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 an action to prevent the
use.
Additionally, in [Mangum], our Supreme Court held
that the petitioners in that case had standing to maintain
their suit where the petitioners: (1) challenged a land use
that would be unlawful without a special use permit; (2)
alleged they would suffer special damages if the use is
permitted; and (3) provided evidence of increased traffic,
increased water runoff, parking, and safety concerns, as
well as the secondary adverse effects that would result
from the challenged use. 362 N.C. at 643-44, 669 S.E.2d at
282-83. Recently, this Court applied the standard set forth
in [Mangum] and concluded that a petitioner challenging
her neighbor’s application for a use permit on the basis that
the proposed use would reduce the value of the petitioner’s
property was sufficient to establish the petitioner had
standing. [Sanchez v. Town of Beaufort, 211 N.C. App. 574,
579, 710 S.E.2d 350, 353-54, disc. review denied, 365 N.C.
349, 717 S.E.2d 745 (2011).]
We discern no meaningful distinction between
[Mangum], Sanchez, and the present case. Here,
petitioners testified to their concerns that the alleged
unlawful approval of the Training Facility would increase
noise levels, had the potential to result in groundwater and
soil contamination, and threatened the safety of anyone on
their property due to stray bullets. These problems,
petitioners contend, would result in a decrease in their
property values. We conclude this evidence was sufficient
to establish standing to challenge [the intervenor-
- 13 -
CHERRY V. WIESNER
Opinion of the Court
respondent’s] proposed land use.
Fort v. Cnty. of Cumberland, 218 N.C. App. 401, 404-05, 721 S.E.2d 350, 353-54
(citations and quotation marks omitted), disc. review denied, 366 N.C. 401, 735 S.E.2d
180 (2012).
The fact that respondent owns property “immediately adjacent to or in close
proximity to the subject property” also bears some weight on the issue of whether the
party will suffer special damages, but status as an adjacent landowner alone is
insufficient to confer standing. Mangum, 362 N.C. at 644, 669 S.E.2d at 283.
In Kentallen, the petitioner was an adjoining landowner who challenged the
issuance of a special exception permit to the respondents allowing construction of a
“thirty-foot by thirty-five-foot addition to a metal storage building” which was
“located less than the required twenty feet from the rear boundary” of the
respondents’ lot; the building was a nonconforming use under the applicable
ordinance. Kentallen, 110 N.C. App. at 768, 431 S.E.2d at 231-32. The petitioner
alleged that the view of the building “would not be visually attractive.” Id., 431
S.E.2d at 231-32. This Court held that the petitioner was not an aggrieved party:
In this case, [the petitioner’s] allegation that it is the
“owner of adjoining property” does not satisfy the pleading
requirement, in that there is no allegation relating to
whether and in what respect [the petitioner’s] land would
be adversely affected by the [Board of Adjustment for the
Town of Hillsborough’s] issuance of the special exception
permit. Furthermore, the evidence presented before the
Board, that the requested construction would increase “the
- 14 -
CHERRY V. WIESNER
Opinion of the Court
negative impact” on the petitioner’s property and “would
not be visually attractive,” is much too general to support
a finding that [the petitioner] will or has suffered any
pecuniary loss to its property due to the issuance of the
permit.
Id. at 770, 431 S.E.2d at 233 (brackets omitted).
Vague, general allegations that a property use will impair property values in
the general area also will not confer standing. In Lloyd v. Town of Chapel Hill, this
Court held that the parties’ allegation that they “owned property in the immediate
vicinity of that upon which variances [from a town ordinance] had been sought and
that grant of the variances would materially adversely affect the value of [their]
property” did not demonstrate “special damages distinct from the rest of the
community.” Lloyd v. Town of Chapel Hill, 127 N.C. App. 347, 351, 489 S.E.2d 898,
900 (1997) (citation, quotation marks, and brackets omitted). Similarly, in Davis v.
City of Archdale, this Court held that the parties’ allegation that rezoning ordinances
would diminish the value of their property because they would increase “traffic on
roads which already carry traffic volumes in excess of capacity and [would] increase[]
demands upon already overburdened public utilities” did not demonstrate “special
damages distinct from those of the rest of the community.” Davis v. City of Archdale,
81 N.C. App. 505, 508, 344 S.E.2d 369, 371 (1986). In these cases, although the
challengers to the land use alleged impairment of property values, the allegation was
general for the entire neighborhood or area and not specific to a certain parcel of
- 15 -
CHERRY V. WIESNER
Opinion of the Court
property. See id., 344 S.E.2d at 371; Lloyd, 127 N.C. App. at 351, 489 S.E.2d at 900.
And we note that even assuming that respondent’s allegations are true and the
proposed use will actually adversely affect property values in the general vicinity,
because this type of effect is not distinct to the particular landowner who is
challenging a land use, this factor alone does not confer standing. See Davis, 81 N.C.
App. at 508, 344 S.E.2d at 371; Lloyd, 127 N.C. App. at 351, 489 S.E.2d at 900.
Several cases have provided examples of the types of special damages which
will give a landowner standing to challenge a land use decision. In Mangum, our
Supreme Court held that several adjacent and nearby landowners’ allegations that
the issuance of a special use permit for the construction of an adult establishment
would cause “vandalism, safety concerns, littering, trespass, and parking overflow
from the proposed business to [the parties’] adjacent or nearby lots” demonstrated
special damages. Mangum, 362 N.C. at 645-46, 669 S.E.2d at 283-84. Similarly, in
Sanchez, the petitioner’s home was in a waterfront historic district across the street
from the “Carpenter Cottage”; the respondent purchased the Carpenter Cottage and
applied for a permit to demolish the cottage and build a one-and-one-half story
structure which would block the petitioner’s view of the water. Sanchez, 211 N.C.
App. at 575-76, 710 S.E.2d at 351-52. The petitioner objected to the height of the
respondent’s proposed structure. Id. at 576, 710 S.E.2d at 352. The historic
commission denied the application due to the proposed structure’s height; the
- 16 -
CHERRY V. WIESNER
Opinion of the Court
respondent appealed to the board of adjustment, which found that the commission’s
height limitation was “arbitrary and capricious” and remanded to the commission for
issuance of a permit. Id. at 577, 710 S.E.2d at 352. The superior court affirmed the
decision of the board of adjustment, and this Court affirmed. Id. at 577, 583, 710
S.E.2d at 352, 356. On the issue of standing, this Court noted the petitioner’s
allegations that the proposed structure “would interfere with her use of her property
by causing her to lose her private waterfront view” and that “the loss of this view
would reduce the value of [her] property by at least $100,000” as sufficient to show
that she suffered special damages. Id. at 579, 710 S.E.2d at 353-54.4
In this case, respondent alleged that she would suffer special damages because
the Cherry-Gordon house is “directly across the street from her home” and that its
architectural incongruity would “harm the character of the neighborhood and
contribute to erosion of the neighborhood’s value[.]” On appeal, her arguments are
purely aesthetic or are not distinct to her property. She notes that her
home sits directly across from the Cherry-Gordon property
on a narrow street with no sidewalks. The front setbacks
are especially shallow, with the two-story Cherry-Gordon
dwelling only less than fifteen feet from the curb.
[Respondent’s] home features a wide front porch and many
front windows.
At the September 2013 [Commission] meeting,
4 But as to the substantive issue—the approval of the proposed structure—the petitioner lost,
since this Court agreed with the board of adjustment that the commission’s height limitation was
arbitrary. Id. at 582-83, 710 S.E.2d at 356. In other words, the damage to the petitioner’s property
value and view gave her standing but did not determine her claim on the merits. See id., 710 S.E.2d
at 356.
- 17 -
CHERRY V. WIESNER
Opinion of the Court
[respondent] opposed the 516-COA application for
including multiple incongruous elements. Taking that
allegation of incongruity as true, the Cherry-Gordons’
proposed design would have dominated the view and vista
from [respondent’s] front windows, porch and yard with an
incongruous structure. [Respondent] also addressed
several adverse effects that would result [from] such
incongruity, including reduced property values and
impaired enjoyment of the neighborhood.
(Citations omitted.)
But these allegations do not demonstrate special damages distinct to
respondent, other than the view from her front porch; rather, respondent alleges a
generalized damage to the overall neighborhood—“reduced property values and
impaired enjoyment of the neighborhood.” The mere fact that respondent’s home is
“directly across the street” from the Cherry-Gordon house does not constitute special
damages. See Mangum, 362 N.C. at 644, 669 S.E.2d at 283; Kentallen, 110 N.C. App.
at 770, 431 S.E.2d at 233. Respondent’s allegation is akin to the allegations in
Kentallen, Lloyd, and Davis, where this Court held that the party had failed to allege
special damages. See Kentallen, 110 N.C. App. at 770, 431 S.E.2d at 233; Lloyd, 127
N.C. App. at 351, 489 S.E.2d at 900; Davis, 81 N.C. App. at 508, 344 S.E.2d at 371;
Sarda v. City/Cty. of Durham Bd. of Adjust., 156 N.C. App. 213, 215, 575 S.E.2d 829,
831 (2003) (“Petitioners’ mere averment that they own land in the immediate vicinity
of the property for which the special use permit is sought, absent any allegation of
special damages distinct from the rest of the community in their Petition, is
- 18 -
CHERRY V. WIESNER
Opinion of the Court
insufficient to confer standing upon them.”) (citation and quotation marks omitted).
Respondent makes no allegation of damages particular to her property like the
allegation of potential “vandalism, safety concerns, littering, trespass, and parking
overflow” in Mangum or the allegation of the loss of a waterfront view and the
resulting reduction of market value of the property in Sanchez. See Mangum, 362
N.C. at 645-46, 669 S.E.2d at 283-84; Sanchez, 211 N.C. App. at 579, 710 S.E.2d at
353-54. Because respondent has failed to even allege special damages, she is not an
aggrieved party and thus lacks standing to contest the Committee’s decisions. See
Casper, 186 N.C. App. at 458, 651 S.E.2d at 301; N.C. Gen. Stat. § 160A-400.9(e).
iii. Respondent’s Opportunity to Allege Standing
Respondent responds that she did not have an opportunity to allege standing
before the Board. But respondent’s argument is not so much that she did not have
the opportunity but that she did not realize that she needed to make a showing of her
special damages. She actually had multiple opportunities to allege standing before
the Board. After retaining counsel, respondent submitted two separate Applications
for Review of the Committee’s decisions to the Board. The Applications for Review
were on forms provided for this purpose. The form has some instructions and
questions with blanks for answers. The second page of the form includes the following
section of instructions:
General Statute 160A-400.9(e) provides that “An appeal
may be taken to the Board of Adjustment from the
- 19 -
CHERRY V. WIESNER
Opinion of the Court
Commission’s action in granting or denying any certificate,
which appeals (i) may be taken by any aggrieved party, (ii)
shall be taken within times prescribed by the preservation
commission by general rule, and (iii) shall be in the nature
of Certiorari. Any appeal from the Board of Adjustment’s
decision in any such case shall be heard by the Superior
Court of the County in which the municipality is located.”
Appeals in the nature of Certiorari means that the Board
of Adjustment may review your case, but any review must
be on the record of the case presented to the Commission
and no new evidence can be introduced at this hearing.
To clearly present your case, attach to this application the
adopted minutes of the Commission meeting(s) (attached
hereto as Exhibit A),[5] copies of your COA application,
any exhibits presented to the Commission during the
hearing(s), copies of pertinent excerpts from the rules of
procedure of the Commission, and any other relevant
documents that were presented at the hearing. These
copies must be obtained from the Commission to ensure
that they are from the official record of the case. The
Commission will forward any physical evidence in the
record (photos, material samples, audiotape, etc.) to the
[Board] for review during the hearing on your appeal.
EXPLAIN TO THE BOARD HOW YOU ARE AN
AGGRIEVED PARTY:
The Application for Review form quotes the applicable statute, N.C. Gen. Stat. §
160A-400.9(e), as we discussed above, and explains the appeal process. In boldface
and capitalized letters, the Application for Review form then asks the applicant to
explain why she has standing, since only an “aggrieved party” may have standing to
5 Respondent inserted this portion in bold in her first Application for Review and attached the
minutes of the Committee’s 9 September 2013 hearing as Exhibit A. The remainder of the text quoted
is from the form itself.
- 20 -
CHERRY V. WIESNER
Opinion of the Court
challenge the Commission’s decision. Respondent argues: “Allowing the City [of
Raleigh] to successfully challenge standing on the basis of an application that uses
the word ‘aggrieved,’ but without any language as to special damages, would be
contrary to the concept and principles of notice pleading.” Essentially, respondent
argues that her application was sufficient to give “notice” of the basis for her claim,
and that she should not be required to set forth specific allegations of her special
damages, particularly since the Application for Review form did not set forth a
definition of the term “aggrieved party.” But the Application for Review form goes
above and beyond the call of duty in setting forth the applicable statute and general
appeal procedure. Ignorance of the law is no excuse; a party does not need notice that
she must allege standing because standing is a jurisdictional prerequisite and the
complaining party bears the burden of alleging in its pleadings that it has standing.
See Smith, 186 N.C. App. at 653, 652 S.E.2d at 357; Kentallen, 110 N.C. App. at 769,
431 S.E.2d at 232; Neuse River Found., 155 N.C. App. at 113, 574 S.E.2d at 51; N.C.
Gen. Stat. § 160A-400.9(e). In addition, even after the Commission moved to dismiss
her appeal for lack of standing and the Board invited the parties to submit written
responses, respondent failed to allege special damages.
Respondent also notes that the Board did not properly consider the issue of
standing and if it had, she would have sought to supplement her evidence earlier in
the process. Essentially, this argument is that the Board failed to directly address
- 21 -
CHERRY V. WIESNER
Opinion of the Court
her standing and if it had, she would have submitted additional evidence. We agree
that the Board should have explicitly ruled upon the Commission’s motion to dismiss
for lack of standing, but as the Board’s counsel noted at the 10 March 2014 hearing,
the Board obviously found that respondent had standing since otherwise it would not
have considered respondent’s appeal and ruled in her favor. But standing is a
jurisdictional issue, which this Court would have to consider on appeal de novo, even
if the Commission had not filed a motion to dismiss raising this defense, and even if
the Commission, Board, and Superior Court had all failed to address it. See Fort, 218
N.C. App. at 404, 721 S.E.2d at 353 (“Whether a party has standing to maintain an
action implicates a court’s subject matter jurisdiction and may be raised at any time,
even on appeal.”) (citation and quotation marks omitted).
Even though the Board failed to directly rule upon the motion to dismiss, this
does not relieve respondent of her burden to allege standing in her pleadings since
standing is a jurisdictional prerequisite. See Smith, 186 N.C. App. at 653, 652 S.E.2d
at 357; Kentallen, 110 N.C. App. at 769, 431 S.E.2d at 232; Neuse River Found., 155
N.C. App. at 113, 574 S.E.2d at 51; N.C. Gen. Stat. § 160A-400.9(e). In any event, the
Commission raised the issue of respondent’s standing in its first responsive pleading,
thus highlighting the need for support for her status as an aggrieved party. In sum,
we hold that respondent had multiple opportunities to allege standing before the
- 22 -
CHERRY V. WIESNER
Opinion of the Court
Board. We therefore hold that the trial court did not err in concluding that
respondent lacked standing despite the Board’s failure to directly address the issue.
B. Respondent’s Motion to Supplement the Record
Respondent next contends that the trial court erred in denying her motion to
supplement the record to include two affidavits addressing the issue of standing. One
was her own affidavit and the other an affidavit from Michael R. Ogburn, a real estate
appraiser.
i. Standard of Review
N.C. Gen. Stat. § 160A-393(j) provides that the trial court “may, in its
discretion, allow the record to be supplemented with affidavits, testimony of
witnesses, or documentary or other evidence if, and to the extent that, the record is
not adequate to allow an appropriate determination of the following issues: (1)
Whether a petitioner or intervenor has standing.” N.C. Gen. Stat. § 160A-393(j)
(2013) (emphasis added). “To demonstrate an abuse of discretion, the appellant must
show that the trial court’s ruling was manifestly unsupported by reason, or could not
be the product of a reasoned decision.” Terry’s Floor Fashions, Inc. v. Crown Gen.
Contr’rs, Inc., 184 N.C. App. 1, 17, 645 S.E.2d 810, 820 (2007) (citation omitted), aff’d
per curiam, 362 N.C. 669, 669 S.E.2d 321 (2008).
ii. Analysis
- 23 -
CHERRY V. WIESNER
Opinion of the Court
Respondent moved to supplement the record to include two affidavits
addressing the issue of standing. Respondent’s brief fails to state any reason why the
trial court’s decision not to allow supplementation of the record was “manifestly
unsupported by reason[.]” See id., 645 S.E.2d at 820 (citation omitted). The legal
authority cited for her claim of abuse of discretion is a general reference to our
Supreme Court’s statement in Mangum that
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.
See Mangum, 362 N.C. 642, 669 S.E.2d at 281-82 (brackets and ellipsis omitted). This
statement is true, but it does not explain how the trial court may have abused its
discretion in denying respondent’s request to supplement the record. As discussed
above, the initial appeal form directed respondent to state why she was an “aggrieved
party,” but she failed to allege any special damages. The Commission raised the issue
of respondent’s standing before the Board, and respondent again had multiple
opportunities before the Board to present evidence to support her standing but failed
to do so. In fact, respondent’s motion to supplement was not filed until 7 August
2014, about nine months after her initial Application for Review in which she had the
burden of demonstrating why she would have standing to obtain review and only 18
days before the 25 August 2014 hearing before the Superior Court. This delay alone
- 24 -
CHERRY V. WIESNER
Opinion of the Court
could justify the trial court’s discretionary denial of her motion. In addition,
respondent had already submitted a tremendous amount of information as part of
her opposition to the Commission’s approval; the record in this case is over 1,200
pages.
We also note that the affidavits which she proffered as supplements add very
little new substantive information to the already voluminous record and would not
have provided a basis for standing. Respondent’s own affidavit details the location of
her home, her education and experience as a real estate broker, her opinion that the
Cherry-Gordon house is “significantly incongruous” with the Oakwood Historic
District, and details regarding the neighborhood. The only item of alleged impact
upon respondent’s property which could arguably be considered as distinct from the
entire neighborhood noted in the affidavit is her complaint of increased traffic from
people “gawk[ing]” at the “modernist house[.]” As “an example” of the Cherry-Gordon
house’s impact on her property, she avers:
[N]ews reporters and other media agents staked out in
front of and around my property waiting to ambush me
with the intention of obtaining unscheduled interviews.
Upon information and belief, it is [petitioners] and their
agents who have fomented a significant amount of media
coverage in this matter. This unwanted attention creates
ingress and egress problems as well as a significant
amount of anxiety for my husband and [me]. As a result of
stories published in, among others, the News & Observer,
Vanity Fair, Boston Globe, Seattle Times, and New York
Times as well as a feature on the Today Show, I have
received dozens of unsolicited emails and phone calls
- 25 -
CHERRY V. WIESNER
Opinion of the Court
expressing rude, harassing, and graphic commentary on
my involvement in this matter, even though I am only
exercising my statutory right to seek review of a COA
approval.
Even if the Cherry-Gordon house has generated increased “gawk[er]” traffic
and unwanted media attention, respondent’s affidavit indicates that the traffic
increased due to the publicity surrounding the challenge to the construction of the
Cherry-Gordon house. This is simply not the sort of increased traffic our prior cases
have addressed as part of the basis for standing of an adjacent property owner to
challenge a permit, since traffic is not generated by the usual or intended use of the
Cherry-Gordon house or property itself but is generated only by the media coverage
of the controversy surrounding its construction. The Cherry-Gordon house is a 2,580-
square-foot single-family residence, and the record shows that it would generate
exactly the same type of “traffic” in its normal use as respondent’s home or any other
single-family residence of similar size.
The second affidavit provides some additional information regarding
respondent’s allegations regarding impairment of property values. The affidavit of
Michael R. Ogburn details Mr. Ogburn’s qualifications as a real estate appraiser and
his opinion that respondent’s property “will be adversely affected in terms of property
value and marketability by the existence of the [Cherry-Gordon house] and that those
effects, from a residential housing market standpoint, would be significant.” This
affidavit could arguably demonstrate a claim of special damages due to a decrease in
- 26 -
CHERRY V. WIESNER
Opinion of the Court
respondent’s property value (and not to the property values in the neighborhood
generally), but as noted above, allegations of a decrease in value alone are not
sufficient. See Fort, 218 N.C. App. at 404, 721 S.E.2d at 353 (“A property owner does
not have standing to challenge another’s lawful use of her land merely on the basis
that such use will reduce the value of her property.”). Although the parties dispute
whether the Cherry-Gordon house is architecturally congruous with the Oakwood
Historic District, petitioners’ use of the property for a single-family residence is
clearly lawful, and Mr. Ogburn’s affidavit does not address any sort of secondary
impacts upon respondent’s property, such as traffic, noise, light, odors, runoff, or any
other sort of potential damage generated by the use of petitioners’ property. Overall,
the trial court’s decision to deny the motion to supplement was entirely reasonable,
and we hold that the trial court did not abuse its discretion in denying respondent’s
motion to supplement the record.
III. Conclusion
For the foregoing reasons, we affirm the trial court’s order.
AFFIRMED.
Judges CALABRIA and McCULLOUGH concur.
- 27 -