Wil-Hol Corp. v. Marshall

322 S.E.2d 655 (1984)

WIL-HOL CORPORATION, Plaintiff,
v.
Zula MARSHALL, Ray Joyner and Tillie Joyner, Defendants/Third Party Plaintiffs,
v.
TOWN OF WAKE FOREST, Third Party Defendant.

No. 8410DC152.

Court of Appeals of North Carolina.

December 4, 1984.

East Central Community Legal Services by Augustus S. Anderson, Jr., Raleigh, for third party plaintiff-appellant Tillie Joyner.

Ellis Nassif, Raleigh, for third party defendant-appellee Town of Wake Forest.

PHILLIPS, Judge.

We think that the trial court's dismissal of this action was proper for several reasons: Tillie Joyner had no legal authority to attack the zoning ordinance, and in undertaking to attack it she did not follow the established procedure for doing so. Although neither party has provided us with the review provisions of the Wake Forest Zoning Ordinance, we assume that they conform to the statutes that apply to all municipalities in this state. These statutes provide that "[a]n appeal may be taken by any person aggrieved" from any decision of a zoning officer to the town's Zoning Board of Adjustment, G.S. 160A-388(b), and that an appeal of zoning board decisions may be taken to the Superior Court "by proceedings in the nature of certiorari." G.S. 160A-388(e).

An "aggrieved" person in a zoning proceeding, so our courts have held on more than one occasion, must own the affected property or have some interest in it. See Pigford v. Board of Adjustment (Kinston), 49 N.C.App. 181, 270 S.E.2d 535 (1980), rev. denied and appeal dismissed, 301 N.C. 722, 274 S.E.2d 230 (1981) and the cases cited therein. Ms. Joyner contends on appeal that developments in our case law have expanded the concept of property and that lessees under a month to month lease have a sufficient property interest in their rental premises to give them standing to challenge the validity of a zoning ordinance or to contest its application where it affects property that they rent. Without adopting or rejecting this premise as a statement of law, we do not find it applicable here. Ms. Joyner was the estranged wife of a month to month tenant whose lease had been lawfully terminated. She had no interest in the property sufficient under our law to allow her to challenge either her eviction from the property or the application of the zoning ordinance to it. The cases cited by Ms. Joyner, while they may well support her statement of the law, have no application to this case. State v. Joyner, 286 N.C. 366, 211 S.E.2d 320, appeal dismissed, 422 U.S. 1002, 95 S.Ct. 2618, 45 L.Ed.2d 666 (1975), involved a challenge to a zoning ordinance by a tenant under a written lease for a term of years, not a monthly tenancy or a tenancy at will. Cumberland County v. Eastern Federal Corp., 48 N.C.App. 518, 269 S.E.2d 672, rev. denied, 301 N.C. 527, 273 S.E.2d 453 (1980), involved a challenge to a sign ordinance by the owner of a regulated billboard, not a lessee. And neither Jones v. Neisler, 228 N.C. 444, 45 S.E.2d 369 (1947) nor Kent v. Humphries, 50 N.C.App. 580, 275 S.E.2d 176, modified and aff'd, 303 N.C. 675, 281 S.E.2d 43 (1981) involved challenges to zoning ordinances. No decision authorizing a former lessee to challenge the application of a zoning ordinance that indirectly forced the lessor to terminate the lease has been either called to our attention or found in our research.

Since plaintiff's complaint neither alleged that she owned the property affected nor had an interest therein to support her challenge, her complaint was clearly dismissable for a lack of standing to sue under the provisions of Rule 12(b)(6) of the N.C. Rules of Civil Procedure. But even if it could be said that Ms. Joyner had a sufficient property interest to sustain her complaint, its dismissal by the District Court was nevertheless required. As already noted, the statutory procedure for challenging the validity of a zoning ordinance is to petition the Superior Court for certiorari to review the final decision of the Board of Adjustment. City of Elizabeth City v. LFM Enterprises, Inc., 48 N.C. App. 408, 269 S.E.2d 260 (1980). A zoning ordinance may not be collaterally attacked by a party that failed to avail herself of the judicial review that the ordinance and statutes authorize. Ms. Joyner's third party complaint is not a petition for certiorari, and there is no indication that she has ever sought to have the decision of the Wake Forest Board of Adjustment reviewed by any court.

The order appealed from is

Affirmed.

WHICHARD and JOHNSON, JJ., concur.