The Cherry Cmty. Org. v. The City of CharlotteÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1292
Filed: 6 February 2018
Mecklenburg County, No. 2015-CVS-20180
THE CHERRY COMMUNITY ORGANIZATION, Plaintiff,
v.
THE CITY OF CHARLOTTE, THE CITY COUNCIL FOR THE CITY OF
CHARLOTTE, and MIDTOWN AREA PARTNERS II, LLC, Defendants.
Appeal by plaintiff from order entered 15 August 2016 by Judge Daniel A.
Kuehnert in Mecklenburg County Superior Court. Heard in the Court of Appeals 17
May 2017.
James, McElroy & Diehl, P.A., by Jon P. Carroll, John R. Buric, and Preston
O. Odom, III, for Plaintiff-Appellant.
Charlotte City Attorney’s Office, by Senior Assistant City Attorney Terrie
Hagler-Gray and Assistant City Attorney Daniel E. Peterson for Defendants-
Appellees City of Charlotte and City Council for the City of Charlotte.
K&L Gates LLP, by Roy H. Michaux, Jr., for Defendant-Appellee Midtown Area
Partners II, LLC.
MURPHY, Judge.
The Cherry Community Organization (“CCO”) appeals from the trial court’s
order granting the City of Charlotte and the City Council’s (collectively, “Charlotte”)
Motion for Summary Judgment, granting Midtown Area Partners II, LLC’s (“MAP”)
Motion for Summary Judgment, and denying CCO’s Motion for Summary Judgment.
CHERRY CMTY. ORG. V. CITY OF CHARLOTTE
Opinion of the Court
Specifically, CCO maintains: (1) Charlotte’s approval of an oral amendment made to
MAP’s rezoning petition violated its ordinance and was arbitrary and capricious; and
(2) Charlotte’s violation of city ordinances and N.C.G.S. § 160A-383 (2017) renders
the zoning amendment null and void. However, because we conclude that CCO failed
to show it had standing to maintain its declaratory judgment action, we dismiss this
appeal and need not reach the issues raised by CCO.
Background
CCO is a nonprofit organization that endeavors to protect the residential
character, safety, and stability of, as well as the affordable housing within, the Cherry
Community (“Cherry”) – a historically African American neighborhood located in the
Midtown Morehead Cherry District of Charlotte. In 1999 and 2012, respectively,
Charlotte adopted the Cherry Small Area Plan and the Midtown Morehead Cherry
Area Plan (the “MMC Area Plan”) to guide land-use decisions in Cherry.
The real property (the “Parcels”) at issue in this case involves four parcels
owned by MAP in and around Cherry.1 In August 2014, MAP submitted an
application to Charlotte (“Initial Rezoning Petition”) to rezone the Parcels from
general-use districts to mixed-use development districts in furtherance of plans to
1 Previously, three of the parcels were owned by StoneHunt. MAP and StoneHunt, LLC
entered into a Joint Venture Agreement to develop their adjacent properties in a mixed-use
development, with MAP holding a majority interest in the Joint Venture. Charlotte and MAP’s brief
notes that, since that time, “StoneHunt, LLC conveyed its three parcels to [MAP] on February 6, 2017
and MAP is authorized to pursue the development of the [Parcels].”
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CHERRY CMTY. ORG. V. CITY OF CHARLOTTE
Opinion of the Court
construct a mixed-use development, which was to contain office, retail, hotel, and
residential spaces. Specifically, MAP proposed constructing a 270,000 square foot
building, 187,450 square foot parking structure, and 8 single-family attached
dwelling units. The building’s then-proposed height was 119 feet.
Two community meetings were held to discuss the nature of the proposed
rezoning, and CCO filed a Protest Rezoning Petition urging Charlotte to deny MAP’s
Initial Rezoning Petition.2 MAP thereafter submitted an Amended Rezoning
Application (the “First Amended Petition”) in which it increased the size of the
rezoning site from 1.698 to 1.99 acres and requested that MAP be given five-year
vested rights regarding its rezoning site plan.
On 12 February 2015, MAP submitted a Second Amended Rezoning
Application, which changed the requested zoning of the Parcels “to B-2 (PED-O), UR-
C (PED-O) and R-8 MF (PED-O),” with five-year vested rights. On the basis of the
amendment, a new community meeting was held on 4 March 2015. It is this Second
Amended Petition (the “Rezoning Petition”) that is at issue in this case.
Charlotte held a public hearing on the Rezoning Petition on 20 April 2015.
Representatives of MAP and CCO attended and commented on the Rezoning Petition.
Charlotte’s Planning Department staff also commented that: (1) MAP’s proposed
development was inconsistent with the Pedestrian Zoning Overlay District (“PED
2 CCO owns one property across from the MAP Project. The area of the MAP Project
immediately across from that property is designated for eight townhomes.
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CHERRY CMTY. ORG. V. CITY OF CHARLOTTE
Opinion of the Court
Overlay”) requirements that limit buildings in the area to a maximum height of 100
feet; (2) the proposed development was inconsistent with the MMC Area Plan
recommendations relating to the maximum permissible building height, street
setbacks, streetscapes, and residential density; and (3) the proposed parking
structure would encroach on a portion of the area that the MMC Area Plan
recommended for residential development.
By the time the Rezoning Petition came on for a vote before Charlotte at its
meeting, MAP lowered the projected height of its building from 119 feet to 106 feet,
which was still 6 feet over the maximum height permitted by the PED Overlay. The
motion to approve the Rezoning Petition failed.
Several hours later, prior to adjourning the meeting, MAP agreed to bring the
building’s height down to a compliant 100 feet. Accordingly, Charlotte passed a
motion to “reconsider” the Rezoning Petition as orally amended at the next scheduled
meeting. At the next meeting on 28 September 2015, Charlotte voted 10-to-1 against
sending the orally amended Rezoning Petition back to the Zoning Committee for a
recommendation, and 10-to-1 in favor of rezoning the Parcels as outlined.
CCO petitioned the Mecklenburg County Superior Court for Writ of Certiorari
and later added a claim for declaratory judgment against Charlotte and MAP. After
the trial court dismissed CCO’s certiorari petition, all parties moved for summary
judgment on CCO’s declaratory judgment claim. On 15 August 2016, the trial court
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CHERRY CMTY. ORG. V. CITY OF CHARLOTTE
Opinion of the Court
granted summary judgment in favor of Charlotte and MAP and dismissed the case
with prejudice. CCO timely appealed.
Standing
Typically, landowners may use their property as they wish, free from the
interference of the government. However, our Supreme Court has held that lawful
zoning ordinances are an exercise of the State’s police powers. See, e.g., Turner v.
City of New Bern, 187 N.C. 541, 549, 122 S.E. 469, 474 (1924). The interference by
the State, by exercising its police powers, is the pinnacle of intrusion on private
property rights by the government. Accordingly, our Courts appropriately have set a
high bar for third parties to establish standing to bring actions relating to the exercise
of police powers between the State and its citizens. CCO does not clear the bar to
allow it to privately exercise Charlotte’s police power over MAP.
As a preliminary matter, we must address Charlotte and MAP’s assertion that
CCO lacks standing to prosecute this declaratory judgment action. Already, LLC v.
Nike, Inc., 568 U.S. 85, 90-91, 184 L. Ed. 2d 533, ___ (2013) (“We have repeatedly held
that an actual controversy must exist not only at the time the complaint is filed, but
through all stages of the litigation.” (citation and internal quotation marks omitted));
see Burgess v. Gibbs, 262 N.C. 462, 465, 137 S.E.2d 806, 808 (1964) (“A universal
principle as old as the law is that the proceedings of a court without jurisdiction of
the subject matter are a nullity.”). Standing must be maintained throughout the
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CHERRY CMTY. ORG. V. CITY OF CHARLOTTE
Opinion of the Court
entirety of the suit. Charlotte and MAP contend that CCO has not forecasted
evidence that it sustained special damages as a result of the rezoning at issue that
are distinct from the rest of the community.3 We agree and therefore modify and
affirm the decision of the trial court to dismiss CCO’s claims and, as a result, we need
not reach the merits of CCO’s appeal.
Standing refers to “[w]hether a party has a sufficient stake in an otherwise
justiciable controversy” so as to properly seek adjudication of a matter, Sierra Club
v. Morton, 405 U.S. 727, 731-32, 31 L. Ed. 2d 636, 641 (1972), and it “is a necessary
prerequisite to a court’s proper exercise of subject matter jurisdiction.” Thrash Ltd.
P’ship v. Cty. of Buncombe, 195 N.C. App. 678, 680, 673 S.E.2d 706, 708 (2009)
(citation omitted). As standing is a question of law, we review the issue of standing
de novo, Cherry v. Wiesner, ___ N.C. App. ___, ___, 781 S.E.2d 871, 876, disc. review
denied, 369 N.C. 33, 792 S.E.2d 779 (2016), and the party invoking jurisdiction, in
this case CCO, bears the burden of establishing standing. Thrash Ltd. P’ship, 195
N.C. App. at 680, 673 S.E.2d at 708.
Specifically, “[s]ince standing is a jurisdictional requirement, the party seeking
to bring [a] claim before the court must include allegations which demonstrate why
she has standing in the particular case[.]” Wiesner, ___ N.C. App. at ___, 781 S.E.2d
3 Charlotte and MAP also argue on appeal that CCO failed to properly elect its Board of
Directors in accordance with its bylaws, and, therefore, the Board of Directors could not have properly
authorized this litigation. We need not reach this contention, however, as we resolve this issue on the
basis of insufficient evidence of special damages.
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CHERRY CMTY. ORG. V. CITY OF CHARLOTTE
Opinion of the Court
at 877. In establishing the elements of standing, “each element must be supported
in the same way as any other matter on which [CCO] bears the burden of proof, i.e.,
with the manner and degree of evidence required at the successive stages of the
litigation.” Id. at ___, 781 S.E.2d at 877 (quotation omitted) (emphasis added).
A party only has standing to challenge a zoning ordinance in an action for
declaratory judgment when it “has a specific personal and legal interest in the subject
matter affected by the zoning ordinance and . . . is directly and adversely affected
thereby.” Taylor v. City of Raleigh, 290 N.C. 608, 620, 227 S.E.2d 576, 583 (1976)
(citations omitted). In this way, the standing requirement for an action for
declaratory judgment is analogous to the requirement that a party seeking review of
a municipal decision by writ of certiorari suffer damages that are “distinct from the
rest of the community.” Compare Heery v. Zoning Bd. of Adjustment, 61 N.C. App.
612, 614, 300 S.E.2d 869, 870 (1983) (holding that petitioners failed to allege that
they would be subject to special damages distinct from the rest of the community),
with Wiesner, ___ N.C. App. at ___, 781 S.E.2d at 880 (holding that allegations that
fail to demonstrate special damages distinct to respondent and instead reference
generalized damage to the overall neighborhood are insufficient to establish a party
has standing to sue).
Although owning property immediately adjacent to or within close proximity
of the subject property is not in and of itself sufficient to plead special damages, “it
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CHERRY CMTY. ORG. V. CITY OF CHARLOTTE
Opinion of the Court
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.”
Mangum v. Raleigh Bd. of Adjustment, 362 N.C. 640, 644, 669 S.E.2d 279, 283 (2008);
see also Village Creek Property Owners’ Ass’n, Inc. v. Town of Edenton, 135 N.C. App.
482, 486, 520 S.E.2d 793, 796 (1999) (citing Godfrey v. Zoning Bd. of Adjustment of
Union County, 317 N.C. 51, 66, 344 S.E.2d 272, 281 (1986), for the proposition that
“owners of property in the adjoining area affected by [an] ordinance[ ] are parties in
interest entitled to maintain [a declaratory judgment] action” (citation and internal
quotation marks omitted)).
Specifically, this Court has recognized 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 traffic congestion and increase the
noise level.” Wiesner, ___ N.C. App. at ___, 781 S.E.2d at 877 (quotation omitted).
Further, the owner of property has standing to maintain a legal action to prevent a
proposed use of nearby or adjacent property where he will suffer a reduction in the
value of his property pursuant to a proposed use that is prohibited by a valid zoning
ordinance. Jackson v. Guilford Cty. Bd. of Adjustment, 275 N.C. 155, 161, 166 S.E.2d
78, 82 (1969).
“Once the petitioner’s aggrieved status is properly put in issue, the trial court
must then, based on the evidence presented, determine whether an injury has resulted
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CHERRY CMTY. ORG. V. CITY OF CHARLOTTE
Opinion of the Court
or will result from the zoning action.” Wiesner, ___ N.C. App. at ___, 781 S.E.2d at
877 (quoting Kentallen, Inc. v. Town of Hillsborough, 110 N.C. App. 767, 770, 431
S.E.2d 231, 232 (1993) (citations, quotation marks, and brackets omitted)) (emphasis
added).
In the instant case, CCO pleaded in its complaint that it:
is an aggrieved party who owns real property immediately
adjacent to and/or in close proximity with the subject
property, and will suffer special damages in the form of
increased noise, traffic and parking, decreased visibility
due to the height of the proposed project, diminution in the
peaceful residen[tial] character of the Cherry
neighborhood, and a reduction in the value of [CCO’s] real
property if MAP is allowed to proceed as approved by the
City Council. Accordingly, [CCO’s] damages are distinct
from the community at large.
In comparing CCO’s pleadings with the guidelines embraced by Wiesner, it is
clear that CCO met the minimum pleading requirements of standing to survive a
motion to dismiss in accordance with Rule 12(b)(6) of the North Carolina Rules of
Civil Procedure in generally alleging special damages. However, the evidence
submitted before the Superior Court is insufficient to show that CCO has or will
suffer any individual harm as a result of the rezoning such that CCO is entitled to
survive Charlotte’s and MAP’s motion for summary judgment. See Wiesner, ___ N.C.
App. at ___, 781 S.E.2d at 877 (holding that the plaintiff must establish each element
“with the manner and degree of evidence required at the successive stages of the
litigation” (emphasis added)).
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CHERRY CMTY. ORG. V. CITY OF CHARLOTTE
Opinion of the Court
In its brief, CCO submits that it proffered evidence of the specific harm it will
suffer due to its proximity to the rezoned property. To support its contention, CCO
refers this Court to the following record evidence of special harm: (1) the pleading
quoted above; (2) page 167 of the record, wherein Dr. Bittle-Patton was speaking at
the required public hearing before the City Council on the Rezoning Petition; (3)
pages 98-100 of the transcript, which record CCO’s argument at the summary
judgment hearing pertaining to the issue of standing; and (4) document exhibit pages
5, 16, 32, and 40. However, a close inspection of these materials reveals that they are
utterly devoid of any actual proof of special damages. We address each in turn.
First, although relevant to surviving a motion to dismiss, CCO’s pleading does
not evince that a harm will result from the rezoning. See N.C. R. Civ. P. 56(e) (“When
a motion for summary judgment is made and supported as provided in this rule, an
adverse party may not rest upon the mere allegations or denials of his pleading, but
his response, by affidavits or as otherwise provided in this rule, must set forth specific
facts showing that there is a genuine issue for trial.” (emphasis added))
Furthermore, to the extent that CCO asserts in its complaint that it will suffer
a reduction in the value of the property, which would be adequate to establish
standing according to Jackson v. Guilford County Board of Adjustment, it has failed
to provide the trial court or this Court with any evidence in support of that assertion.
In fact, Dr. Sylvia Bittle-Patton, designated CCO’s 30(b)(6) representative, testified
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CHERRY CMTY. ORG. V. CITY OF CHARLOTTE
Opinion of the Court
during her deposition that “I don’t say we would lose tenants because of the [MAP
Project] because people need affordable housing. And that’s scarce in the city.”
Therefore, by CCO’s own admission, it would not lose any tenants as a result of the
MAP Project. Accordingly, we cannot conclude CCO has standing on this basis.
Second, Dr. Bittle-Patton’s criticisms at the public hearing prior to Charlotte’s
meetings were limited to concerns about the height of the proposed building – then a
projected 119 feet – as it surpassed the 100 foot height allowed by the PED overlay.
That concern was rectified by lowering the proposed height of the building to a
compliant 100 feet. Dr. Bittle-Patton at no point alleged that the rezoning risked
increased noise, traffic, or parking. Therefore, Dr. Bittle-Patton’s comments are not
evidence of any special harm that CCO stands to suffer from the rezoning.
Third, in regard to its oral argument before the trial court, CCO specifically
stated:
Our folks have a piece of property that they own that is
right next to the subdivision. So I think that they have
satisfied the requirements of being an aggrieved party, an
affected party that has standing to bring this claim. So I
think that for those reasons that we've got the standing
that we need to be here.
This assertion is also insufficient to prove that harm will ensue from rezoning
because, as we already explained, owning property immediately adjacent to or in the
vicinity of the subject property is inadequate in and of itself to establish special
damages and, in turn, standing.
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CHERRY CMTY. ORG. V. CITY OF CHARLOTTE
Opinion of the Court
Finally, CCO points us towards pages 5, 16, 32 and 40 of the Documentary
Exhibits. Page 5 of the Exhibits contains Dr. Bittle-Patton’s testimony that “[CCO]
absolutely [is]” impacted by the rezoning more than anyone else. Pages 16 and 32
contain testimony by Dr. Biddle-Patton describing the height of the Korean Herald
building. Page 40 shows, as noted above, that Dr. Bittle-Patton testified on behalf of
CCO as its 30(b)(6) representative.
CCO points to Sanchez v. Town of Beaufort, 211 N.C. App. 574, 710 S.E.2d 350
(2011), as precedent that adjacent-owner status, combined with loss of view and
associated diminution in property value are enough to confer standing to challenge a
land use decision. However, CCO misinterprets our holding in Sanchez as, in that
case, we were dealing with a diminution of property value due to a loss of a historic
waterfront view. Id. at 579, 710 S.E.2d at 353-54. Even considering the record in the
light most favorable to CCO, it has forecasted no evidence of special damages due to
diminution in the value of their property. The loss of the waterfront view in Sanchez
was a portion of the loss in their land value, not a separate element on its own. CCO,
on the other hand, points us to a change in its skyline view and presented no evidence
of a loss in value. Simply stated, CCO’s forecast of evidence of special damages
consists of nothing more than conclusory, unsupported allegations that certain
damages will ensue coupled with evidence that, at one point, the proposed
development plan included a building that was taller than that which is permitted in
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CHERRY CMTY. ORG. V. CITY OF CHARLOTTE
Opinion of the Court
the area. The latter point was rendered moot prior to CCO filing its complaint by
MAP’s decision to lower the height of its development to a compliant 100 feet.
Therefore, CCO has failed to point us to any record evidence to meet its burden
of production at summary judgment that CCO will suffer special damages distinct
from the rest of the community by rezoning, nor can we find any. Accordingly, we
conclude that CCO has failed to establish it has standing to maintain its action for
declaratory judgment.
We do not reach CCO’s remaining contentions as it has not shown it has
standing to raise them. See, e.g., Bigger v. Arnold, 221 N.C. App. 662, 665, 728 S.E.2d
437, 439 (2012) (“Plaintiff lacks standing to appeal because he is not a party aggrieved
by the trial court’s order. Accordingly, we do not reach the other issues in the case.”);
Estate of Apple ex rel. Apple v. Commercial Courier Exp., Inc., 168 N.C. App. 175, 180-
181, 607 S.E.2d 14, 18 (2005) (“Finally, as we have concluded plaintiff does not have
standing to contest the compromise and settlement agreement between defendants
and the medical provider, we do not reach the issue of whether the Commission had
to approve the settlement agreement under the facts of this case.”); Matter of Ezzell,
113 N.C. App. 388, 392, 438 S.E.2d 482, 484 (1994) (“Although Ezzell's argument may
have merit, we do not reach the issue he attempts to raise because he does not have
standing to raise the issue.”); Boone v. Boone, 27 N.C. App. 153, 154, 218 S.E.2d 221,
222-23 (1975) (“We do not reach the questions raised by the assignments of error for
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CHERRY CMTY. ORG. V. CITY OF CHARLOTTE
Opinion of the Court
the reason that defendant has no standing to raise the questions.”) Therefore, we
decline to reach the merits of CCO’s appeal, and we dismiss this appeal for lack of
subject matter jurisdiction.
Conclusion
For the foregoing reasons, we conclude that CCO lacks standing to prosecute
its action for declaratory judgment. Accordingly, we modify and affirm the trial
court’s dismissal of CCO’s claims.
MODIFIED AND AFFIRMED.
Judge DAVIS concurs in the result only.
Judge HUNTER, JR. concurs in separate opinion.
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No. COA16-1292 – Cherry Cmty. Org. v. City of Charlotte
HUNTER, JR., Robert N., concurring in a separate opinion.
I write separately to concur in the result only.
Generally, the North Carolina Constitution grants standing to anyone who
suffers 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 . . . .”
Mangum v. Raleigh Bd. of Adjust., 362 N.C. 640, 642, 669 S.E.2d 279, 281-82 (2008)
(quoting 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.
Id. at 642, 669 S.E.2d at 282 (quoting Stanley v. Dep’t of Conservation & Dev., 284
N.C. 15, 28, 199 S.E.2d 641, 650 (1973)) (internal quotation marks omitted).
“[S]tanding relates not to the power of the court but to the right of the party to have
the court adjudicate a particular dispute.” Cherry v. Wiesner, ___ N.C. App. ___, ___,
781 S.E.2d 871, 876 (2016). “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 at 642-43, 669 S.E.2d at 282 (quoting River Birch
Assocs. v. City of Raleigh, 326 N.C. 100, 129, 388 S.E.2d 538, 555 (1990).
Here, the CCO filed an action seeking a “declaration pursuant to Rule 57 of the
CHERRY CMTY. ORG. V. CITY OF CHARLOTTE
HUNTER, JR., Robert N., J., concurring
North Carolina Rules of Civil Procedure and the North Carolina Declaratory
Judgment Act, N.C. Gen. Stat. § 1-253, et seq., that the rezoning effectuated through
the granting of the Rezoning Petition is invalid and unenforceable as an arbitrary
and capricious act.” The CCO also contends it has standing to bring this action
pursuant to N.C. Gen. Stat. § 160A-393.
N.C. Gen. Stat. § 160A-393 (2016) provides:
(d) Standing. – A petition may be filed under this section
only by a petitioner who has standing to challenge the
decision being appealed. The following persons shall have
standing to file a petition under this section:
....
(2) Any other person who will suffer special damages
as the result of the decision being appealed.
It is necessary for a party to include allegations demonstrating why that party
has standing in a particular case:
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.
Weisner at ___, 781 S.E.2d 871, 877 (quoting Neuse River Found., Inc. v. Smithfield
Foods, Inc., 155 N.C. App. 110, 113, 574 S.E.2d 48, 51 (2002)).
The CCO alleged:
Petitioner is an aggrieved party who owns real property
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CHERRY CMTY. ORG. V. CITY OF CHARLOTTE
HUNTER, JR., Robert N., J., concurring
immediately adjacent to, or in close proximity to the subject
property, and will suffer special damages in the form of
increased noise, traffic and parking, decreased visibility
due to the height of the proposed buildings, diminution in
the peaceful residential character of the Cherry
neighborhood, and a reduction in the value of Petitioner’s
real property if MAP is allowed to proceed as approved by
the City Council. Accordingly, Petitioner’s damages are
distinct from the community at large.
Here, the CCO has alleged sufficient facts to assert standing to challenge the zoning
amendment because it owns property immediately adjacent to the rezoned property
and can potentially be adversely affected by the zoning amendment.
However, the CCO lost the summary judgment hearing because it failed to
forecast competent evidence sufficient to support special damages, not because the
CCO does not meet the status of an aggrieved party under the standing doctrine.
This is clearly a justiciable issue capable of resolution by our Courts, and the CCO,
in my opinion has only lost at the summary judgment level because of its failure to
forecast evidence tending to show specifically how it will suffer harm by the
Defendants in this case. Uncontroverted opinion is no longer sufficient evidence in
North Carolina. United Community Bank (Georgia) v. Wolfe, ___ N.C. ___, ___, 799
S.E.2d 269, 272 (2017).
Furthermore, under N.C. Gen. Stat. § 1-257 (2016), a trial court may “refuse
to render or enter a declaratory judgment or decree where such judgment or decree,
if rendered or entered, would not terminate the uncertainty or controversy giving rise
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CHERRY CMTY. ORG. V. CITY OF CHARLOTTE
HUNTER, JR., Robert N., J., concurring
to the proceeding[.]” See Farber v. N.C. Psychology Bd., 153 N.C. App. 1, 569 S.E.2d
287, cert. denied, 356 N.C. 612, 574 S.E.2d 679 (2002) (holding the trial court did not
abuse its discretion in refusing to issue a declaratory judgment regarding the
constitutionality of G.S. § 90-270.15(a)(10) where it decided further grounds for relief
were unnecessary and would serve no useful purpose). Here, the trial court found
“the City complied with all the law, with the Ordinances, their own law, the State
law . . . and with the City Council’s own procedures.” The trial court further
reasoned “I don’t see how a different result could possibly have taken place had the
thing gone back to the Planning Board and an additional 30 days been given.”
From these facts I conclude the trial court did not abuse its discretion in this
case.
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