Opinion
No. COA07-526.
Filed February 19, 2008.
Union County No. 06 CVS 2024.
Appeal by petitioners and cross-appeal by intervenor-respondent from order dated 16 January 2007 by Judge James E. Lanning in Union County Superior Court. Heard in the Court of Appeals 14 November 2007.
Smith Moore LLP, by Thomas E. Terrell, Jr. and Travis W. Martin, for petitioner-appellants, cross-appellees. Law Offices of John T. Burns, by John T. Burns, for respondent-appellee. Parker, Poe, Adams Bernstein, L.L.P., by W. Edward Poe, Jr., Lori R. Keeton and Benjamin Sullivan, for intervenor-respondent-appellees, cross-appellants.
Daniel and Jill Healy and Stonegate Homeowners Association (collectively petitioners) appeal the 16 January 2007 superior court order affirming the Union County Board of Adjustment's(respondent Board's) decision to affirm the Union County Land Administrator's (Administrator's) issuance of a zoning permit to Union Electric Membership Corporation (intervenor-respondent Union Power). For the reasons stated herein, we vacate the decision of the superior court and remand with specific instructions.
Petitioner Daniel Healy is a developer and builder of upscale residential homes. In 2005, the Healys purchased an 11-acre tract on which Mr. Healy was in the approval stages of developing ten lots and building on those lots homes ranging in price from $850,000 to $1.3 million. The Healys' property is contiguous to a 3.854 acre tract on Will Plyler Road where intervenor-respondent Union Power proposed in 2006 to build an electrical substation 184 feet wide and up to sixty feet tall. Petitioner Stonegate Homeowners Association represents the Stonegate Subdivision which is comprised of 262 homes, all of which were built within the last six years. The homes in the subdivision average more than 3,100 square feet, and the median value for homes in the subdivision is $269,000.
On 4 May 2006, intervenor-respondent Union Power applied to the Union County Land Administrator for a zoning permit to construct the electrical substation on the Union County site. The Administrator made findings and issued the permit on 9 May 2006. Thereafter, petitioners appealed the Administrator's decision to the respondent Union County Board of Adjustment. Petitioner's contended that the proposed substation failed to meet the requirements of Union County Land Use Ordinance § 177 and was unlawfully issued. On 7 August 2006, in a quasijudicial hearing, the Board of Adjustment heard and subsequently voted to deny petitioners' appeal and to uphold the Administrator's decision. The Board concluded that petitioners "lacked standing to appeal the Permit."
On 5 September 2006, petitioners filed a petition for complaint and writ of certiorari in Union County Superior Court which challenged the Board's decision. Petitioners alleged (1) the Board's approval of the zoning permit was not based upon competent, material, and substantial evidence in the whole record; (2) the Board's decision was arbitrary and capricious; and (3) the Zoning Administrator was unlawfully delegated the power to make subjective findings without the due process safeguards of quasijudicial proceedings. On 26 October 2006, Union County Superior Court granted the petition for writ of certiorari, and on 14 November 2006, Union Power intervened in the action as an intervenor-respondent. On 16 January 2007, the superior court, after review of the record created during the Union County Board of Adjustment's quasijudicial hearing, affirmed the decision of the Board. Petitioners appeal; intervenor-respondent cross-appeals.
Petitioners argue the superior court erred in affirming Union County Board of Adjustment's decision to uphold the issuance of a zoning permit because: (I) there was a lack of competent, material and substantial evidence; and (II) such decision was arbitrary and capricious. Intervenor-respondent Union Power cross-appeals arguing the superior court erred in determining petitioners (I) properly noticed the appeal from the Board of Adjustment and (II) had the requisite standing to appeal the Board of Adjustment's decision to grant respondents a zoning permit.
The dispositive issue is whether petitioners had the requisite standing to sue. Union Power argues petitioners lacked standing to appeal the decision to grant a zoning permit because petitioners did not plead specific damages and are therefore not an aggrieved party. We agree.
North Carolina General Statute § 160A-388 allows cities and towns to appoint Boards of Adjustment for the purpose of hearing and deciding appeals from decisions of officials charged with the regulation of planning and development, including zoning. N.C.G.S. § 160A-388(b) (2007). "Every decision of the board shall be subject to review by the superior court by proceedings in the nature of certiorari." N.C.G.S. § 160A-388(e2) (2007). But, only aggrieved parties have standing to seek such review. Allen v. City of Burlington Bd. of Adjustment, 100 N.C. App. 615, 618, 397 S.E.2d 657, 659 (1990).
An aggrieved party has standing if it has a specific legal interest that is directly and uniquely affected. State Employees Ass'n of N.C., Inc. v. State, 154 N.C. App. 207, 573 S.E.2d 525 (2002). Petitioners must allege the "manner in which the value or enjoyment of [petitioner's] land has been or will be adversely affected." Casper v. Chatham County, ___ N.C. App. ___, ___, 651 S.E.2d 299, 302 (2007). "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. However, the mere averment that petitioners['] own land in the immediate vicinity of the property for which the special use permit is sought, absent any allegation of special damages . . . in their Petition, is insufficient to confer standing upon them." Id. at ___, 651 S.E.2d at 302 (citations and quotations omitted). See Sarda v. Durham Bd. of Adjustment, 156 N.C. App. 213, 575 S.E.2d 829 (2003) (where adjoining neighbors, seeking to enjoin a property owner with a special use permit from operating a paintball playing field, failed to establish special damages distinct from the rest of the community the neighbors lacked standing). General allegations of speculative damages are without more insufficient to confer standing. See Kentallen, Inc. v. Hillsborough, 110 N.C. App. 767, 770, 431 S.E.2d 231, 233 (1993).
In the instant case, petitioners allege that as adjoining landowners to the proposed electric substation their property values will be directly harmed. Petitioner's allege that "[t]he proposed electric utility substation . . . will further disturb [petitioners'] quiet enjoyment and use of their properties. Because of these damages and injuries to [petitioners'] property values and rights of quiet enjoyment, [petitioners] will suffer special damages distinct from the broader community." However, these allegations do not satisfy the pleading requirement of special damages distinct from the rest of the community resulting in a reduction of the value of their property.
The president of petitioner Stonegate Homeowners Association testified the substation would have "an ongoing negative impact on the character" of its homes because of the "unsightly power lines running" to and from the substation. Petitioner Daniel Healy testified that "it's kind of obvious . . . in a common sense way" what the location of the proposed substation would "do to an $850,000 [to] $1.3 million home." These allegations are much too general to support a finding that petitioners will or have suffered any pecuniary loss to their property due to the issuance of the zoning permit. See, e.g., Kentallen, 110 N.C. App. at 770, 431 S.E.2d at 233 ("evidence presented before the Board, that the requested construction would increase `the negative impact' on the petitioner's property and `would not be visually attractive,' is much too general"); see generally Casper, ___ N.C. App. ___, 651 S.E.2d 299 (2007) (holding the trial court properly found petitioners lacked standing to challenge a zoning permit where no special damages were averred); see also Mangum v. Raleigh Bd. of Adjus. ___ N.C. App ___, 652 S.E.2d 731 (2007) (testimony as to traffic, water concerns and safety concerns, but no testimony as to how value of property would decrease as a result of use, insufficient to support a finding of standing).
We hold the Superior Court erred in granting certiorari as petitioners had no standing to appeal. The Union County Board of Adjustment properly concluded as follows: [Petitioners] failed to demonstrate that they have suffered or will suffer any special damages, distinct from any damages suffered by the community at large, from the issuance of the Permit. They therefore were not `aggrieved' by the issuance of the Permit as required by Section 91(a) of the Ordinance, and they lacked standing to appeal the Permit.
Accordingly, the decision of the Superior Court is vacated and remanded to the trial court for entry of an order (1) dismissing the complaint and petition for a writ of certiorari filed 5 September 2006; (2) vacating the writ of certiorari granted 26 October 2006; and (3) reinstating the issuance of the zoning permit affirmed by the Board of Adjustment.
Vacated and remanded.
Judges McGEE and GEER concur.
Report per Rule 30(e).