Opinion
No. 05-1478-2.
Filed November 6, 2007.
New Hanover County No. 05 CVS 0210.
On remand from the Supreme Court for reconsideration after State v. Hart, 361 N.C. 309, 644 S.E.2d 201 (2007), Walsh v. Town of Wrightsville Beach Bd. of Alderman, 361 N.C. 348, 644 S.E.2d 224 (2007), filed on 4 May 2007, reversed and remanded Walsh v. Town of Wrightsville Beach Bd. of Alderman, 179 N.C. App. 97, 632 S.E.2d 271 (2006). Petitioner initially appealed Judge Benjamin G. Alford's order entered 29 August 2005 in New Hanover County Superior Court. Originally heard in the Court of Appeals 17 May 2006; reconsidered by the Court of Appeals on 23 October 2007.
Carolina Legal Counsel, by J. Wesley Casteen, for petitioner-appellant. Murchison, Taylor Gibson, PLLC, by Michael Murchison and Wessell Rainey, LLP, by John C. Wessell, III, for respondents-appellees.
This case comes before us on remand from the North Carolina Supreme Court for reconsideration after the decision in State v. Hart, 361 N.C. 309, 644 S.E.2d 201 (2007). Joseph T. Walsh ("petitioner") appeals the order dismissing his petition for writ of certiorari for a lack of standing and lack of subject matter jurisdiction. We affirm.
Petitioner owns real property located at 308 Coral Drive in Wrightsville Beach, North Carolina. Charles W. Smith, III, and his wife, Constance C. Smith (collectively, "respondents"), own property formerly owned by petitioner ("the Smith property") and lying adjacent to petitioner's current property. In July 2003, respondents contacted the Wrightsville Beach Development Code Administrator ("the Administrator") to determine whether the lots they owned constituted two buildable lots. On 1 August 2003, the Administrator determined the Smith property constituted two buildable lots.
Although the Town of Wrightsville Beach Board of Alderman acting as a Board of Adjustment is also named as a respondent, for the purposes of this opinion we use "respondents" to refer only to Charles W. Smith, III and his wife Constance C. Smith.
On 4 April 2004, respondents applied for building permits to construct two single family beach cottages on the Smith property. On 6 July 2004, the Town of Wrightsville Beach ("the Town") issued building permits to respondents. On 29 July 2004, petitioner appealed the Administrator's determination to the Wrightsville Beach Board of Aldermen sitting as a Board of Adjustment ("the Board"). Subsequently, the Board entered an order denying petitioner's appeal. On 20 January 2005, petitioner filed a petition for writ of certiorari pursuant to N.C. Gen. Stat. § 160A-388(e) to review the Board's denial of his appeal. In his petition for writ of certiorari, petitioner alleged, in pertinent part, that he was an aggrieved party because the construction of two beach cottages on the Smith property would be "unreasonably close to [his] property line" and "would be inconsistent with present uses in the area." On 25 May 2005, respondents filed a motion to dismiss the petition. On 24 August 2005, Superior Court Judge Benjamin G. Alford granted respondents' motion to dismiss for a lack of standing and lack of subject matter jurisdiction. Petitioner appeals.
Petitioner argues that the trial court erred in granting respondents' motion to dismiss. Petitioner believes he has standing since he claims he is "aggrieved" within the meaning of N.C. Gen. Stat. § 160A-388(e). Petitioner further argues that he will suffer special damages if respondents are permitted to construct two cottages on their property. We disagree.
"N.C. Gen. Stat. § 160A-388(e) authorizes an `aggrieved party' to seek review of board of adjustment decisions made under zoning ordinances." Heery v. Zoning Bd. of Adjustment, 61 N.C. App. 612, 613, 300 S.E.2d 869, 870 (1983). "An aggrieved party is one who can either show an interest in the property affected, or if the party is a nearby property owner, some special damage, distinct from the rest of the community, amounting to a reduction in the value of his property." Allen v. City of Burlington Bd. of Adjustment, 100 N.C. App. 615, 618, 397 S.E.2d 657, 659 (1990) (citing Concerned Citizens v. Bd. of Adjustment of Asheville, 94 N.C. App. 364, 366, 380 S.E.2d 130, 131 (1989)). "Only persons `aggrieved' within the meaning of the section possess standing to seek judicial review thereunder." Lloyd v. Town of Chapel Hill, 127 N.C. App. 347, 350, 489 S.E.2d 898, 900 (1997). In petitioning for appellate review, the petitioning party must allege "the facts on which the claim of aggrievement is based." Kentallen, Inc. v. Town of Hillsborough, 110 N.C. App. 767, 769, 431 S.E.2d 231, 232 (1993) (citations omitted).
In the case sub judice, since petitioner's property is adjacent to the Smith Property he is able to show he is a nearby property owner. Petitioner stated in his writ of certiorari that the construction of the two beach cottages on the Smith Property would be "unreasonably close to [his] property line" and that the proposed construction would be inconsistent with present uses in the area. However, petitioner's allegations fail to establish that the Administrator's decision would cause petitioner special damages distinct from the rest of the community resulting in a reduction of the value of the property. General allegations of speculative damages are insufficient to confer standing under N.C. Gen. Stat. § 160A-388(e). "Without a claim of special damages, the petitioners are not `aggrieved' persons under N.C. Gen. Stat. § 160A-388(e), and they have no standing." Heery, 61 N.C. App. at 614, 300 S.E.2d at 870.
In sum, because petitioner failed to meet his burden of establishing that he is an aggrieved party within the meaning of N.C. Gen. Stat. § 160A-388(e), petitioner lacked standing to seek review of the Board's decision. Thus, the trial court correctly dismissed petitioner's petition for writ of certiorari. We affirm.
Affirmed.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).