“Standing” is suddenly a hot topic in zoning law, with three recent appellate opinions on the subject, one of which was a case of first impression decided by our Supreme Court.
SIDEBAR: My colleague Kip Nelson and I have our own standing case in the N.C. Court of Appeals awaiting decision. Accordingly – and since the ethics of blog writing are undefined in these contexts – I’ll only make general comments on standing and add a couple of innocuous points on these cases. The case summaries have been prepared by Olivia Fajen in my firm without edits from me as to substance. The case descriptions and interpretations are hers alone. END SIDEBAR.
What Is Standing?
As a general rule, “standing” refers to a citizen’s right to avail him or herself of remedies offered by our judiciary. Only someone who has been harmed may appeal to our courts, and the harm must be one that can be addressed by judicial remedy.
Without standing, a court does not have subject matter jurisdiction over a case. Thus, the nature and existence of standing may be raised at any time.
The Zoning Case Conundrum
In land use and zoning cases, our courts keep struggling to define who can challenge a local government’s decision affecting land use.
To quote Bugs Bunny, we “took a wrong turn at Albuquerque” with Jackson v. Board of Adjustment, a 1969 N.C. Supreme Court case where neighbors challenged approval of a mobile home park. The Court held that a reduction in one’s property value resulting from an illegal use is sufficient to grant standing. But then we went into the wilderness for close to 40 years with several subsequent cases proclaiming that Jackson stood for the proposition that you must have a loss in property value to have standing.
In 2008, the Mangum v. Board of Adjustment case broadened the inquiry to include injury resulting from more than a loss of property value—in that case traffic, water drainage, and safety.
In 2015, the Court of Appeals raised the bar on standing in Cherry v. Weisner, concluding that a neighbor lacked standing to challenge the construction of a modernist style home in an historic neighborhood in Raleigh.
So what is happening this year to make standing such a hot topic? I don’t know, but let’s look at what our courts have said.
The Cherry Community Case
In February, the Court of Appeals published Cherry Community Org. v. City of Charlotte, No. 2015-CVS-20180 (N.C. App. Feb. 6, 2018). In Cherry Community a developer petitioned to rezone land in the Cherry Community. After first denying the rezoning because the building’s height violated area plans, the developer orally agreed to lower its building height and the city council approved the rezoning at its next hearing.
The community organization petitioned for judicial review, challenging the validity of an oral amendment in the rezoning process. The trial court held that CCO lacked standing on summary judgment, and community organization appealed.
The court reiterated that in zoning ordinance actions, a party (1) must suffer damages that are distinct from the rest of the community, and (2) those damages must be sufficiently plead.
Here, the court determined that CCO’s mere pleading of special damages was insufficient. There must be actual proof of special damages.
CCO failed to show that it would lose any tenants because of the rezoning or that the loss of view due to the height of the proposed building was associated with any diminution in value to its property. It presented no evidence of increased noise, traffic, or parking. Thus, its evidence of special damages was nothing more than conclusive, unsupported allegations.
Judge Hunter wrote a separate concurring opinion, arguing that standing is broad and includes anyone who has suffered harm. To him, the fact that the organization owns property adjoining the property at issue and can potentially be adversely affected by the rezoning was sufficient to have standing. But, Judge Hunter concurred in the result because CCO presented insufficient evidence of special damages to survive summary judgment.
Byron v. Synco Properties
In March, the Court of Appeals again stressed the importance of the necessity for a specific injury to satisfy standing requirements in Bryon v. Synco Properties, No. COA17-318 (N.C. App. Mar. 20, 2018). In Bryon, the plaintiffs challenged the constitutionality of amendments to the Protest Petition Statute, which replaced the traditional protest petition process with a “Citizen Comment” procedure. See N.C. Gen. Stat. § 160A-385 and S.L 2015-160. However, (1) the plaintiffs never actually petitioned the city protesting the rezoning; (2)their property was not subject to the rezoning; and (3)their property was not within 100 feet of the area subject to the rezoning.
The court distinguished the three different standards for standing involved in this case: (1) zoning ordinance challenges; (2) statutory construction and validity claims; and (3) constitutional challenges to zoning ordinances. First, a rezoning ordinance may be challenged “only by a person who has a specific personal and legal interest in the subject matter affected by the zoning ordinance and who is directly and adversely affected thereby.” Second, standing to challenge a statute requires that the statute directly and adversely affect the plaintiff. Third, standing to challenge the constitutionality of a zoning ordinance or statute requires that the plaintiff demonstrate injury or immediate danger of injury to a constitutionally protected interest in the property.
The Byron court held that the plaintiffs lacked standing because they did not have an injury – the property rezoned was not their property, and they did not have an interest in the rezoning of an adjoining landowner’s property.
These two cases show that there must be actual proof of a specific injury to a citizen’s property caused by the governmental decision. That is quite a high bar to meet.
Willomere v. City of Charlotte
Finally, in Willowmere Community Ass’n v. City of Charlotte, 809 S.E.2d 558 (N.C. Mar. 2, 2018), homeowners’ associations for adjacent subdivisions brought an action to challenge a Charlotte rezoning decision. In a case of first impression, the Supreme Court held that the homeowners’ associations did have standing to bring the action.
The city did not argue that the homeowners’ associations lacked a sufficient personal interest the case. Instead, the city asserted that the court had no subject matter jurisdiction because the homeowners’ associations acted without authority on behalf of its members because it did not follow its own internal grievance procedure required by its corporate bylaws.
The Court rejected the concept that the defendant, a stranger to the plaintiff association, may assert that the plaintiff’s failure to follow its own internal guidelines necessitates dismissal of the plaintiff’s complaint for lack of standing. Instead, only a member of the association may assert that argument.
Further, the Court stated that “[n]othing in our jurisprudence on standing requires a corporate litigant to affirmatively plead or prove its compliance with corporate bylaws and internal rules relating to its decision to bring suit.” Thus, the Court reversed and remanded the case back to the trial court, holding that the plaintiffs possessed a sufficient interest in the case.