Massey v. City of Charlotte

MASSEY v. CITY OF CHARLOTTE, 2000 NCBC 4

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF MECKLENBURG 99-CVS-18764

BETHANIE C. MASSEY, et al.

Plaintiffs
ORDER AND OPINION

v.

CITY OF CHARLOTTE AND
ALBEMARLE LAND COMPANY, LLC

Defendants.

{1} This matter is before the Court on Defendant Albemarle Land Company, LLC’s Motion to Dismiss

Petition for Writ of Certiorari. This Court has received and reviewed Petitioners’ brief in support of
petition, Defendant’s brief in opposition to the petition and Petitioners’ reply, and oral arguments were
heard. At issue is whether the Petitioners have standing to challenge the City of Charlotte’s decision

to rezone a parcel of land owned by Albemarle Land Company, LLC (“Albemarle”) to a conditional
use district and to issue a conditional use permit. For the reasons explained below, the Court finds that

Petitioners have standing to challenge the rezoning decision, and therefore Defendant’s motion to
dismiss the writ of certiorari is DENIED.
Hewson Lapinel Owens, P.A., by H.L. Owens, for Petitioner Bethanie C. Massey.
Robinson Bradshaw & Hinson, P.A., by Frank E. Emory, Jr., for Respondent Albemarle Land
Company, LLC.
Robert E. Hagemann, for Respondent City of Charlotte.

I.

{2} In June of 1999, Albemarle filed a petition seeking the rezoning of approximately 42 acres of land
on Albemarle Road in Charlotte, North Carolina from R-3 (Residential) to CC (Commercial Center).

Upon approval of its petition, Albemarle intended to develop a retail center which would house two

“big box” retailers (a Target and a Lowes Home Improvement Warehouse) and five out-parcels. The

schematic plan submitted with the application provided for a 100-foot buffer strip between the
development and the neighboring property owners. The neighboring landowners filed a written

petition opposing the application. Despite the unanimous recommendation of the Planning Staff and
the Zoning Committee that the application of Albemarle be denied, on November 15, 1999, the

Charlotte City Council (“City Council”) approved the application by a 6 to 5 vote.
{3} On December 15, 1999, neighboring landowners filed a petition for writ of certiorari pursuant to

N.C.G.S. § 160A-381(c) and Rule 19. Upon the motion of Senior Resident Superior Court Judge

Shirley Fulton, this case was designated by the Chief Justice as a “complex business” case and

assigned to the undersigned pursuant to Rule 2.1. A motion to dismiss was filed by the City of
Charlotte on the grounds that the decision of the City Council was a legislative act, and therefore is

not subject to review in the nature of a writ of certiorari. Defendant Albemarle joined the motion filed

by the City of Charlotte, and in addition filed a separate motion to dismiss on the grounds that
Petitioners lack standing to challenge the zoning decision. This Court found that the zoning decision

was, in part, a quasi-judicial act, and therefore was subject to review on a writ of certiorari.

Accordingly, this Order deals solely with the issue of whether Petitioners have standing to seek a writ

of certiorari.
II.

{4} Albemarle argues that Petitioners are not “aggrieved parties,” and therefore do not have standing to

challenge the City’s zoning decision. Albemarle points to North Carolina case law which establishes

what Albemarle characterizes as a narrow definition of “aggrieved party.” An aggrieved party is a

person who has an “interest in the property affected” by the city council’s action. Pigford v. Bd. of

Adjust., 49 N.C. App. 181, 182-83, 270 S.E.2d 535, 536 (1980). In order to challenge a rezoning

ordinance, one must have a specific personal and legal interest in the subject matter affected by the

ordinance and must be directly and adversely affected by the ordinance. Davis v. City of Archdale, 81
N.C. App. 505, 508, 344 S.E.2d 369, 371 (1986) citing Taylor v. City of Raleigh, 290 N.C. 608, 227

S.E.2d 576 (1976). To have standing, an adjacent or nearby landowner must allege and show special

damages distinct from the rest of the community. Id. (citing Heery v. Zoning Bd. of Adjust., 61 N.C.

App. 612, 300 S.E. 2d 869 (1983)). An aggrieved party must set forth specific facts which support her

allegation of special damages. Kentallen, Inc. v. Town of Hillsboro , 110 N.C. App. 767, 769, 431

S.E.2d 231, 232 (1993).

{5} Albemarle takes the position that Petitioners must allege more than a diminution in property value
and burdens such as an increase in traffic, noise, or light. However, this Court finds the case law to

hold otherwise. In order to establish standing, Petitioners must allege the manner in which the value or

enjoyment of Petitioners’ land will be adversely affected. Kentallen, 110 N.C. App. at 769, 431

S.E.2d at 232. In Kentallen, the North Carolina Court of Appeals stated 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. Once the petitioner’s aggrieved status is properly
put in issue, the trial court must, based on the evidence presented, determine whether an
injury ‘has resulted or will result from [the] zoning action.’

Id. at 769-70, 431 S.E.2d at 232 (quoting Heery, 61 N.C. App. at 614, 300 S.E.2d at 870).

{6} In this case, Petitioners are neighboring landowners who were informed about the proposed

development and who appeared at public hearings in opposition to the rezoning. Petitioners have

sufficiently alleged and proven: (1) that the proposed development may have a negative effect on their

property values, and (2) that the development may generate an increased amount of noise, light, odors,
and traffic, which will diminish the value of their property and reduce their enjoyment of it. For

example, Petitioners have attested to the fact that their bedroom windows overlook the site of the

proposed development, and that they will be disturbed by the increased light at night from the lights in

the parking lot. (Massey Aff.; R. Gilbert Aff.) In addition, Petitioners have stated that they will be

disturbed by the noise created by contractors picking up supplies in the early morning hours, and by

noise from loudspeakers. (Massey Aff.; R. Gilbert Aff.; P. Gilbert Aff.) Petitioners have explained

that because their property is adjacent to the site, there is no residential buffer to block noise and light,

therefore making them unique from other landowners in the community. (Ramon Ryoti Aff.) Finally,
Petitioner Ragan Ryoti, who is a real estate agent, has attested that, in her experience, there is little

interest among prospective buyers in a home which abuts a large commercial center. (Ragan Ryoti

Aff.)
{7} Clearly, because of Petitioners’ close proximity to the proposed development, they are likely to

suffer damages unique from or to a greater extent than other members of the community. This Court
finds that Petitioners have established special damages that will be unique to them as neighboring

landowners and that Petitioners, therefore, are aggrieved parties. Accordingly, the allegations set forth
by Petitioners are sufficient to grant Petitioners standing to seek a writ of certiorari. The Petitioners

have established, and the Court finds, that an injury has occurred as a result of the zoning action.
Petitioners have an interest in property which may be directly and adversely affected by the zoning
decisions at issue.

{8} Furthermore, the case law on standing to challenge decisions of zoning authorities typically
involves either a challenge to the validity of a zoning authority’s decision, or a claim that the zoning

board failed to follow the procedures provided for in the zoning ordinance. In contrast, this case raises
the issue of whether the procedures set forth in Charlotte’s zoning ordinance comport with due
process. This Court has determined that, with respect to the system of conditional use district zoning
implemented by the City of Charlotte, due process requires a two step process – first the City Council

must make the legislative decision whether to rezone the property to a conditional use district; and
second the City Council must decide whether to grant a conditional use permit, which is a quasi-

judicial determination. In this case, the City of Charlotte concedes that it failed to follow quasi-
judicial procedures when deciding whether to grant Albemarle’s application for a conditional use

permit. Certainly, the Petitioners were “aggrieved” by the fact that the statutorily mandated
procedures, which were intended to provide neighboring landowners due process protection, were not
followed. If this Court were to find that Petitioners lacked standing to challenge the zoning decision in

this case, it would essentially prevent anyone from asserting her due process rights by challenging the
validity of the procedures adopted by the City Council and set forth in the City’s zoning ordinance.

See The County of Lancaster, South Carolina v. Mecklenburg County , 334 N.C. 496, 434 S.E.2d 604
(1993) (assumed standing in order to address the important issue of the constitutionality of the

county’s zoning ordinance).
Conclusion
{9} Petitioners have alleged sufficient facts to establish that they are aggrieved parties and the Court

finds that they are aggrieved parties as contemplated by the statute. See N.C.G.S. § 160A-388(e).
Thus, the Petitioners have standing to challenge the City Council’s zoning decision. Petitioners have

established that their properties will be uniquely burdened by the inevitable consequences of the
proposed development including increased noise, traffic, and light. Petitioners, at least one who is a

real estate agent, have specifically stated that their property values will diminish as a result of the
development, and no evidence has been established to the contrary. Furthermore, Petitioners are
aggrieved parties in the sense that their due process rights were violated by the City Council’s failure

to follow the statutorily prescribed procedures for conditional use district zoning.
{10} Therefore it is hereby ordered, adjudged and decreed that Defendant’s motion to dismiss the

petition for writ of certiorari is DENIED.

This the 17th day of April, 2000.