Posted by: Patricia Salkin | March 5, 2016

NC Appeals Court Holds Neighbor Failed to Allege Special Damages and Was Therefore Not an “Aggrieved Party” With Standing to Challenge Building Permit in Historic District

Gail Wiesner (“respondent”) lives across the street from the single-family “modernist” design home of Louis Cherry and Marsha Gordon (“petitioners”) in Raleigh’s Oakwood neighborhood. Before building on their vacant lot, petitioners applied for a certificate of appropriateness to build their new home. When the Commission held hearings to consider the application, respondent and others objected to petitioners’ proposed modernist design because they considered it incongruous with the other houses in the historic district. After a series of hearings, the Commission approved the design, but then the Raleigh Board of Adjustment (“the Board”) rejected the design. Petitioners then appealed the Board’s ruling to the Superior Court, which reversed the Board’s decision, meaning that the Commission’s decision to approve the design was affirmed.

Respondent argued that the trial court erred in concluding that she lacked standing to appeal the Commission’s decisions to the Board; finding that respondent had the opportunity to allege standing before the Board; and denying respondent’s motion to supplement the record. Here, the court found the fact that respondent owned property “immediately adjacent to or in close proximity to the subject property” lent some weight to the issue of whether the party will suffer special damages, but status as an adjacent landowner alone was insufficient to confer standing. Moreover, these allegations did not demonstrate special damages distinct to respondent, other than the view from her front porch; rather, respondent alleged a generalized damage to the overall neighborhood: “reduced property values and impaired enjoyment of the neighborhood.”

Additionally, respondent had multiple opportunities to allege standing before the Board. After retaining counsel, respondent submitted two separate Applications for Review of the Committee’s decisions to the Board, which should have been used for this purpose. Lastly, respondent’s brief failed to state any reason why the trial court’s decision not to allow supplementation of the record was manifestly unsupported by reason. The supporting affidavits respondent was attempting to enter into the record did not address any sort of secondary impacts upon respondent’s property, such as traffic, noise, light, odors, runoff, or any other sort of potential damage generated by the use of petitioners’ property. Accordingly, the court held that the trial court did not abuse its discretion in denying respondent’s motion to supplement the record, and affirmed the holding that respondent was not an “aggrieved party” with standing.

Cherry v. Wiesner, 2016 WL 611074 (NC App. 2/16/2016)

 


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