Posted by: Patricia Salkin | December 2, 2017

NC Appeals Court Finds that Community Organization Lacked Standing to Challenge Development Rezoning

This post was authored by Amy Lavine, Esq.

A North Carolina appellate court held in November 2017 that a community organization did not have standing to challenge a mixed use development rezoning. The case involved a development proposed by Midtown Area Partners (MAP) that included offices, retail, a hotel, and residential units. The project was granted a rezoning, and this approval was challenged by Cherry Community Organization (CCO), a nonprofit entity that was created to promote affordable housing and protect the residential character of the Cherry neighborhood. Although CCO owned property adjacent to the rezoned parcels, the court found that CCO could not establish standing because it failed to present sufficient evidence of special damages.

At the outset, the court emphasized that the strict requirements for standing in zoning cases reflect the importance of protecting private property rights. As the court explained:
The interference by the State, by exercising its police powers, is the pinnacle of intrusion on private property rights by the government. Accordingly, our Courts appropriately have set a high bar for third parties to establish standing to bring actions relating to the exercise of police powers between the State and its citizens.
To establish standing to challenge a zoning decision, the court continued, a party must show that it will suffer special damages different from the injuries caused to the public at large. The ownership of adjacent or nearby property is relevant to this determination but it is not enough, the court emphasized, to prove special damages.

According to the testimony of a CCO representative, the court pointed out, CCO was unlikely to lose any tenants at its property as a result of the rezoning, and thus the evidence did not support its claim that it would suffer reduced property values because of the rezoning. The claimed injuries relating to the project’s height were also insufficient to constitute special damages because the development plans had been amended to reduce the project’s height and bring it into compliance with the height limits prescribed in the zoning ordinance. The testimony on CCO’s behalf was limited to these matters and did not address any other alleged injuries related to noise, traffic, or parking. As a result, the court found, the testimony failed to provide any evidence that CCO would suffer special harm due to the rezoning.

The court also found no evidence of special harm in CCO’s meeting minutes, which it offered as support to establish standing. The minutes from the CCO meeting merely listed who was present and recorded various organizational matters such appointments and the approval of a motion to sell certain real estate. The second set of minutes submitted into evidence by CCO covered the meeting at which the city considered the rezoning petition. While these minutes discussed objections made by one councilperson regarding the project’s consistency with a zoning overlay, the court was unable to find anything in the minutes that would provide sufficient evidence of special damages to CCO’s property.

In sum, the court concluded, “CCO has failed to point us to any record evidence to meet its burden of production at summary judgment that CCO will suffer special damages distinct from the rest of the community by rezoning, nor can we find any.”

Cherry Community Organization v City of Charlotte, 808 S.E. 2d 468 (NC App. 11/21/2017)

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