NC Appeals Court Holds Landowners Did Not Demonstrate Specific Damages Sufficient to Have Standing to Challenge Rezoning

This post was authored by Matthew Loescher, Esq.

The Forest at Bailey’s Glen was a phased construction, residential subdivision for residents 55 and older located in Cornelius, North Carolina. Bailey’s Glen consists of 728 homes that have been built or were planned to be built and is bordered primarily by Bailey’s Road to the west and Barnhardt Road to the south. Plaintiff, Mr. Violette, owned approximately 32 contiguous acres across the street from Bailey’s Glen on Barnhardt Road. In March 2019, Mr. Palillo submitted an application on behalf of Bluestream Partners to the Town requesting rezoning of the property acquired by Forestyle from Mr. Clawson’s estate from Rural Preservation to RP-CZ – a conditional district zoning under the Town’s Land Development Code that would allow for construction of a new amenity center. The Town’s Planning Board reviewed and recommended approval of the application, and the Town’s Board of Commissioners approved the application in October 2020. After Plaintiffs brought suit, the trial court held that Plaintiffs lacked standing to challenge the rezoning, and in the alternative, that if Plaintiffs had standing to challenge the rezoning, summary judgment in favor of Defendants was proper.

At the outset, the court noted that under current law, general diminution of property values in the area does not confer standing on a neighboring owner to challenge a zoning decision, and the neighbor’s opinion of the diminution in value of the property the neighbor owns is not competent evidence to establish the neighbor’s standing to challenge the decision. Here, Plaintiffs claimed they had a specific legal and personal interest in the Plaintiffs’ properties, which were directly and adversely affected by the Town’s approval of the rezoning. Furthermore, Plaintiffs claimed they had been actively and continuously involved as much as possible throughout the rezoning process by communicating with the developer, Bluestream, and the Town, and by attending and speaking at meetings before the Board of Commissioners and the Community meeting.

Notwithstanding the aforementioned, Plaintiffs’ complaint was not verified, and an affidavit was not attached as an exhibit to substantiate the allegations above. Moreover, in their responses to written discovery, Plaintiffs disclosed that they did not intend to engage any experts to prepare any reports or affidavits or testify at trial. At Mr. Violette’s deposition, he testified that the construction of the amenity center would diminish the value of his property—which he opined was worth $10 million—by $5 or $6 million because of increased noise, traffic, and light. As this evidence of the diminution in value of Plaintiffs’ property was determined to be not competent evidence, the trial court’s dismissal of Defendants’ motion was upheld.

Violette v Town of Cornelius, 874 S.E. 2d 217 (NC App. 6/7/2022)