{
  "id": 8526432,
  "name": "KENTALLEN, INC. v. THE TOWN OF HILLSBOROUGH, THE BOARD OF ADJUSTMENT for the TOWN OF HILLSBOROUGH and LARRY CARROLL, SR., and BETTY CARROLL",
  "name_abbreviation": "Kentallen, Inc. v. Town of Hillsborough",
  "decision_date": "1993-07-06",
  "docket_number": "No. 9215SC636",
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          "parenthetical": "\"adjoining or nearby\" property owner has standing if he \"will sustain . . . from the proposed use ... a reduction in the value of his own property\""
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          "parenthetical": "\"adjoining or nearby\" property owner has standing if he \"will sustain . . . from the proposed use ... a reduction in the value of his own property\""
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  "casebody": {
    "judges": [
      "Judges JOHNSON and WYNN concur."
    ],
    "parties": [
      "KENTALLEN, INC. v. THE TOWN OF HILLSBOROUGH, THE BOARD OF ADJUSTMENT for the TOWN OF HILLSBOROUGH and LARRY CARROLL, SR., and BETTY CARROLL"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nRespondents Larry Carroll, Sr. and Betty Carroll (the Carrolls) own property located within the limits of respondent Town of Hillsborough (the Town). The Carrolls applied, on 21 March 1991, to the Town\u2019s Planning Department for a permit to construct a thirty-foot by thirty-five-foot addition to a metal storage building located at the rear of their property. The existing metal storage building is located less than the. required twenty feet from the rear boundary of the Carrolls\u2019 lot, and is a non-conforming use pursuant to the Town\u2019s Zoning Ordinance (the Ordinance). Notice of a public hearing on the matter before respondent Board of Adjustment for the Town of Hillsborough (the Board) was sent to nearby property owners. In response, Kentallen, Inc. (Kentallen), owner of the property adjoining the Carroll property, sent a letter to the Board stating in part that allowing the nonconforming use would substantially increase \u201c[t]he negative impact\u201d on its property. The letter was signed by Neal Littman (Littman). Littman also appeared at the public hearing on 10 April 1991, and testified that the view of the nonconforming building from the Kentallen property \u201cwould not be visually attractive.\u201d The Board issued a special exception permit on 11 April 1991, allowing the nonconforming use requested by the Carrolls.\nOn 10 May 1991, Kentallen filed a petition in superior court alleging that the addition to the metal storage building extends, enlarges, and expands the present nonconforming use of the metal storage building, and is, therefore, in violation of the Ordinance. Kentallen further alleged that it is \u201cthe owner of adjoining property, and is an aggrieved party.\u201d The petition prayed that a writ of certiorari be directed to the Board requiring that the Board forward the complete record of its decision on the Carrolls\u2019 application for a special exception permit to the superior court for consideration. An order granting the writ was filed 16 July 1991. A hearing was held on the matter on 24 February 1992. In a letter, which is included in the record, addressed to both parties and dated 28 February 1992, the trial judge stated that he had decided to affirm the decision of the Board and instructed respondents\u2019 counsel to prepare an appropriate order. The trial judge also stated that \u201cI am not going to dismiss the proceeding because of any alleged lack of standing.\u201d The order affirming the Board\u2019s decision was filed 17 March 1992.\nKentallen appeals, assigning as error the trial court\u2019s findings of fact as not supported by the evidence, the trial court\u2019s conclusions of law as not supported by the findings of fact, and that the trial court failed to consider the overall intent of the Ordinance in arriving at its decision.\nRespondents cross-assign as error the trial court\u2019s failure to dismiss the action on the ground that Kentallen lacked standing to contest the issuance of the special exception permit.\nThe dispositive issue is whether Kentallen had standing to contest the Board\u2019s decision to issue the special exception permit.\nNorth Carolina Gen. Stat. \u00a7 160A-388 allows cities and towns to appoint Boards of Adjustment for the purpose of hearing and deciding appeals from decisions of officials charged with the regulation of planning and development, including zoning. N.C.G.S. \u00a7 160A-388(a) (Supp. 1992). \u201cEvery decision of the board shall be subject to review by the superior court by proceedings in the nature of certiorari.\u201d N.C.G.S. \u00a7 160A-388(e) (Supp. 1992). Only aggrieved parties have standing to seek such review. Allen v. City of Burlington Bd. of Adjustment, 100 N.C. App. 615, 618, 397 S.E.2d 657, 659 (1990). Aggrieved parties include owners of property upon which restrictions are imposed and \u201cthose who have sustained pecuniary damage to real property in which they have an interest.\u201d 3 Edward H. Ziegler, Jr., Rathkopfs The Law of Zoning and Planning \u00a7\u00a7 43.02[1], 43.03[1] (1993) [hereinafter Rathkopfs]; see Jackson v. Guilford County Bd. of Adjustment, 275 N.C. 155, 161, 166 S.E.2d 78, 82 (1969) (\u201cadjoining or nearby\u201d property owner has standing if he \u201cwill sustain . . . from the proposed use ... a reduction in the value of his own property\u201d). Not only is it the petitioner\u2019s burden to prove that he will sustain a pecuniary loss, but he must also allege \u201cthe facts on which [the] claim of aggrievement is based.\u201d Rathkopfs at \u00a7 43.04[1]; 4 Robert M. Anderson, American Law of Zoning 3d \u00a7 27.23 (1986) (petitioner \u201cmust allege the circumstances which establish his status\u201d); see Heery v. Town of Highlands Zoning Bd. of Adjustment, 61 N.C. App. 612, 614, 300 S.E.2d 869, 870 (1983). The petition must therefore allege \u201cthe manner in which the value or enjoyment of [petitioner\u2019s] land has been or will be adversely affected.\u201d Rathkopfs at \u00a7 43.04[1] (footnote omitted). Examples of adequate pleadings include allegations that the rezoning would cut off the light and air to the petitioner\u2019s property, increase the danger of fire, increase the traffic congestion and increase the noise level. Id. Once the petitioner\u2019s aggrieved status is properly put in issue, the trial court must, based on the evidence presented, determine whether an injury \u201chas resulted or will result from [the] zoning action.\u201d Id.\nIn this case, Kentallen\u2019s allegation that it is the \u201cowner of adjoining property\u201d does not satisfy the pleading requirement, in that there is no allegation relating to whether and in what respect Kentallen\u2019s land would be adversely affected by the Board\u2019s issuance of the special exception permit. Furthermore, the evidence presented before the Board, that the requested construction would increase \u201c[t]he negative impact\u201d on the petitioner\u2019s property and \u201cwould not be visually attractive,\u201d is much too general to support a finding that Kentallen will or has suffered any pecuniary loss to its property due to the issuance of the permit.\nThe order appealed from is vacated, and the matter is remanded to the trial court for entry of an order (1) dismissing the petition for a writ of certiorari filed 10 May 1991; (2) vacating the writ of certiorari granted 16 July 1991; and (3) reinstating the special exception permit issued by the Board on 11 April 1991.\nVacated and remanded.\nJudges JOHNSON and WYNN concur.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Cheshire, Parker and Butler, by D. Michael Parker, for plaintiff/petitioner-appellant, Kentallen, Inc.",
      "Michael B. Brough & Associates, by Jan S. Simmons, for defendant/respondent-appellees The Town of Hillsborough and The Board of Adjustment for the Town of Hillsborough.",
      "Robert Maggiolo for defendant/respondents Larry Carroll, Sr. and Betty Carroll (no brief filed)."
    ],
    "corrections": "",
    "head_matter": "KENTALLEN, INC. v. THE TOWN OF HILLSBOROUGH, THE BOARD OF ADJUSTMENT for the TOWN OF HILLSBOROUGH and LARRY CARROLL, SR., and BETTY CARROLL\nNo. 9215SC636\n(Filed 6 July 1993)\nMunicipal Corporations \u00a7 30.19 (NCI3d| \u2014 special exception permit\u2014 adjoining landowner \u2014 no standing to contest issuance\nPetitioner had no standing to contest the decision by respondent Board of Adjustm\u00e9nt to issue a special exception permit allowing respondents to add to a metal storage building at the rear of their property, since petitioner\u2019s allegation that it was the \u201cowner of adjoining property\u201d did not satisfy the pleading requirement that there be an allegation relating to whether and in what respect petitioner\u2019s land would be adverse- \u25a0 ly affected by the Board\u2019s issuance of the special exception permit, and evidence that the requested construction would increase \u201c[t]he negative impact\u201d on petitioner\u2019s property and \u201cwould not be visually attractive\u201d was much too general to support a finding that petitioner had or would suffer any pecuniary loss to its property due to the issuance of the permit.\nAm Jur 2d, Licenses and Permits \u00a7 82.\nAppeal by petitioner from order filed 17 March 1992 in Orange County Superior Court by Judge F. Gordon Battle. Heard in the Court of Appeals 13 May 1993.\nCheshire, Parker and Butler, by D. Michael Parker, for plaintiff/petitioner-appellant, Kentallen, Inc.\nMichael B. Brough & Associates, by Jan S. Simmons, for defendant/respondent-appellees The Town of Hillsborough and The Board of Adjustment for the Town of Hillsborough.\nRobert Maggiolo for defendant/respondents Larry Carroll, Sr. and Betty Carroll (no brief filed)."
  },
  "file_name": "0767-01",
  "first_page_order": 797,
  "last_page_order": 800
}