{ "id": 11434317, "name": "NORTHEAST CONCERNED CITIZENS, INC., Plaintiff v. CITY OF HICKORY, TRICOR DEVELOPMENT CORPORATION, Defendants", "name_abbreviation": "Northeast Concerned Citizens, Inc. v. City of Hickory", "decision_date": "2001-05-01", "docket_number": "No. COA00-35", "first_page": "272", "last_page": "281", "citations": [ { "type": "official", "cite": "143 N.C. App. 272" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "510 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "348 N.C. 496", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659687, 1659928, 1659898, 1659836, 1659934 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/348/0496-05", "/nc/348/0496-02", "/nc/348/0496-03", "/nc/348/0496-04", "/nc/348/0496-01" ] }, { "cite": "497 S.E.2d 722", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "726" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 131", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11648720 ], "pin_cites": [ { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0131-01" ] }, { "cite": "388 S.E.2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "355-56" } ], "opinion_index": 0 }, { "cite": "326 N.C. 100", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305276 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0100-01" ] }, { "cite": "304 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "253", "parenthetical": "property association has standing to challenge city council's approval of special use permit by writ of certio-rari when individual members of property association would \"clearly have an interest in the property affected\"" } ], "opinion_index": 0 }, { "cite": "63 N.C. App. 244", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524881 ], "year": 1983, "pin_cites": [ { "page": "247", "parenthetical": "property association has standing to challenge city council's approval of special use permit by writ of certio-rari when individual members of property association would \"clearly have an interest in the property affected\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/63/0244-01" ] }, { "cite": "520 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "795-96" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 482", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241604 ], "year": 1999, "pin_cites": [ { "page": "485-86" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0482-01" ] }, { "cite": "300 S.E.2d 869", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "870" } ], "opinion_index": 0 }, { "cite": "61 N.C. App. 612", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523215 ], "year": 1983, "pin_cites": [ { "page": "614" } ], "opinion_index": 0, "case_paths": [ "/nc-app/61/0612-01" ] }, { "cite": "227 S.E.2d 576", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1976, "pin_cites": [ { "page": "583" }, { "page": "583" }, { "page": "583" } ], "opinion_index": 0 }, { "cite": "290 N.C. 608", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562814 ], "weight": 3, "year": 1976, "pin_cites": [ { "page": "620" }, { "page": "620" }, { "page": "620" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0608-01" ] }, { "cite": "439 S.E.2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "208", "parenthetical": "zoning decisions are legislative acts" } ], "opinion_index": 1 }, { "cite": "113 N.C. App. 553", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523585 ], "year": 1994, "pin_cites": [ { "page": "556", "parenthetical": "zoning decisions are legislative acts" } ], "opinion_index": 1, "case_paths": [ "/nc-app/113/0553-01" ] }, { "cite": "324 N.E.2d 317", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1974, "pin_cites": [ { "page": "321" }, { "page": "320" } ], "opinion_index": 1 }, { "cite": "576 P.2d 401", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1978, "pin_cites": [ { "page": "404", "parenthetical": "a non-profit association has standing if \"one or more of its members are specifically injured\"" } ], "opinion_index": 1 }, { "cite": "593 P.2d 1171", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2161254, 2101319 ], "year": 1978, "pin_cites": [ { "page": "1175", "parenthetical": "organization had standing where one of its members had individual standing" } ], "opinion_index": 1, "case_paths": [ "/or/286/0391-01", "/or-app/39/0917-01" ] }, { "cite": "417 N.Y.S.2d 165", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1979, "pin_cites": [ { "page": "169", "parenthetical": "association given standing had over 40 active members, several of whom lived near the proposed development" } ], "opinion_index": 1 }, { "cite": "594 P.2d 1079", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1979, "pin_cites": [ { "page": "1082", "parenthetical": "three of organization's members lived in immediate vicinity of land proposed to be rezoned; other members used land for recreation" } ], "opinion_index": 1 }, { "cite": "161 Cal. Rptr. 67", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1979, "pin_cites": [ { "page": "69", "parenthetical": "standing found when \"many\" of association's members owned property in close proximity to site proposed to be rezoned" } ], "opinion_index": 1 }, { "cite": "432 U.S. 333", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6179268 ], "weight": 4, "year": 1977, "pin_cites": [ { "page": "342-43" }, { "page": "393-94" }, { "page": "343" }, { "page": "394" } ], "opinion_index": 1, "case_paths": [ "/us/432/0333-01" ] }, { "cite": "388 S.E.2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1990, "pin_cites": [ { "page": "555", "parenthetical": "emphasis added" }, { "page": "555" }, { "page": "555" }, { "page": "556" } ], "opinion_index": 1 }, { "cite": "326 N.C. 100", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305276 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "130" }, { "page": "130" }, { "page": "131" } ], "opinion_index": 1, "case_paths": [ "/nc/326/0100-01" ] }, { "cite": "304 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "253" } ], "opinion_index": 1 }, { "cite": "63 N.C. App. 244", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524881 ], "year": 1983, "pin_cites": [ { "page": "247" } ], "opinion_index": 1, "case_paths": [ "/nc-app/63/0244-01" ] }, { "cite": "227 S.E.2d 576", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "583" } ], "opinion_index": 1 }, { "cite": "290 N.C. 608", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562814 ], "year": 1976, "pin_cites": [ { "page": "620" } ], "opinion_index": 1, "case_paths": [ "/nc/290/0608-01" ] } ], "analysis": { "cardinality": 942, "char_count": 23666, "ocr_confidence": 0.762, "pagerank": { "raw": 2.4119977885984845e-07, "percentile": 0.8000468367074682 }, "sha256": "ffdacf2c4e96ca195be60ad0c3803444415eba2a83c4a30ca6d3b1fa432af9fc", "simhash": "1:0b7260622829ad13", "word_count": 3792 }, "last_updated": "2023-07-14T21:26:47.079244+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McCULLOUGH concurs.", "Judge HUDSON concurs in the result with separate opinion." ], "parties": [ "NORTHEAST CONCERNED CITIZENS, INC., Plaintiff v. CITY OF HICKORY, TRICOR DEVELOPMENT CORPORATION, Defendants" ], "opinions": [ { "text": "GREENE, Judge.\nNortheast Concerned Citizens, Inc. (Plaintiff) appeals an order filed 7 September 1999 granting summary judgment in favor of City of Hickory (the City) and Tricor Development Corporation (Tricor) (collectively, Defendants) and denying Plaintiffs motion for summary judgment.\nSection 14.1 of the Hickory Zoning Ordinance (the Ordinance) provides for the establishment of Planned Development (PD) Districts. Zoning Ordinance, City of Hickory, N.C. \u00a7 14.1 (1993). PD Districts are zoning districts \u201cestablished for specialized purposes where tracts, suitable in location, area[,] and character for the uses and structures proposed, are to be planned and developed on a unified basis.\u201d Id. The PD Districts permitted by Article 14 include PD Shopping Center Districts for community shopping centers. Id. \u00a7 14.8. The establishment of a PD District requires both the rezoning of the property at issue as a PD District and the approval of a Preliminary Development Concept Plan. The Preliminary Development Concept Plan consists of a plan for the specific use to be made of the property if the property is rezoned, and the plan must \u201cinclude all data reasonably necessary for determining whether the proposed development meets the specific requirements and limitations, and the intent concerning a particular type of PD District.\u201d Id. \u00a7 14.5.1. To apply for the establishment of a PD District, a party must submit a rezoning request as well as a Preliminary Development Concept Plan to the Hickory Regional Planning Commission (Planning Commission). Id.\nThe record shows that in Spring 1998, Tricor filed an application with the Planning Commission to rezone approximately 29.5 acres of land located at the intersection of Springs Road and Kool Park Road in Hickory (the property). At the time the application was submitted, a portion of the property was zoned residential, a portion of the property was zoned commercial, and a portion of the property was zoned PD Mobile Home Park. Tricor sought to have the property rezoned as a PD Shopping Center District for community shopping centers. Tricor\u2019s Preliminary Development Concept Plan stated its intent to construct a Wal-Mart on the property.\nOn 24 June 1998, the Planning Commission held a public hearing on Tricor\u2019s request to rezone the property. At the hearing, members of the public spoke both in opposition to and in favor of the rezoning request. At the conclusion of the hearing, the Planning Commission voted to recommend that the City Council for the City of Hickory (the City Council) deny Tricor\u2019s request to rezone the property.\nOn 21 July 1998, the City Council held a public hearing on the proposed rezoning of the property. At the conclusion of the hearing, the City Council approved Tricor\u2019s rezoning request by a 4-3 vote. On 18 August 1998, the rezoning ordinance was read for a second time, as required by the Hickory City Code. Subsequent to the reading, the rezoning ordinance was approved for a second time by a 4-3 vote and adopted by the City Council.\nOn 16 October 1998, Plaintiff filed a complaint in the Superior Court of Catawba County, alleging a cause of action against the City. Plaintiff\u2019s complaint stated, in pertinent part:\n1. . . . Plaintiff ... is a nonprofit corporation organized and existing under the laws of the State of North Carolina. The purpose for which the corporation was formed is to promote, preserve and protect the quality of living and land use in the City of Hickory... among said corporation[\u2019]s members and all residents of the City of Hickory .... In carrying out the purposes of the corporation this action has been instituted for the purpose of preserving the residential character of the neighborhood],] the subject of this litigation. Many of the supporters and the people whose interest it represents are people who own property in the immediate vicinity of the proposed shopping center that is the subject of this litigation. Accordingly, the use and enjoyment of the properties owned by such people would be diminished and their property values would be lowered if the proposed shopping center were to be constructed, and therefore, such persons would suffer special damages that are different in degree and kind from any adverse affects [sic] that may be suffered generally by other residents of the City of Hickory or Catawba County.\nPlaintiffs complaint alleged that the City lacked authority to exercise zoning powers under N.C. Gen. Stat. \u00a7 160A-364 when it rezoned the property, the City Council acted with bias when it approved the rezoning of the property, the rezoning of the property was \u201cunreasonable, arbitrary!,] and capricious,\u201d the City\u2019s actions were invalid because of Tricor\u2019s failure to \u201cprovide notice to all adjoining landowners of the [property],\u201d and the rezoning of the property violated N.C. .Gen. Stat. \u00a7 160A-382 (uniformity requirement throughout each district). Plaintiff requested the trial court \u201cdeclare the zoning amendment adopted by the . . . City Council on August 18, 1998 to be invalid and of no effect.\u201d\nIn an order filed 1 February 1999, the trial court granted a motion by Trieor to intervene. The City and Tricor filed answers to Plaintiff\u2019s complaint, stating as a defense that Plaintiff lacked standing to bring an action to challenge the rezoning ordinance. Defendants then filed a motion for summary judgment dated 18 May 1999, stating \u201cthere is no genuine issue as to any material fact. . . and [Defendants] are entitled to judgment as a matter of law.\u201d\nIn an affidavit dated 24 June 1999, Walter D. Scharer (Scharer) stated that he \u201cwas one of the original founding members of [Plaintiff].\u201d Scharer stated in his affidavit several ways in which the area surrounding the property would be affected if a Wal-Mart or any other shopping center were built on the property, including: there would be increases in traffic, crime, noise, and light, and \u201c[t]he property values of the neighborhood and surrounding vicinity would decrease as a result of the increased commercialization of the neighborhood.\u201d Attached to Scharer\u2019s affidavit was an exhibit listing the names of 114 individuals who were present at the first meeting held by Plaintiff, and Scharer stated in his affidavit all of these individuals were accepted as members of Plaintiff at the meeting. In addition to Scharer\u2019s affidavit, Plaintiff submitted to the trial court affidavits of eleven other members of Plaintiff. These affidavits stated the same concerns as stated in Scharer\u2019s affidavit and included statements that if a Wal-Mart or a similar shopping center were built on the property, \u201c[t]he property values of the neighborhood and surrounding vicinity would decrease as a result of the increased commercialization of the neighborhood.\u201d All of the parties who submitted affidavits stated they lived at addresses which are located in the neighborhood surrounding the property.\nTricor\u2019s First Set of Interrogatories to Plaintiff contained the following pertinent question: \u201cIdentify all persons who are members of [Plaintiff] and whom you contend own properties in such relationship to the property rezoned in this case that such persons would have standing as individuals to challenge this rezoning.\u201d In its response, Plaintiff listed the names of thirteen members.\nPlaintiff filed a motion for summary judgment dated 1 July 1999. In an order dated 7 September 1999, the trial court denied Plaintiffs motion for summary judgment and granted summary judgment in favor of Defendants.\nThe dispositive issue is whether a corporation which does not have any legal interest in property affected by a zoning ordinance nevertheless has standing to challenge that zoning ordinance when the members/shareholders of the corporation have standing as individuals to challenge the zoning ordinance.\nA zoning ordinance may be challenged by an action for declaratory judgment, Taylor v. City of Raleigh, 290 N.C. 608, 620, 227 S.E.2d 576, 583 (1976), or by writ of certiorari, N.C.G.S. \u00a7 160A-388(e) (1999). A party seeking to challenge a zoning ordinance, however, must have standing to bring such a challenge. Standing exists to challenge a zoning ordinance by a declaratory judgment action when the plaintiff \u201chas a specific personal and legal interest in the subject matter affected by the zoning ordinance and ... is directly and adversely affected thereby.\u201d Taylor, 290 N.C. at 620, 227 S.E.2d at 583. Similarly, standing exists to challenge a zoning ordinance by writ of certiorari when the plaintiff is an \u201caggrieved party,\u201d N.C.G.S. \u00a7 160A-388(e), i.e., the plaintiff will suffer damages \u201cdistinct from the rest of the community\u201d as a result of the zoning ordinance, Heery v. Zoning Board of Adjustment, 61 N.C. App. 612, 614, 300 S.E.2d 869, 870 (1983). Further, when a plaintiff seeks to challenge a zoning ordinance by a writ of certiorari, the plaintiff must allege special damages in its complaint. Id.; Village Creek Prop. Owners\u2019 Ass\u2019n, Inc. v. Town of Edenton, 135 N.C. App. 482, 485-86, 520 S.E.2d 793, 795-96 (1999). It thus follows a corporation has standing to challenge a zoning ordinance in a declaratory judgment action if the corporation has a specific legal interest directly and adversely affected by the zoning ordinance; and a corporation has standing to challenge a zoning ordinance by writ of certiorari if the corporation is an \u201caggrieved party\u201d under section 160A-388(e). Additionally, a corporation has standing to challenge a zoning ordinance in a declaratory judgment action if all of the members/shareholders of the corporation have a specific legal interest directly and adversely affected by the zoning ordinance; and a corporation has standing to challenge a zoning ordinance by writ of certiorari if all of the members/shareholders of the corporation are \u201caggrieved parties\u201d under section lbOA-SSSCe). See Piney Mt. Neighborhood Assoc. v. Town of Chapel Hill, 63 N.C. App. 244, 247, 304 S.E.2d 251, 253 (1983) (property association has standing to challenge city council\u2019s approval of special use permit by writ of certio-rari when individual members of property association would \u201cclearly have an interest in the property affected\u201d).\nIn this case, Plaintiff brought a declaratory judgment action against the City, in which it requested that the trial court \u201cdeclare the zoning amendment adopted by the ... City Council on August 18,1998 to be invalid and of no effect.\u201d Defendants raised as a defense to this action that Plaintiff lacked standing to challenge the rezoning ordinance, and Defendants filed a motion for summary judgment on the ground no genuine issue of material fact existed. The record does not contain any evidence Plaintiff has a specific legal interest directly and adversely affected by the rezoning ordinance; therefore, Plaintiff has standing to challenge the rezoning ordinance only if all of its members/shareholders have a specific legal interest directly and adversely affected by the rezoning ordinance. The record shows, at best, only twelve of Plaintiffs 114 members have such an interest. Accordingly, the trial court properly granted summary judgment in favor of Defendants on the ground Plaintiff did not have standing to challenge the rezoning ordinance.\nBecause Defendants were entitled to summary judgment on the ground Plaintiff lacked standing, we need not address Plaintiffs additional assignments of error.\nAffirmed.\nJudge McCULLOUGH concurs.\nJudge HUDSON concurs in the result with separate opinion.\n. The concurrence cites River Birch Associates v. City of Raleigh, 326 N.C. 100, 388 S.E.2d 538 (1990), for the proposition that all individual members of an association do not have to have individual standing for the association to have standing to bring an action on behalf of the members when the association itself does not have standing. River Birch, however, is distinguishable from the case sub judice because at issue in River Birch was an association\u2019s standing to bring an action for unfair or deceptive trade practices and not an action to challenge a zoning ordinance. Id. at 129-31, 388 S.E.2d at 355-56. As North Carolina has created a specific test for standing that is applicable to actions challenging zoning ordinances, see Taylor, 290 N.C. at 620, 227 S.E.2d at 583; N.C.G.S. \u00a7 160A-388(e), the more general standing requirement for associations stated in River Birch is not applicable to the case sub judice.\n. Plaintiff\u2019s complaint does not state whether it seeks review under the Declaratory Judgment Act, N.C.G.S. ch. 1, art. 26 (1999), or by petition for writ of cer-tiorari under section 160A-388(e). Because Plaintiff\u2019s complaint seeks to have the rezoning ordinance declared \u201cinvalid and of no effect,\u201d we treat Plaintiff\u2019s action as an action for declaratory judgment. See Ferguson v. Kittens, 129 N.C. App. 131, 138, 497 S.E.2d 722, 726 (type of action brought by plaintiff is determined based on nature of relief requested), disc. review denied and appeal dismissed, 348 N.C. 496, 510 S.E.2d 382 (1998).", "type": "majority", "author": "GREENE, Judge." }, { "text": "HUDSON, Judge,\nconcurring in result.\nI disagree with the conclusion that a corporation has standing to challenge a zoning action only if \u201call of the members/shareholders of the corporation\u201d would have individual standing to bring the action (emphasis added). Further, I believe that pertinent authority, including that cited in the majority opinion, compel a different conclusion on this issue. However, for reasons discussed below, I concur in the result reached by the majority.\nIn support of its holding, the majority cites Piney Mt. Neighborhood Assoc. v. Town of Chapel Hill, 63 N.C. App. 244, 247, 304 S.E.2d 251, 253 (1983). In Piney Mountain, this Court held that a corporate petitioner which \u201chas no property interest, but represents individuals who live in the affected area and who potentially will suffer injury\u201d from a zoning action, has standing to challenge that action on behalf of its members. Id. The decision does not specify that all of the individual members of the neighborhood association were required to have individual standing in order for the association to have standing. Rather, it notes \u201cthe trend in other jurisdictions toward relaxing strict procedural requirements involving standing\u201d and then proceeds to follow this trend by holding that the association involved did have standing. Id.\nIn River Birch Associates v. City of Raleigh, 326 N.C. 100, 388 S.E.2d 538 (1990), the North Carolina Supreme Court addressed the standing of a homeowner\u2019s association to bring an unfair and deceptive trade practices suit on behalf of its members. The Court found: \u201cTo have standing the complaining association or one of its members must suffer some immediate or threatened injury.\u201d Id. at 129, 388 S.E.2d at 555 (emphasis added). As such, the Court adopted the federal rule for associational standing set forth in Hunt v. Washington State Apple Advertising Comm., 432 U.S. 333, 342-43, 53 L. Ed. 2d 383, 393-94 (1977). River Birch sets forth the following test:\n[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization\u2019s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members of the lawsuit.\n326 N.C. at 130, 388 S.E.2d at 555 (quoting Hunt, 432 U.S. at 343, 53 L. Ed. 2d at 394). Thus, even though River Birch holds that an association\u2019s \u201cmembers\u201d must have standing in their own right in order for the association to have standing, it explains that not all of the members must have individual standing. For the same reason, I believe that Piney Mountain\u2019s language to the effect that a corporate petitioner has standing to challenge a zoning action if it \u201crepresents individuals\u201d who have standing, does not mean that all of the members of the association are required to have individual standing.\nI agree with the majority that North Carolina has developed by statute and case law certain tests for determining standing in zoning actions. See Taylor v. City of Raleigh, 290 N.C. 608, 620, 227 S.E.2d 576, 583 (1976); N.C.G.S. \u00a7 160A-388(e) (1999). However, Taylor delineates the basis for an individual to have standing to bring a zoning challenge; it does not address associational standing. While River Birch does not involve a zoning action, it is instructive as to how many of an association\u2019s members must have individual standing (under tests such as Taylor and N.C.G.S. \u00a7 160A-388(e)) in order to give the association standing to participate in litigation. In fact, River Birch cites Piney Mountain, a zoning case similar to the one before us, as an example of an association having standing to seek relief on behalf of its members. 326 N.C. at 130, 388 S.E.2d at 555.\nThis judge has been able to find no case in any jurisdiction which mandates that every single one of the individual members of an association must have standing on their own before an association itself may have standing to bring a zoning action. Rather, there are many cases which have found associational standing in zoning cases based upon the individual standing of one or several members. See, e.g., Simons v. City of Los Angeles, 161 Cal. Rptr. 67, 69 (Cal. Ct. App., 2d Distr. 1979) (standing found when \u201cmany\u201d of association\u2019s members owned property in close proximity to site proposed to be rezoned); Life of the Land v. Land Use Gom\u2019n, 594 P.2d 1079, 1082 (Haw. 1979) (three of organization\u2019s members lived in immediate vicinity of land proposed to be rezoned; other members used land for recreation); Ecology Action v. Van Cort, 417 N.Y.S.2d 165, 169 (N.Y. Sup. Ct. 1979) (association given standing had over 40 active members, several of whom lived near the proposed development); 1000 Friends of Oregon v. Multnomah County, Etc., 593 P.2d 1171, 1175 (Or. Ct. App. 1978) (organization had standing where one of its members had individual standing); Save a Valuable Environment v. Bothell, 576 P.2d 401, 404 (Wash. 1978) (a non-profit association has standing if \u201cone or more of its members are specifically injured\u201d).\nA seminal state court decision examining associational standing in zoning cases is Douglaston Civic Association v. Galvin, 324 N.E.2d 317, 321 (N.Y. 1974), which sets forth the following factors in determining whether an organization has standing:\n(1) the capacity of the organization to assume an adversary position, (2) the size and composition of the organization as reflecting a position fairly representative of the community or interests which it seeks to protect[,] (3) the adverse effect of the decision sought to be reviewed on the group represented by the organization as within the zone of interests sought to be protected[, and (4) whether] full participating membership in the representative organization [is] open to all residents and property owners in the relevant neighborhood.\nDouglaston discusses the policy implications behind its holding:\nIt should be readily apparent that a person desiring relaxation of zoning restrictions \u2014 such as a change from residential to business \u2014 has little to lose and much to gain if he can prevail. He is not reluctant to spend money in retaining special counsel and real estate appraisers if it will bring him the desired result. The individual owner of developed land in the neighborhood, on the other hand, may not, at the time, realize the impact the proposed change of zoning will have on his property, or, realizing the effect, may not have the financial resources to effectively oppose the proposed change. ... By granting neighborhood and civic associations standing in such situations, the expense can be spread out over a number of property owners putting them on an economic parity with the developer.\nId. at 320.\nOne practical effect of the majority\u2019s opinion may be to drastically curtail North Carolina citizens\u2019 ability to challenge zoning changes in the areas where they live. As Douglaston recognized, few people can afford to bring such a lawsuit as individuals. However, under the majority\u2019s decision, if citizens create a neighborhood association, they will have to carefully scrutinize each and every person who joins out of concern that if one person who does not have individual standing becomes a member, the entire group will lose standing to carry out one of its most important purposes. Such need for scrutiny might not be so harsh if a bright-line rule for determining when an individual has standing existed. In reality, whether a person has individual standing to challenge a zoning action is a subjective inquiry and can be a difficult determination for attorneys and judges, let alone lay people, to make. In this same vein, I also do not favor requiring our trial courts to engage in a full-scale inquiry regarding the individual standing of every member of an association seeking to challenge a zoning decision.\nIn conclusion, I believe our Supreme Court has already spoken to the requirements for associational standing in this state in River Birch and would require the trial court to apply the test set forth in River Birch to determine whether the association in this case has standing.\nI must concur in the result reached by the majority, however, in that I do not believe plaintiff can prevail on the merits of its case. Plaintiff essentially makes two arguments before this Court: first, that Hickory\u2019s ordinance regarding the approval of Planned Development Districts is unduly vague; second, that certain members of the City Council were biased in favor of the rezoning before they heard and voted on the matter. Plaintiffs did not assert the vagueness of the ordinance in the trial court, and they may not present this issue for the first time on appeal. N.C.R. App. P. 10(b)(1); River Birch Associates, 326 N.C. at 131, 388 S.E.2d at 556.\nFurthermore, the City Council, in voting to rezone the subject property as a Planned Development District, was acting in a legislative capacity. See Brown v. Town of Davidson, 113 N.C. App. 553, 556, 439 S.E.2d 206, 208 (1994) (zoning decisions are legislative acts). A predisposition to vote a certain way on a legislative matter does not amount to a due process violation. Id. I do not believe plaintiffs have demonstrated the City Council acted in an arbitrary and capricious manner in approving the subject rezoning.", "type": "concurrence", "author": "HUDSON, Judge," } ], "attorneys": [ "Tate, Young, Morphis, Bach & Taylor, LLP, by Thomas C. Morphis, Paul E. Culpepper, and Valerie R. Adams, for plaintiff-appellant.", "Gaither, Gorham & Crone, by John W. Crone, III, for defendant-appellee City of Hickory; and The Brough Law Firm, by Michael B. Brough and Robert E. Homik, Jr., for defendant-appellee Tricor Development Corporation." ], "corrections": "", "head_matter": "NORTHEAST CONCERNED CITIZENS, INC., Plaintiff v. CITY OF HICKORY, TRICOR DEVELOPMENT CORPORATION, Defendants\nNo. COA00-35\n(Filed 1 May 2001)\nZoning\u2014 community association \u2014 standing to challenge ordinance\nThe trial court properly granted summary judgment for defendants in an action by a nonprofit corporation challenging a rezoning ordinance where only 12 of plaintiff\u2019s 114 members/shareholders had a specific legal interest directly and adversely affected by the rezoning ordinance. The record did not contain any evidence that plaintiff has such an interest; therefore, plaintiff has standing only if all of its members/shareholders have the required interest.\nJudge Hudson concurring in the result.\nAppeals by plaintiff from order dated 7 September 1999 by Judge James U. Downs in Catawba County Superior Court. Heard in the Court of Appeals 13 February 2001.\nTate, Young, Morphis, Bach & Taylor, LLP, by Thomas C. Morphis, Paul E. Culpepper, and Valerie R. Adams, for plaintiff-appellant.\nGaither, Gorham & Crone, by John W. Crone, III, for defendant-appellee City of Hickory; and The Brough Law Firm, by Michael B. Brough and Robert E. Homik, Jr., for defendant-appellee Tricor Development Corporation." }, "file_name": "0272-01", "first_page_order": 302, "last_page_order": 311 }