{ "id": 9190224, "name": "PETER J. SARDA and wife, PATRICIA T. SARDA, Petitioners v. CITY/COUNTY OF DURHAM BOARD OF ADJUSTMENT and JOE MITCHELL, Respondents", "name_abbreviation": "Sarda v. City/County of Durham Board of Adjustment", "decision_date": "2003-02-18", "docket_number": "No. COA02-284", "first_page": "213", "last_page": "216", "citations": [ { "type": "official", "cite": "156 N.C. App. 213" } ], "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": "137 S.E.2d 806", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1964, "pin_cites": [ { "page": "808" }, { "page": "808" } ], "opinion_index": 0 }, { "cite": "262 N.C. 462", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568279 ], "weight": 2, "year": 1964, "pin_cites": [ { "page": "465" }, { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0462-01" ] }, { "cite": "522 S.E.2d 781", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "785", "parenthetical": "citing Burgess v. Gibbs, 262 N.C. 462, 465, 137 S.E.2d 806, 808 (1964)" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 734", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11242869 ], "year": 1999, "pin_cites": [ { "page": "739", "parenthetical": "citing Burgess v. Gibbs, 262 N.C. 462, 465, 137 S.E.2d 806, 808 (1964)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0734-01" ] }, { "cite": "546 S.E.2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "353 N.C. 267", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135721, 135755, 135901, 135758 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/353/0267-02", "/nc/353/0267-04", "/nc/353/0267-03", "/nc/353/0267-01" ] }, { "cite": "533 S.E.2d 842", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "845" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 487", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9497081 ], "year": 2000, "pin_cites": [ { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0487-01" ] }, { "cite": "489 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "900" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 347", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11795758 ], "year": 1997, "pin_cites": [ { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0347-01" ] }, { "cite": "300 S.E.2d 869", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "870" }, { "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" ] } ], "analysis": { "cardinality": 364, "char_count": 7307, "ocr_confidence": 0.735, "pagerank": { "raw": 2.655969028682818e-07, "percentile": 0.8244683377293425 }, "sha256": "13a44af810dc0df9dc274f4a6ef1ca1db93507c9fa1717749a19d9079d07154d", "simhash": "1:0f53d9d4c2282cee", "word_count": 1182 }, "last_updated": "2023-07-14T21:05:49.893248+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge McCULLOUGH concur." ], "parties": [ "PETER J. SARDA and wife, PATRICIA T. SARDA, Petitioners v. CITY/COUNTY OF DURHAM BOARD OF ADJUSTMENT and JOE MITCHELL, Respondents" ], "opinions": [ { "text": "ELMORE, Judge.\nJoe Mitchell (\u201crespondent Mitchell\u201d or \u201cMitchell\u201d) moves this Court pursuant to N.C.R. App. P. 37(a) to determine: (1) that Peter J. Sarda and Patricia T. Sarda (collectively, \u201cpetitioners\u201d) lacked standing to appeal to the superior court from the City/County of Durham Board of Adjustment\u2019s (\u201crespondent Board\u201d or \u201cBoard\u201d) decision granting a special use permit in this matter; (2) that petitioners lack standing to be a party to the subsequent appeal to this Court from the superior court\u2019s order; and (3) that petitioners\u2019 appeal should be dismissed. We agree, and pursuant to N.C.R. App. P. 37(b), hereby allow respondent Mitchell\u2019s motion to dismiss the instant appeal.\nOn 24 October 2000, respondent Board granted a Minor Special Use Permit to respondent Mitchell, allowing Mitchell to operate a \u201cPaintball Playing Field\u201d on a tract of land he owns in rural Durham County. Petitioners, owners of a residential tract located across North Carolina Highway 98 approximately four hundred (400) yards from Mitchell\u2019s tract, appeared at the hearing before the Board and unsuccessfully argued against issuance of the special use permit. Pursuant to N.C. Gen. Stat. \u00a7 153A-345(e) (2001), petitioners filed a Petition for Writ of Certiorari (\u201cPetition\u201d) on 23 November 2000, seeking review by the Superior Court, Durham County, of the Board\u2019s decision to grant the special use permit. The Honorable Narley L. Cashwell heard this matter on 9 October 2001, and by his order filed 22 October 2001, the superior court reversed the Board\u2019s decision, finding specifically that the special use permit should not have been issued in the absence of \u201cevidence which is competent, material and substantial in support of the Board\u2019s finding that the proposed use is not injurious to the value of the properties in the general vicinity.\u201d\nRespondents thereafter filed separate Notice of Appeal from the superior court\u2019s judgment to this Court on 13 November 2001 (respondent Board) and 29 November 2001 (respondent Mitchell). On 28 May 2002, pursuant to N.C.R. App. P. 37(a), respondent Mitchell filed a \u201cMotion to Dismiss Appeal (Contest Standing).\u201d Respondent Mitchell\u2019s motion to dismiss the instant appeal was referred to this panel for determination.\nIn moving to dismiss the instant appeal, respondent Mitchell asserts that petitioners lacked standing to appeal to the superior court from the respondent Board\u2019s decision to issue the special use permit to respondent Mitchell. Respondent Mitchell further asserts that as a consequence of petitioners\u2019 lack of standing, (1) the superior court lacks subject matter jurisdiction over the controversy, such that its 22 October 2001 order reversing the Board\u2019s decision is a nullity; and (2) petitioners are not proper parties to the instant appeal before this Court.\nIn a case where, as in the case at bar, nearby landowners appealed to the superior court from a municipal board of adjustment\u2019s decision to grant a special use permit, this Court held that the nearby landowners lacked standing where\nthe petitioners failed to allege, and the Superior Court failed to find, that petitioners would be subject to \u2018special damages\u2019 distinct from the rest of the community. Without a claim of special damages, the petitioners are not \u2018aggrieved\u2019 persons under N.C. Gen. Stat. \u00a7 160A-388(e), and they have no standing.\nHeery v. Zoning Board of Adjustment, 61 N.C. App. 612, 614, 300 S.E.2d 869, 870 (1983). \u201c[S]pecial damage[s]\u201d are defined as \u201ca reduction in the value of his [petitioner\u2019s] own property.\u201d Id. at 613, 300 S.E.2d at 870. N.C. Gen. Stat. \u00a7 160A-388(e) (2001) is a substantially parallel statute to N.C. Gen. Stat. \u00a7 153A-345(e), the subject statute in the case at bar.\nIn the instant case, as in Heery, petitioners have failed to allege, and the superior court has failed to find, that they would suffer \u201cspecial damages distinct from the rest of the community\u201d should respondent Mitchell receive the requested special use permit. Regarding petitioners\u2019 purported interest in the instant controversy, the Petition alleges only that they are \u201cthe record land owners of a tract of land located across the highway from Respondent\u2019s property, and are citizens and residents of Durham County, North Carolina.\u201d This is clearly insufficient to qualify as an allegation that petitioners would suffer \u201cspecial damages distinct from the rest of the community\u201d should the Board issue the requested permit. Petitioners\u2019 mere averment that they own land in the immediate vicinity of the property for which the special use permit is sought, absent any allegation of \u201cspecial damages distinct from the rest of the community\u201d in their Petition, is insufficient to confer standing upon them. Lloyd v. Town of Chapel Hill, 127 N.C. App. 347, 351, 489 S.E.2d 898, 900 (1997).\nIn any case or controversy before the North Carolina courts, \u201csubject matter jurisdiction exists only if a plaintiff has standing.\u201d Peacock v. Shinn, 139 N.C. App. 487, 491, 533 S.E.2d 842, 845, rev. denied, 353 N.C. 267, 546 S.E.2d 110 (2000). \u201cIf a court finds at any stage of the proceedings that it lacks jurisdiction over the subject matter of a case, it must dismiss the case for want of jurisdiction.\u201d State v. Linemann, 135 N.C. App. 734, 739, 522 S.E.2d 781, 785 (1999) (citing Burgess v. Gibbs, 262 N.C. 462, 465, 137 S.E.2d 806, 808 (1964)). \u201cA universal principle as old as the law is that the proceedings of a court without jurisdiction of the subject matter are a nullity.\u201d Burgess v. Gibbs, 262 N.C. 462, 465, 137 S.E.2d 806, 808 (1964).\nFor the reasons discussed above, we hold that (1) petitioners lacked standing to appeal to the superior court from the respondent Board\u2019s decision to issue the special use permit to respondent Mitchell; and (2) that petitioners lack standing to be proper parties to an appeal before this Court.\nBecause of petitioners\u2019 lack of standing, the order appealed from is vacated, and the matter is remanded to the superior court for the entry of an order (1) dismissing the Petition for Writ of Certiorari filed 23 November 2000; and (2) reinstating the ruling of the Board of Adjustment dated 24 October 2000.\nVacated and remanded.\nChief Judge EAGLES and Judge McCULLOUGH concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Wallace, Creech & Sarda, L.L.P., by Peter J. Sarda and Richard P. Nordan, for petitioner-appellees.", "Office of the Durham County Attorney, by Lowell S. Siler, for respondent-appellant City/County of Durham Board of Adjustment.", "Law Office of Brenda M. Foreman, by Brenda M. Foreman, for respondent-appellant Joe Mitchell." ], "corrections": "", "head_matter": "PETER J. SARDA and wife, PATRICIA T. SARDA, Petitioners v. CITY/COUNTY OF DURHAM BOARD OF ADJUSTMENT and JOE MITCHELL, Respondents\nNo. COA02-284\n(Filed 18 February 2003)\nZoning\u2014 appeal of board of adjustment decision \u2014 standing\nPetitioners lacked standing to appeal to superior court a board of adjustment decision to grant a special use permit where petitioners alleged that they were the owners of a residential tract about 400 yards from the proposed paintball playing field, but did not allege that they would suffer special damages distinct from the rest of the community.\nAppeal by Respondents from order entered 22 October 2001 by Judge Naxley L. Cashwell in Durham County Superior Court. Heard in the Court of Appeals 27 January 2003.\nWallace, Creech & Sarda, L.L.P., by Peter J. Sarda and Richard P. Nordan, for petitioner-appellees.\nOffice of the Durham County Attorney, by Lowell S. Siler, for respondent-appellant City/County of Durham Board of Adjustment.\nLaw Office of Brenda M. Foreman, by Brenda M. Foreman, for respondent-appellant Joe Mitchell." }, "file_name": "0213-01", "first_page_order": 243, "last_page_order": 246 }