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  "name": "CHARLIE CASPER, RICHARD LESSARD AND M. KATHLEEN LESSARD, WILLIAM MURRAY AND MARY MURRAY, JEFFREY SCHEURING AND MARIE SCHEURING, WILLIAM B. SUTTON AND ANNETTE SUTTON, Petitioners v. CHATHAM COUNTY AND THE CHATHAM COUNTY COMMISSIONERS, Respondents; JESSE FEARRINGTON, EARL THOMAS, DR. LESLIE YOW AND THE MOUNT PLEASANT UNITED METHODIST CHURCH BOARD OF TRUSTEES, Intervenor-Respondents",
  "name_abbreviation": "Casper v. Chatham County",
  "decision_date": "2007-10-16",
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  "casebody": {
    "judges": [
      "Judges HUNTER and JACKSON concur."
    ],
    "parties": [
      "CHARLIE CASPER, RICHARD LESSARD AND M. KATHLEEN LESSARD, WILLIAM MURRAY AND MARY MURRAY, JEFFREY SCHEURING AND MARIE SCHEURING, WILLIAM B. SUTTON AND ANNETTE SUTTON, Petitioners v. CHATHAM COUNTY AND THE CHATHAM COUNTY COMMISSIONERS, Respondents; JESSE FEARRINGTON, EARL THOMAS, DR. LESLIE YOW AND THE MOUNT PLEASANT UNITED METHODIST CHURCH BOARD OF TRUSTEES, Intervenor-Respondents"
    ],
    "opinions": [
      {
        "text": "WYNN, Judge.\nTo appeal the grant of a conditional use permit, a party must allege in his petition how the value or enjoyment of his land has been or will be adversely affected and prove that he will sustain a pecuniary loss. Here, because Petitioners failed to allege special damages in their petition, we affirm.\nRespondents Jesse Fearrington and Earl Thomas seek to develop property in Chatham County that they own or have contracted to buy from Respondents Leslie Yow and the Mount Pleasant United Methodist Church. On 17 April 2006, Fearrington filed an application for a conditional use district and a conditional use permit for a 29.6 acre specialty retail site known as \u201cFearrington Place,\u201d to be developed on U.S. 15-501 and Morris Road in Chatham County.\nOn 15 May 2006, the Chatham County Board of Commissioners held separate public hearings for the requested conditional use district and conditional use permit. Petitioners, neighboring property owners to the proposed development, appeared at the hearing and argued against the issuance of the conditional use permit. On 11 July 2007, the Chatham County Planning Board recommended approval of the proposed conditional use district and the conditional use permit.\nOn 17 July 2006, the Board of Commissioners agreed with the advisory Planning Board that the proposed conditional use district and conditional use permit were in conformity with the Land Use Plan and met the five required findings under the Chatham County Zoning Ordinance. Accordingly, the Board of Commissioners adopted an Ordinance Amending the Zoning Ordinance of Chatham County and approved Fearrington\u2019s requested conditional use permit.\nPursuant to N.C. Gen. Stat. \u00a7 153A-345(e) (2005), Petitioners filed a Petition for Writ of Certiorari on 25 July 2006, seeking review of the Board of Commissioner\u2019s decision to grant the conditional use permit. On 14 November 2006, the trial court dismissed the petition on the basis that Petitioners lacked standing and affirmed the decision of the Board of Commissioners.\nPetitioners appeal to this Court contending that the trial court erred by: (I) dismissing the petition for writ of certiorari and (II) concluding that the Board of Commissioners grant of the conditional use permit was supported by substantial, material, and competent evidence in the record.\nI.\nPetitioners first argue that the trial court erred by dismissing their petition on the grounds that Petitioners failed to allege special damages and therefore lacked standing to challenge the grant of the conditional use permit. We disagree.\nOur General Statutes provide that any person aggrieved by the granting of a special use permit or conditional use permit may appeal. See N.C. Gen. Stat. \u00a7 153A-340(cl) (2005) (providing that \u201cthe board of adjustment, the planning board, or the board of commissioners may issue special use permits or conditional use permits\u201d); N.C. Gen. Stat. \u00a7 153A-345(b) (2005). (\u201cAny person aggrieved . . . may take an appeal.\u201d). However, to be considered an \u201caggrieved person\u201d and thus have standing to seek review, a party must claim special damages, distinct from the rest of the community. Sarda v. City/Cty. of Durham Bd. of Adjust., 156 N.C. App. 213, 214, 575 S.E.2d 829, 830-31 (2003). \u201cSpecial damages are defined as a reduction in the value of his [petitioner\u2019s] own property.\u201d Id. at 215, 575 S.E.2d at 831 (internal citation omitted). Additionally,\n[n]ot only is it the petitioner\u2019s burden to prove that he will sustain a pecuniary loss, but he must also allege the facts on which [the] claim of aggrievement is based .... Once the petitioner\u2019s aggrieved status is properly put in issue, the trial court must, based on the evidence presented, determine whether an injury has resulted or will result from [the] zoning action.\nKentallen, Inc. v. Hillsborough, 110 N.C. App. 767, 769, 431 S.E.2d 231, 232 (1993) (internal citations and quotations omitted).\nTo have standing to seek review of the granting of a conditional use permit, a petitioner must first allege \u201cthe manner in which the value or enjoyment of [petitioner\u2019s] land has been or will be adversely affected.\u201d Id. (citation omitted). We have held that \u201c[e]xamples 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.\u201d Id. at 769-70, 431 S.E.2d at 232. However, the \u201cmere averment that [petitioners] own land in the immediate vicinity of the property for which the special use permit is sought, absent any allegation of special damages ... in their Petition, is insufficient to confer standing upon them.\u201d Sarda, 156 N.C. App. at 215, 575 S.E.2d at 831 (quotation omitted) (citing Lloyd v. Town of Chapel Hill, 127 N.C. App. 347, 351, 489 S.E.2d 898, 900 (1997)); Kentallen, 110 N.C. App. at 770, 431 S.E.2d at 233 (holding that petitioner\u2019s allegation that it is the \u201cowner of adjoining property\u201d does not satisfy the pleading requirement).\nIn this case, Petitioners alleged in their petition only that they \u201cown property either abutting or near the property which is the subject matter of the re-zoning and conditional use permit.\u201d Because Petitioners failed to allege any damages whatsoever, much less any special damages, the trial court correctly concluded that Petitioners lacked standing. Accordingly, we affirm.\nII.\nPetitioners next contend that the trial court erred by concluding that the decision of the Board of Commissioners granting the conditional use permit was supported by substantial, material, and competent evidence in the record as a whole. Having found Petitioners lack standing, we will not consider this issue.\nIt is well established that \u201c[i]n any case or controversy before the North Carolina courts, subject matter jurisdiction exists only if a plaintiff has standing.\u201d Sarda, 156 N.C. App. at 215, 575 S.E.2d at 831 (quoting 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 Id. (citing State v. Linemann, 135 N.C. App. 734, 739, 522 S.E.2d 781, 785 (1999)) (internal quotation omitted). Accordingly, we dismiss this assignment of error.\nAffirmed in part, dismissed in part.\nJudges HUNTER and JACKSON concur.\n. Kentallen, Inc. v. Hillsborough, 110 N.C. App. 767, 769, 4331 S.E.2d 231, 232 (1993).\n. The attorney for Chatham County and the Chatham County Commissioners filed a motion giving notice of the County\u2019s intention not to defend the judgment on appeal, and the court allowed the County attorney to withdraw by order entered 15 February 2007.\n. Our Supreme Court has noted that \u201c{a}s the statute implies, the terms \u2018special use\u2019 and \u2018conditional use\u2019 are used interchangeably . . . and a conditional use or a special use permit \u2018is one issued for a use which the ordinance expressly permits in a designated zone upon proof that certain facts and conditions detailed in the ordinance exist.\u2019 \u201d Coastal Ready-Mix Concrete co. v. Bd. of Comm\u2019rs, 299 N.C. 620, 623, 265 S.E.2d 379. 381 (1980) (internal citation omitted).",
        "type": "majority",
        "author": "WYNN, Judge."
      }
    ],
    "attorneys": [
      "Northen Blue, LLP, by David M. Rooks, III, for plaintiffs-appellants.",
      "Bradshaw & Robinson, LLP, by Nicolas P. Robinson, for inter-venor-respondents."
    ],
    "corrections": "",
    "head_matter": "CHARLIE CASPER, RICHARD LESSARD AND M. KATHLEEN LESSARD, WILLIAM MURRAY AND MARY MURRAY, JEFFREY SCHEURING AND MARIE SCHEURING, WILLIAM B. SUTTON AND ANNETTE SUTTON, Petitioners v. CHATHAM COUNTY AND THE CHATHAM COUNTY COMMISSIONERS, Respondents; JESSE FEARRINGTON, EARL THOMAS, DR. LESLIE YOW AND THE MOUNT PLEASANT UNITED METHODIST CHURCH BOARD OF TRUSTEES, Intervenor-Respondents\nNo. COA07-271\n(Filed 16 October 2007)\n1. Zoning\u2014 conditional use permit \u2014 standing\u2014special damages required\nThe trial court correctly concluded that petitioners lacked standing to challenge a conditional use permit where they did not allege special damages distinct from the rest of the community. They alleged only that they own property abutting or near the property which is the subject matter of the permit.\n2. Zoning\u2014 conditional use permit \u2014 standing\nThe question of whether the issuance of a conditional use permit was supported by the evidence was not considered where the plaintiffs lacked standing.\nAppeal by petitioners from judgment and order entered 14 November 2006 by Judge Orlando F. Hudson, Jr. in Superior Court, Chatham County. Heard in the Court of Appeals 18 September 2007.\nNorthen Blue, LLP, by David M. Rooks, III, for plaintiffs-appellants.\nBradshaw & Robinson, LLP, by Nicolas P. Robinson, for inter-venor-respondents."
  },
  "file_name": "0456-01",
  "first_page_order": 486,
  "last_page_order": 490
}
