{ "id": 8159584, "name": "BRENDA SMITH, Petitioner v. FORSYTH COUNTY BOARD OF ADJUSTMENT, Respondent, and THE NEW HOPE PRESBYTERIAN CHURCH, Intervenor", "name_abbreviation": "Smith v. Forsyth County Board of Adjustment", "decision_date": "2007-11-06", "docket_number": "No. COA07-212", "first_page": "651", "last_page": "655", "citations": [ { "type": "official", "cite": "186 N.C. App. 651" } ], "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": "649 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639196 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "464", "parenthetical": "citation omitted" }, { "page": "465-66" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0458-01" ] }, { "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": "575 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "831", "parenthetical": "quoting Lloyd v. Town of Chapel Hill, 127 N.C. App. 347, 351, 489 S.E.2d 898, 900 (1997)" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 213", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9190224 ], "year": 2003, "pin_cites": [ { "page": "215", "parenthetical": "quoting Lloyd v. Town of Chapel Hill, 127 N.C. App. 347, 351, 489 S.E.2d 898, 900 (1997)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0213-01" ] }, { "cite": "434 S.E.2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "334 N.C. 496", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529794 ], "year": 1993, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0496-01" ] }, { "cite": "166 S.E.2d 78", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "82" } ], "opinion_index": 0 }, { "cite": "275 N.C. 155", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558203 ], "year": 1969, "pin_cites": [ { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0155-01" ] }, { "cite": "300 S.E.2d 869", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1983, "pin_cites": [ { "page": "870", "parenthetical": "applying N.C. Gen. Stat. \u00a7 160A-388(e), the parallel statute governing city zoning boards" }, { "page": "870" }, { "page": "870" }, { "page": "870" } ], "opinion_index": 0 }, { "cite": "61 N.C. App. 612", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523215 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "613", "parenthetical": "applying N.C. Gen. Stat. \u00a7 160A-388(e), the parallel statute governing city zoning boards" }, { "page": "614" }, { "page": "613" } ], "opinion_index": 0, "case_paths": [ "/nc-app/61/0612-01" ] }, { "cite": "185 N.C. App. 582", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8211509 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "588", "parenthetical": "citation omitted" }, { "page": "590" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0582-01" ] }, { "cite": "574 S.E.2d 474", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511470, 1511275, 1511283, 1511174 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0610-02", "/nc/356/0610-04", "/nc/356/0610-03", "/nc/356/0610-01" ] }, { "cite": "560 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "878" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 320", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9127650 ], "year": 2002, "pin_cites": [ { "page": "324" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0320-01" ] }, { "cite": "405 U.S. 727", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11723565 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "731-32" }, { "page": "641" } ], "opinion_index": 0, "case_paths": [ "/us/405/0727-01" ] }, { "cite": "577 S.E.2d 628", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "parenthetical": "citing Sierra Club v. Morton, 405 U.S. 727, 731-32, 31 L. Ed. 2d 636, 641 (1972)" } ], "opinion_index": 0 }, { "cite": "356 N.C. 675", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511527, 1511629, 1511511, 1511639, 1511292 ], "year": 2003, "pin_cites": [ { "parenthetical": "citing Sierra Club v. Morton, 405 U.S. 727, 731-32, 31 L. Ed. 2d 636, 641 (1972)" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0675-01", "/nc/356/0675-02", "/nc/356/0675-03", "/nc/356/0675-05", "/nc/356/0675-04" ] }, { "cite": "574 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "51" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 110", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249087 ], "year": 2002, "pin_cites": [ { "page": "114" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0110-01" ] } ], "analysis": { "cardinality": 545, "char_count": 10848, "ocr_confidence": 0.713, "pagerank": { "raw": 1.033855067683463e-07, "percentile": 0.5489258254052649 }, "sha256": "7f1901083be071c632a7a4e336fef48ed29012e7c390a847ad2df110424d1e0e", "simhash": "1:c30ddd1b980fcc4c", "word_count": 1756 }, "last_updated": "2023-07-14T19:31:40.090074+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge STROUD concur." ], "parties": [ "BRENDA SMITH, Petitioner v. FORSYTH COUNTY BOARD OF ADJUSTMENT, Respondent, and THE NEW HOPE PRESBYTERIAN CHURCH, Intervenor" ], "opinions": [ { "text": "ARROWOOD, Judge.\nPetitioner Brenda Smith appeals from an order dismissing for lack of standing her petitions for writ of certiorari seeking review of a decision of Respondent-Appellee Forsyth County Zoning Board of Adjustment that affirmed certain decisions of the Forsyth County Zoning Officer. We affirm.\nThe pertinent facts are summarized as follows: Petitioner owns and resides on property located on Harper Road, in the Forsyth County town of Clemmons. Intervenor owns adjoining property on Harper Road. In June 2005, Intervenor applied to the Forsyth County inspections department for a permit to build a church and athletic field. The Forsyth County Uniform Development Ordinance (UDO) distinguishes between neighborhood and community scale churches, with different zoning requirements for each. Under the UDO a neighborhood church is one with a seating capacity of 600 or fewer, and a community church is one with a seating capacity of over 600. In July 2005 a Forsyth County Zoning Officer issued Intervenor a building permit for construction of a neighborhood church.\nPetitioner appealed to Respondent Forsyth County Zoning Board of Adjustment (the Board). Petitioner\u2019s appeal asserted that (1) the Zoning Officer improperly granted Intervenor a permit for a neighborhood church instead of a community church; (2) the Zoning Officer improperly failed to require Intervenor to install a bufferyard around its athletic field; and (3) the Zoning Officer wrongly decided certain issues regarding grading on the church property.\nIn August 2005 the Board conducted a hearing on Petitioner\u2019s appeal. Following the hearing, the Board upheld the Zoning Officer\u2019s classification of the church as a neighborhood scale church and his decision that Intervenor was not required to install a bufferyard around its athletic field. The board found that the Zoning Officer had erred in regards to grading requirements on Intervenor\u2019s lot.\nPrior to the Board\u2019s issuance of a formal written decision, Petitioner filed an original and an amended petition for a writ of cer-tiorari, seeking review of the Board\u2019s decision in Forsyth County Superior Court. After the Board issued its decision, Petitioner refiled her amended petition. The writ was issued on 27 July 2006 by Forsyth County Superior Court Judge Michael E. Helms, and New Hope Church was allowed to intervene in the action. Following a hearing conducted before Superior Court Judge Joseph R. John, Sr., the court on 16 November 2006 entered an order dismissing the writ as improvidently granted, and dismissing Petitioner\u2019s appeal for lack of standing. From this order, Petitioner timely appealed.\nThe dispositive issue is whether Petitioner had standing to pursue her appeal from the Zoning Officer to the Board, and from the Board to Superior Court. The trial court ruled that the record evidence was \u201cinadequate\u201d to show that \u201cPetitioner has suffered or will suffer a reduction in the value of her property as a result of the Zoning Officer\u2019s determinations or of the Decision affirming such determinations,\u201d and, therefore, that Petitioner failed to show that she \u201chas suffered or will be subject to special damages.\u201d On this basis, the court concluded that Petitioner lacked standing as a \u201cperson aggrieved\u201d either under N.C. Gen. Stat. \u00a7 153A-345(e) (2005), or under 1947 N.C. Sess. Laws ch. 677, \u00a7 33 or 34. The court further concluded that, because Petitioner lacked standing, the trial court lacked subject matter jurisdiction over the proceeding. Petitioner argues that the trial court erred in concluding that she had not shown standing. We disagree.\n\u201cThe term [standing] refers to whether a party has a sufficient stake in an otherwise justiciable controversy so as to properly seek adjudication of the matter.\u201d Neuse River Found., Inc. v. Smithfield Foods, Inc., 155 N.C. App. 110, 114, 574 S.E.2d 48, 51 (2002), disc. review denied, 356 N.C. 675, 577 S.E.2d 628 (2003) (citing Sierra Club v. Morton, 405 U.S. 727, 731-32, 31 L. Ed. 2d 636, 641 (1972)). \u201cStanding is a necessary prerequisite to a court\u2019s proper exercise of subject matter jurisdiction[,]\u201d Aubin v. Susi, 149 N.C. App. 320, 324, 560 S.E.2d 875, 878, disc. review denied, 356 N.C. 610, 574 S.E.2d 474 (2002) and \u201cis a question of law which this Court reviews de novo.\u201d Cook v. Union Cty. Zoning Bd. of Adjust., 185 N.C. App. 582, 588, 649 S.E.2d 458, 464 (2007) (citation omitted).\nIn the instant case, Petitioner appealed (1) from the Zoning Officer to the Board, and (2) from the Board to Superior Court. We first consider her standing to appeal from the Zoning Officer to the Board. Appeals to a county board of adjustment from a zoning decision are governed by N.C. Gen. Stat. \u00a7 153A-345(b) (2005), Board of Adjustment, which provides in relevant part that:\n(b) A zoning ordinance or those provisions of a unified development ordinance adopted pursuant to the authority granted in this Part shall provide that the board of adjustment shall hear and decide appeals from and review any order, requirement, decision, or determination made by an administrative official charged with the enforcement of that ordinance. Anv person aggrieved or any officer, department, board, or bureau of the county may take an appeal. . . .\n(emphasis added). Petitioner appealed as an individual and not as an \u201cofficer, department, board, or bureau of the county.\u201d \u201cThus, petitioner[] had standing only if [she was an] aggrieved person[] within the meaning of the statute.\u201d Heery v. Zoning Board of Adjustment, 61 N.C. App. 612, 613, 300 S.E.2d 869, 870 (1983) (applying N.C. Gen. Stat. \u00a7 160A-388(e), the parallel statute governing city zoning boards). Heery held that standing as a \u201cperson aggrieved\u201d requires a showing of \u201cspecial damages\u201d:\n[T]he petitioners failed to allege, and the Superior Court failed to find, that petitioners would be subject to \u201cspecial damages\u201d distinct from the rest of the community. Without a claim of special damages, the petitioners are not \u201caggrieved\u201d persons under N.C. Gen. Stat. \u00a7 160A-388(e), and they have no standing.\nHeery, 61 N.C. App. at 614, 300 S.E.2d at 870. This Court has \u201cdefined \u2018special damage\u2019 as \u2018a reduction in the value of his [petitioner\u2019s] own property.\u2019 \u201d Id. at 613, 300 S.E.2d at 870 (quoting Jackson v. Board of Adjustment, 275 N.C. 155, 161, 166 S.E.2d 78, 82 (1969)). The same standard applies to appeals under N.C. Gen. Stat. \u00a7 153A-345(b).\n[A]ny person aggrieved has standing to appeal the decision of a [county] board of adjustment pursuant to N.C. Gen. Stat. \u00a7 153A-345(b) [(2005)]. ... A person aggrieved must show either \u201csome interest in the property affected,\u201d or, if plaintiffs are nearby property owners, they must show special damage which amounts to \u201ca reduction in the value of [their] property.\u201d\nCook, 185 N.C. App. at 590, 649 S.E.2d at 465-66 (quoting Heery, 61 N.C. App. at 613, 300 S.E.2d at 870) (internal quotations and citations omitted).\nTo establish standing to appeal a zoning decision to the Board, \u201c[a]djoining property owners must present evidence of a reduction in their property values.\u201d County of Lancaster v. Mecklenburg County, 334 N.C. 496, 504 n.4, 434 S.E.2d 604, 610 n.4 (1993) (citation omitted). Mere proximity to the site of the zoning action at issue is insufficient to establish \u201cspecial damages\u201d:\n[The p]etition alleges only that they are the 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.... 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.\nSarda v. Cty. of Durham Bd. of Adjust., 156 N.C. App. 213, 215, 575 S.E.2d 829, 831 (2003) (quoting Lloyd v. Town of Chapel Hill, 127 N.C. App. 347, 351, 489 S.E.2d 898, 900 (1997)).\nIn the instant case, Petitioner\u2019s application to the Board for appeal of the Zoning Officer\u2019s decisions does not allege that the zoning decisions at issue had decreased the value of her property or would do so in the future. Petitioner failed to allege, or show, special damages; therefore, she did not have standing to appeal from the Zoning Officer to the Board. That being so, we have no need to consider Petitioner\u2019s standing to appeal from the Board to Superior Court. We conclude that the trial court did not err in its conclusion that Petitioner lacked standing.\nPetitioner argues that her standing is not dependent on meeting the statutory requirements of G.S. \u00a7 153A-345, and contends that she has standing pursuant to the 1947 enabling legislation granting Forsyth County authority to adopt zoning regulations. In support of her position, Petitioner cites \u00a7 34 which states that \u201cany persons . . . aggrieved by any decision of the Board of Adjustment or any taxpayer or any officer, department, board or bureau of the county may present... a petition\u201d and argues that she has standing as a \u201ctaxpayer.\u201d However,' \u00a7 34 governs appeals to superior court from the county Board, while \u00a7 33, which governs appeals to the Board, states in relevant part that:\nAppeals to the Board of Adjustment mav be taken bv anv person aggrieved by his inability to obtain a building permit, or by the decision of any administrative officer or agency based upon or made in the course of the administration or enforcement of the provisions of the zoning resolution. . . .\nAs discussed above, Petitioner did not allege or show the requisite \u201cspecial damages\u201d to assert standing as a \u201cperson aggrieved.\u201d Accordingly, she lacked standing to appeal to the Board under either G.S. \u00a7 153A-345 or \u00a7 33 of the 1947 Act.\nFor the reasons discussed above, we conclude that the trial court did not err and that its order should be\nAffirmed.\nChief Judge MARTIN and Judge STROUD concur.", "type": "majority", "author": "ARROWOOD, Judge." } ], "attorneys": [ "The Brough Law Firm, by Robert E. Homik, Jr., for Petitioner-Appellant.", "Office of Forsyth County Attorney, by Assistant County Attorney B. Gordon Watkins, III, for Respondent-Appellee Forsyth County.", "Paul C. Shepard for Intervenor-Appellee New Hope Presbyterian Church." ], "corrections": "", "head_matter": "BRENDA SMITH, Petitioner v. FORSYTH COUNTY BOARD OF ADJUSTMENT, Respondent, and THE NEW HOPE PRESBYTERIAN CHURCH, Intervenor\nNo. COA07-212\n(Filed 6 November 2007)\nZoning\u2014 adjoining property owner \u2014 standing to appeal decision \u2014 property damage not alleged\nAdjoining property owners must present evidence of a reduction in their property values to establish standing to appeal a zoning officer\u2019s decision to the board of adjustment. Petitioner here did not do so.\nAppeal by Petitioner from order entered 16 November 2006 by Judge Joseph R. John, Sr., in Forsyth County Superior Court. Heard in the Court of Appeals 18 September 2007.\nThe Brough Law Firm, by Robert E. Homik, Jr., for Petitioner-Appellant.\nOffice of Forsyth County Attorney, by Assistant County Attorney B. Gordon Watkins, III, for Respondent-Appellee Forsyth County.\nPaul C. Shepard for Intervenor-Appellee New Hope Presbyterian Church." }, "file_name": "0651-01", "first_page_order": 681, "last_page_order": 685 }