{ "id": 8527232, "name": "CONCERNED CITIZENS OF DOWNTOWN ASHEVILLE, an Unincorporated Association, JIM F. HUGHES, JOHN A. AUTEN, ROBERT H. JOLLY, Plaintiffs v. BOARD OF ADJUSTMENT OF THE CITY OF ASHEVILLE, Defendant and ASHEVILLE-BUNCOMBE COMMUNITY CHRISTIAN MINISTRY, Intervenor", "name_abbreviation": "Concerned Citizens of Downtown Asheville v. Board of Adjustment", "decision_date": "1989-06-20", "docket_number": "No. 8828SC877", "first_page": "364", "last_page": "367", "citations": [ { "type": "official", "cite": "94 N.C. App. 364" } ], "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": "344 S.E. 2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "281" } ], "opinion_index": 0 }, { "cite": "317 N.C. 51", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4771671 ], "year": 1986, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0051-01" ] }, { "cite": "166 S.E. 2d 78", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "82-83" } ], "opinion_index": 0 }, { "cite": "275 N.C. 155", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558203 ], "year": 1969, "pin_cites": [ { "page": "161-62" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0155-01" ] }, { "cite": "274 S.E. 2d 230", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "301 N.C. 722", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571109, 8571036, 8571133, 8571006, 8571071 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/301/0722-04", "/nc/301/0722-02", "/nc/301/0722-05", "/nc/301/0722-01", "/nc/301/0722-03" ] }, { "cite": "270 S.E. 2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "49 N.C. App. 181", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520172 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/49/0181-01" ] }, { "cite": "300 S.E. 2d 869", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "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, "opinion_index": 0, "case_paths": [ "/nc-app/61/0612-01" ] } ], "analysis": { "cardinality": 331, "char_count": 5378, "ocr_confidence": 0.761, "pagerank": { "raw": 1.5900659886329824e-07, "percentile": 0.6819362827716983 }, "sha256": "ce422a82e62762d0265a96ff5f3d7831afcb82e38c64fa2b895f26c7ee65d3ed", "simhash": "1:0ef6507f636cac54", "word_count": 878 }, "last_updated": "2023-07-14T20:07:12.068465+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Johnson and Phillips concur." ], "parties": [ "CONCERNED CITIZENS OF DOWNTOWN ASHEVILLE, an Unincorporated Association, JIM F. HUGHES, JOHN A. AUTEN, ROBERT H. JOLLY, Plaintiffs v. BOARD OF ADJUSTMENT OF THE CITY OF ASHEVILLE, Defendant and ASHEVILLE-BUNCOMBE COMMUNITY CHRISTIAN MINISTRY, Intervenor" ], "opinions": [ { "text": "ARNOLD, Judge.\nDefendant Board of Adjustment of the City of Asheville contends that plaintiffs lacked standing to seek review of the Zoning Board of Adjustment\u2019s decision. We agree.\nAn appeal from a board of zoning adjustment decision may be taken by any person \u201caggrieved.\u201d N.C.G.S. \u00a7 160A-388(e). Thus, plaintiffs had standing only if they were aggrieved persons within the meaning of the statute. Heery v. Town of Highlands Zoning Board of Adjustment, 61 N.C. App. 612, 300 S.E. 2d 869 (1983). As the court in Heery pointed out, an aggrieved party is one who can show either \u201csome interest in the property affected,\u201d or, if plaintiffs are nearby property owners, they must show \u201cspecial damage\u201d which amounts to \u201ca reduction in the value of [their] property.\u201d Id. at 613, 300 S.E. 2d at 870, citing Pigford v. Board of Adjustment, 49 N.C. App. 181, 270 S.E. 2d 535 (1980), disc. rev. denied and appeal dismissed, 301 N.C. 722, 274 S.E. 2d 230 (1981); Jackson v. Board of Adjustment, 275 N.C. 155, 161-62, 166 S.E. 2d 78, 82-83 (1969).\nIn this case, as in Heery, plaintiffs failed to allege, and the Superior Court failed to find that plaintiffs would be subject to \u201c \u2018special damages\u2019 distinct from the rest of the community.\u201d Heery at 614, 300 S.E. 2d at 870. Plaintiffs allege nothing more than that they are nearby or adjacent property owners. Though this might be sufficient to challenge the validity of an amendment to the ordinance itself in a declaratory judgment action, Godfrey v. Zoning Board of Adjustment, 317 N.C. 51, 66, 344 S.E. 2d 272, 281 (1986), it is insufficient to allege standing under N.C.G.S. \u00a7 160A-388(e). See generally 3 Rathkopf, The Law of Zoning and Planning \u00a7 43.04 at 43-22 (1988).\nThe order appealed from is vacated, and the matter is remanded to the Superior Court for the entry of an order dismissing the petition for writ of certiorari and vacating the writ of certiorari granted.\nVacated and appeal dismissed.\nJudges Johnson and Phillips concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "David E. Matney, III for appellants.", "William F. Slawter for defendant appellee.", "Whalen, Hay, Pitts, Hugenschmidt, Master & Devereux, by Edward C. Hay, Jr. and Barry L. Master, for respondent intervenor appellee." ], "corrections": "", "head_matter": "CONCERNED CITIZENS OF DOWNTOWN ASHEVILLE, an Unincorporated Association, JIM F. HUGHES, JOHN A. AUTEN, ROBERT H. JOLLY, Plaintiffs v. BOARD OF ADJUSTMENT OF THE CITY OF ASHEVILLE, Defendant and ASHEVILLE-BUNCOMBE COMMUNITY CHRISTIAN MINISTRY, Intervenor\nNo. 8828SC877\n(Filed 20 June 1989)\nMunicipal Corporations \u00a7 31.1\u2014 decision to allow permit for shelter for homeless \u2014 no standing of nearby landowners to seek review \u2014 no special damages\nPlaintiffs, an unincorporated association of owners of businesses and real property located on Coxe Avenue in Ashe-ville, lacked standing to seek review of the Zoning Board of Adjustment\u2019s decision to allow a zoning permit for the renovation of an existing structure on Coxe Avenue to provide a shelter for the homeless, since plaintiffs failed to allege and the trial court failed to find that plaintiffs would be subject to \u201cspecial damages\u201d distinct from the rest of the community. N.C.G.S. \u00a7 160A-388(e).\nAPPEAL by plaintiffs from Lewis, Robert D., Judge. Order entered 11 March 1988 in BUNCOMBE County. Heard in the Court of Appeals 15 March 1989.\nPlaintiff, Concerned Citizens of Downtown Asheville, is an unincorporated association whose membership consists of owners of businesses and real property located on and near the southern end of Coxe Avenue in Asheville, North Carolina. Plaintiffs Hughes, Auten and Jolly are each owners of a business and interest in real property located on the southern end of Coxe Avenue.\nOn 16 November 1987 the Zoning Administrator for the City of Asheville issued a zoning permit to Asheville-Buncombe Community Christian Ministry to allow the renovation of an existing structure located at 207 Coxe Avenue, Asheville. The structure is to be used as a shelter for the homeless.\nPursuant to N.C.G.S. \u00a7 160A-388(b), plaintiffs appealed the issuance of the permit to the Asheville Board of Zoning Adjustment. Following a hearing on 17 December 1987, the Board of Zoning Adjustment affirmed the decision of the Zoning Administrator in issuing the permit. In its order dated 5 February 1988 the Board\u2019s findings of fact included: that the property was located in the Commercial Service District; \u201cthat neither \u2018shelters for the homeless,\u2019 nor any other form of lodging for the indigent is specifically allowed as a use within any of the zoning districts as set forth in the Zoning Ordinance\u201d; that the proposed homeless shelter was a \u201ccommunity service\u201d and a residential use and that services and other residential uses are specifically allowed in a Commercial Service District. The Board found that due to a pre-existing use parking and setback requirements had been met, and concluded as a matter of law that \u201cthe proposed facility is an allowed use in the Commercial Service zone.\u201d\nPursuant to N.C.G.S. \u00a7 160A-388(e), plaintiffs filed a petition in the superior court for review in the nature of certiorari. Plaintiffs asked that the court review the record, issue an order reversing the decision of the Board and order that the zoning permit be rescinded. Instead, by order dated 11 March 1988, the superior court affirmed the order of the Board of Adjustment. From this order, plaintiffs appeal.\nDavid E. Matney, III for appellants.\nWilliam F. Slawter for defendant appellee.\nWhalen, Hay, Pitts, Hugenschmidt, Master & Devereux, by Edward C. Hay, Jr. and Barry L. Master, for respondent intervenor appellee." }, "file_name": "0364-01", "first_page_order": 394, "last_page_order": 397 }