Agenda - Planning Commission - 04/02/2009

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Zoning Bulletin February 25, 20091 Volume 3 I No.4 )- Permit (the "Permit") to operate an adult establishment on property . . (the "Property") in the city. Those opposed to a grant of the Permit in- cluded: (1) Barbara Glover Mangum, an adjacent property owner who operated a retail construction and yard equipment business; (2) Terry and Deborah Overton, adjacent property owners who operated a bUSI- ness; arid (3) Van Eure, an owner of property in close proximity to the Property who operated a restaurant (collectively, the "Neighbors"). At a hearing on the Permit, the Neighbors presented evidence of the prob- ability of increased traffic, increased water runoff, parking and safety concerns, and adverse secondary effects on their business if the Board granted the Permit. Ultimately, the Board approved the Permit. The Neighbors appealed. The trial court found for the Neighbors and reversed the Board's decision to approve the Permit. The Partners appealed. The Partners moved to have the court dis- miss the Neighbor's challenge. They argued that the Neighbors did not have legal standing to bring the action (i.e.,. did not have the legal right to bring the legal action). The Court of Appeals held that the Neigh- bors lacked standing to challenge the Board's decision. The Court of Appeals vacated and remanded the decision of the trial court. The Neighbors petitioned the Supreme Court of North Carolina, ',' l' asking for its discretionary review of the matter. it" fi DECISION: Reversed; remanded. I. ii :J The Supreme Court of North Carolina held that the Neighbors did n Ii have standing to challenge the Board's issuance of the Permit. Ii ~ !: The court explained that in order to have standing to bring a legal action in court, a party had to show that he or she was injured or that there was' an "immediate or threatened injury" to him or her. In re- gard to challenges of zoning decisions specifically, the court said that an owner of adjoining or nearby lands would have standing to main- tain an action only if: (1) the proposed use was unlawful (e.g., such as where it is prohibited by a valid zoning ordinance); and (2) he/she would sustain "special damage"-"separate and apart from the dam- age the commuIiity as a whole might suffer" -from the proposed use through a reduction in the value of his/her own property. Thus, said the court, the Neighbors would not have standirig to challenge the issuance of the Permit solely because they alleged their property values would be dimiIiished by the ad.ult establishment on the Property. Rather, the Neighbors would only have standing to chal- lenge the issuance of the permit if they could allege both that: (1) the l' proposed adult establishment use was unlawful; and (2) the Neighbors would sustain "special damage"-"separate and apart from the dam- age the commuIiity as a whole might suffer"-from the proposed use @ 2009 Thomson Reuters 11 101