Who Can Sue to Challenge Granting of a Use Permit?

If a city, county or local municipality grants approval for a special or conditional use permit, a thorny legal problem is who can sue to challenge the decision. In general, it may be said that adjoining landowners are entitled to sue (but, even then, such persons must satisfy other conditions for filing a lawsuit). Other members of the local community may also be able to sue depending on their circumstances.

Generally speaking, anyone entitled to sue must satisfy the rules, conditions and procedures for what is legally called "standing."

In use permit cases and other land use cases, standing is about establishing facts demonstrating that one is an "aggrieved party." This rule is based on North Carolina Gen. Stat. § 160A-400.9(e) which states, in part, that an "... appeal may be taken ... from the commission's action in granting or denying any certificate, which appeals (i) may be taken by any aggrieved party ..." There are levels of appeal that must be followed in sequence. Often, an appeal from a planning commission decision must be conducted before a Board of Adjustment and the next appeal is filed with the superior court in the county. From there, appeals go to the North Carolina Court of Appeals and then, potentially, to the North Carolina Supreme Court.

Typically, an adjoining landowner can demonstrate their status as an "aggrieved party," but not always. Status as a neighboring landowner is not sufficient. What is required is that the landowner have sustained -- or will sustain -- "pecuniary damage to real property in which they have an interest." Pecuniary damage is the same as "money damages" which can be demonstrated by showing a diminished value to the neighboring land or calculating the costs of fixing damage to property like cleaning up a flood or installing noise barriers.

Note that, in land use and use permit cases, the damage/injury must be to the land, not the landowner or other persons. Note further that the damage/injury to a person's land must be specific to the land. That is, to be an "aggrieved person," a landowner must have damage/injury to their land that is distinct and different from the rest of the community.

Finally, a loss in value to one's property alone is not sufficient. The loss in value cannot derive from the mere fact that the neighbor engaged in some sort of activity. Generally, to be "aggrieved," one must have something crossing over or invading one's property like:

• Noxious fumes
• Noise
• Increased traffic affecting ingress and egress or safety
• Above-ground water intrusion
• Pollution to soil and/or underground water
• Potential stay bullets or other objects
• Shadows or obstructions causing loss of sunlight and air circulation
• Heat or sparks that increase the risk of fire
• And more

These same rules apply to others in the community. Thus, a landowner that is not adjoining might still have standing to challenge a use permit authorization as an "aggrieved person" if that person can demonstrate that fumes, noise, traffic, migration of underground pollutants, etc., would injure or damage their property.

The leading North Carolina case with respect to standing in use permit cases is Cherry v. Wiesner, 781 SE 2d 871 (NC Court of Appeals 2016). In that case, Louis Cherry and Marsha Gordon owned a vacant lot in Raleigh's Oakwood neighborhood which is a designated historic district. Because of the historic district designation, the design of new construction must be approved by the Raleigh Historic Development Commission ("the Commission"). Cherry and Gordon wanted to build a "modernist" type home and, before building on their vacant lot, they applied for a certificate of appropriateness to build their new home. When the Commission held hearings to consider the application, various neighbors, including Gail Wiesner (who lived directly across the street) objected to the proposed modernist design because they considered it incongruous with the other houses in the historic district.

After several hearings, the Commission eventually approved the design, but was overruled by the Raleigh Board of Adjustment ("the Board") rejected the design. Wiesner then appealed the Board's ruling to the Superior Court which reversed the Board and reinstated the Commission's approval of the modernist design.

The Superior Court's decision was then appealed by Wiesner. The issue of her standing was raised, and the Court of Appeals held that she was not entitled to appeal the Commission's approval of the "modernist" design even though she was an adjoining landowner. Wiesner had not presented any facts or argument that she was an "aggrieved party" by suffering damage to her property OTHER than a loss of potential value. There was no showing that anything was crossing over onto her property (like noise) or that traffic would be increased. She only argued that her property would lose value based on the incongruent aesthetics of the modernist design. That was insufficient.

For more information, and to schedule a confidential consultation with experienced and dedicated property law attorneys in Charlotte, contact Arnold & Smith, PLLC. Use our “Contact” page or give us a call at 704-370-2828. We handle land use, zoning and condemnation legal matters in Mecklenburg County and elsewhere in North Carolina. We have offices in Charlotte, Lake Norman, and Union County.