An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d   u    r   e   .



                                NO. COA14-4
                      NORTH CAROLINA COURT OF APPEALS

                            Filed: 17 June 2014


WISE RECYCLING, LLC,
     Petitioner,

         v.                                 Johnston County
                                            No. 13 CVS 528
TOWN OF CLAYTON,
     Respondent.


         Appeal by Respondent from Order entered 29 July 2013 by

Judge Thomas H. Lock in Johnston County Superior Court. Heard in

the Court of Appeals 21 May 2014.


         Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan,
         L.L.P., by Lacy H. Reaves and Tobias R. Coleman, for
         Petitioner.

         Parker Poe Adams & Bernstein LLP, by Charles C. Meeker and
         Katherine E. Ross, for Respondent.


         STEPHENS, Judge.


                                  Background

         This case arises from Respondent Town of Clayton’s issuance

of   a    temporary   use   permit   to   Source    Recycling.     The   permit

allowed Source Recycling to make use of certain facilities at

317 Pony Farm Road in Clayton, North Carolina. On 17 September
                                              -2-
2012, counsel for Petitioner Wise Recycling, LLC requested a

written       interpretation           of    the       Town’s     Unified      Development

Ordinance, contending that Source Recycling was in violation of

the     permit.      The      Town’s    planning         director        responded      on    21

September 2012, stating that the permit was properly issued and

offering       a     legal      basis       for       Source     Recycling’s       continued

operation       on     Pony     Farm    Road.         Wise    Recycling     appealed         that

interpretation to the Town’s Board of Adjustment on 5 October

2012.

       The matter was heard before the Town’s Board of Adjustment

on 19 December 2012. Following the hearing, the Town voted to

dismiss Wise Recycling’s appeal “based on the facts that . . .

Wise       Recycling    does     not    have      a    real     affect    [sic]    to    [its]

property value and the fact that [its] property is not adjacent

[to 317 Pony Farm Road].” In a written notice to Wise Recycling

dated 24 January 2013, the Town advised Wise Recycling that its

appeal of the planning director’s interpretation was dismissed.

On    15    February     2013,     Wise      Recycling         petitioned    the     Johnston

County Superior Court for review by way of a writ of certiorari.

In support of its petition, Wise Recycling argued that it “has

standing [because] its business was significantly and negatively

impacted       by      Source     [Recycling]’s              illegal     operation      of      a
                                          -3-
competing   business       less    than    a    mile      from    Wise    [Recycling’s

p]roperty.” The Superior Court granted Wise Recycling’s petition

on 15 February 2013 and ordered a hearing. In the interim, the

Town filed a response to Wise Recycling’s petition, moving to

dismiss the writ on grounds that Wise Recycling “is not a person

aggrieved   [and]    does    not    have        an    interest     in    the   property

affected nor can it show special damages.”

    The hearing occurred on 15 July 2013. After the parties’

presentations, the trial court concluded that Wise Recycling had

standing    to    appeal    the     planning         director’s      interpretation,

reversed the decision of the Board of Adjustment, and remanded

for further proceedings. The trial court entered its written

order on 29 July 2013. The Town appeals that decision.

                                   Discussion

    On appeal, the Town argues that Wise Recycling did not have

standing    to    appeal     the    planning          director’s        interpretation

because it is not an aggrieved person under N.C. Gen. Stat. §§

160A-388,   393    (2013).    In    support          of   its    position,     the   Town

asserts that Wise Recycling has offered no evidence of “special

damages” and points out that Wise Recycling’s property is almost

one mile away from Source Recycling. The Town also asserts that

standing should not be extended to a business competitor as a
                                     -4-
matter of public policy. Although neither party questions the

jurisdiction of this Court to review this matter, we must first

determine whether this case is properly before us for appellate

review. Akers v. City of Mount Airy, 175 N.C. App. 777, 778, 625

S.E.2d    145,   146   (2006)   (“[When    faced   with]   a    jurisdictional

issue, this Court has an obligation to address the issue sua

sponte regardless [of] whether it is raised by the parties.”).

Indeed, the Town asserts as grounds for appellate review that it

“appeals as a matter of right . . . from the final judgment of a

[s]uperior [c]ourt.” This is incorrect.

    As     we    stated   in   Richmond   County   Board   of    Education   v.

Cowell:

            The denial of a motion to dismiss is an
            interlocutory order which is not immediately
            appealable unless that denial affects a
            substantial right of the appellant. The
            appealing   party   bears   the  burden   of
            demonstrating that the order from which he
            or she seeks to appeal is appealable despite
            its interlocutory nature. Thus, the extent
            to which an appellant is entitled to
            immediate interlocutory review of the merits
            of his or her claims depends upon his or her
            establishing that the trial court’s order
            deprives the appellant of a right that will
            be jeopardized absent review prior to final
            judgment.

            . . . .

            A motion to dismiss a party’s claim for lack
            of standing is tantamount to a motion to
                                      -5-
            dismiss for failure to state a claim upon
            which relief can be granted according to
            Rule 12(b)(6) of the North Carolina Rules of
            Civil Procedure. A trial court’s denial of a
            Rule 12(b)(6) motion to dismiss generally
            does not affect a substantial right. Here,
            [the] defendants have failed to show how the
            trial court’s denial of their motion to
            dismiss based upon lack of standing affects
            a substantial right. If a party attempts to
            appeal from an interlocutory order without
            showing that the order in question is
            immediately appealable, we are required to
            dismiss     that    party’s     appeal    on
            jurisdictional grounds.

__   N.C.   App.   __,   __,   739   S.E.2d   566,   568–69   (citations   and

internal quotation marks omitted), disc. rev. denied, __ N.C.

__, 747 S.E.2d 553 (2013).

      The only issue raised by the Town is standing.1 On that

issue, as noted above, the Town offers no rationale for its

appeal from the trial court’s interlocutory order, merely making

the erroneous statement that it appeals from a final judgment as

a matter of right. By denying the Town’s motion to dismiss and



1
  In its reply brief, the Town responds to Wise Recycling’s
argument that this case is not moot by asserting that the case
is moot because the temporary use permit has expired, but
acknowledging that this Court may nonetheless consider the
matter as “capable of repetition, yet evading review.” Because
we dismiss this appeal as interlocutory and “[s]ince the
question [of] whether an appeal is interlocutory presents a
jurisdictional issue,” we lack jurisdiction to review either
argument here. See Akers, 175 N.C. App. at 778, 625 S.E.2d at
146.
                                    -6-
remanding the case to the Board of Adjustment, the trial court

did not finally dispose of this case. Because the Town has not

shown that the trial court’s order affected a substantial right,

we must dismiss this appeal as interlocutory. See Jeffreys v.

Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d

252, 254 (1994) (“It is not the duty of this Court to construct

arguments for or find support for [the] appellant’s right to

appeal from an interlocutory order; instead, the appellant has

the burden of showing this Court that the order deprives the

appellant   of   a   substantial   right   which   would   be   jeopardized

absent a review prior to a final determination on the merits.”).

    DISMISSED.

    Judges STROUD and MCCULLOUGH concur.

    Report per Rule 30(e).
