              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-1292

                              Filed: 21 November 2017

Mecklenburg County, No. 2015-CVS-20180

THE CHERRY COMMUNITY ORGANIZATION, Plaintiff,

             v.

THE CITY OF CHARLOTTE; THE CITY COUNCIL FOR THE CITY OF
CHARLOTTE; and MIDTOWN AREA PARTNERS II, LLC, Defendants.


      Appeal by plaintiff from order entered 15 August 2016 by Judge Daniel A.

Kuehnert in Mecklenburg County Superior Court. Heard in the Court of Appeals 17

May 2017.


      James, McElroy & Diehl, P.A., by Jon P. Carroll, John R. Buric, and Preston
      O. Odom, III, for plaintiff-appellant.

      Charlotte City Attorney’s Office, by Senior Assistant City Attorney Terrie
      Hagler-Gray and Assistant City Attorney Daniel E. Peterson, and Midtown
      Area Partners II, LLC, by Roy H. Michaux, Jr.


      MURPHY, Judge.


      The Cherry Community Organization (“CCO”) appeals from the trial court’s

order granting the City of Charlotte and the City Council’s (collectively, “Charlotte”)

Motion for Summary Judgment, granting Midtown Area Partners II, LLC’s (“MAP”)

Motion for Summary Judgment, and denying CCO’s Motion for Summary Judgment.

Specifically, CCO maintains: (1) Charlotte’s approval of an oral amendment made to

MAP’s rezoning petition violated its ordinance and was arbitrary and capricious; and
                         CHERRY CMTY. ORG. V. CITY OF CHARLOTTE

                                       Opinion of the Court



(2) Charlotte’s violation of city ordinances and N.C.G.S. § 160A-383 renders the

zoning amendment null and void. However, because we conclude that CCO failed to

show it had standing to maintain its declaratory judgment action, we dismiss this

appeal and need not reach the issues raised by CCO.

                                         Background

       CCO is a nonprofit organization that endeavors to protect the residential

character, safety, and stability of, as well as the affordable housing within, the Cherry

Community (“Cherry”) – a historically African American neighborhood located in the

Midtown Morehead Cherry District of Charlotte. In 1999 and 2012, respectively,

Charlotte adopted the Cherry Small Area Plan and the Midtown Morehead Cherry

Area Plan (the “MMC Area Plan”) to guide land-use decisions in Cherry.

       The real property (the “Parcels”) at issue in this case involves four parcels

owned by MAP in and around Cherry.1                  In August 2014, MAP submitted an

application to Charlotte (“Initial Rezoning Petition”) to rezone the Parcels from

general-use districts to mixed-use development districts in furtherance of plans to

construct a mixed-use development, which was to contain office, retail, hotel, and

residential spaces. Specifically, MAP proposed constructing a 270,000 square foot




       1  Previously, three of the parcels were owned by StoneHunt. MAP and StoneHunt, LLC
entered into a Joint Venture Agreement to develop their adjacent properties in a mixed-use
development, with MAP holding a majority interest in the Joint Venture. Charlotte and MAP’s brief
notes that, since that time, “StoneHunt, LLC conveyed its three parcels to [MAP] on February 6, 2017
and MAP is authorized to pursue the development of the [Parcels].”

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                     CHERRY CMTY. ORG. V. CITY OF CHARLOTTE

                                  Opinion of the Court



building, 187,450 square foot parking structure, and 8 single-family attached

dwelling units. The building’s then-proposed height was 119 feet.

      Two community meetings were held to discuss the nature of the proposed

rezoning, and CCO filed a Protest Rezoning Petition urging Charlotte to deny MAP’s

Initial Rezoning Petition.2    MAP thereafter submitted an Amended Rezoning

Application (the “First Amended Petition”) in which it increased the size of the

rezoning site from 1.698 to 1.99 acres and requested that MAP be given five-year

vested rights regarding its rezoning site plan.

      On 12 February 2015, MAP submitted a Second Amended Rezoning

Application, which changed the requested zoning of the Parcels “to B-2 (PED-O), UR-

C (PED-O) and R-8 MF (PED-O),” with five-year vested rights. On the basis of the

amendment, a new community meeting was held on 4 March 2015. It is this Second

Amended Petition (the “Rezoning Petition”) that is at issue in this case.

      Charlotte held a public hearing on the Rezoning Petition on 20 April 2015.

Representatives of MAP and CCO attended and commented on the Rezoning Petition.

Charlotte’s Planning Department staff also commented that: (1) MAP’s proposed

development was inconsistent with the Pedestrian Zoning Overlay District (“PED

Overlay”) requirements that limit buildings in the area to a maximum height of 100

feet; (2) the proposed development was inconsistent with the MMC Area Plan


      2 CCO owns one property across from the MAP Project. The area of the MAP Project
immediately across from that property is designated for eight townhomes.

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                     CHERRY CMTY. ORG. V. CITY OF CHARLOTTE

                                 Opinion of the Court



recommendations relating to the maximum permissible building height, street

setbacks, streetscapes, and residential density; and (3) the proposed parking

structure would encroach on a portion of the area that the MMC Area Plan

recommended for residential development.

      By the time the Rezoning Petition came on for a vote before Charlotte at its

meeting, MAP lowered the projected height of its building from 119 feet to 106 feet,

which was still 6 feet over the maximum height permitted by the PED Overlay. The

motion to approve the Rezoning Petition failed.

      Several hours later, prior to adjourning the meeting, MAP agreed to bring the

building’s height down to a compliant 100 feet. Accordingly, Charlotte passed a

motion to “reconsider” the Rezoning Petition as orally amended at the next scheduled

meeting. At the next meeting on 28 September 2015, Charlotte voted 10-to-1 against

sending the orally amended Rezoning Petition back to the Zoning Committee for a

recommendation, and 10-to-1 in favor of rezoning the Parcels as outlined.

      CCO petitioned the Mecklenburg County Superior Court for Writ of Certiorari

and later added a claim for declaratory judgment against Charlotte and MAP. After

the trial court dismissed CCO’s certiorari petition, all parties moved for summary

judgment on CCO’s declaratory judgment claim. On 15 August 2016, the trial court

granted summary judgment in favor of Charlotte and MAP and dismissed the case

with prejudice. CCO timely appealed.



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                        CHERRY CMTY. ORG. V. CITY OF CHARLOTTE

                                    Opinion of the Court



                                        Standing

      Typically, landowners may use their property as they wish, free from the

interference of the government. However, our Supreme Court has held that lawful

zoning ordinances are an exercise of the State’s police powers. See e.g., Turner v. City

of New Bern, 187 N.C. 541, 549, 122 S.E. 469, 474 (1924). The interference by the

State, by exercising its police powers, is the pinnacle of intrusion on private property

rights by the government. Accordingly, our Courts appropriately have set a high bar

for third parties to establish standing to bring actions relating to the exercise of police

powers between the State and its citizens. CCO does not clear the bar to allow it to

privately exercise Charlotte’s police power over MAP.

      As a preliminary matter, we must address Charlotte and MAP’s assertion that

CCO lacks standing to prosecute this declaratory judgment action. Already, LLC v.

Nike, Inc., 568 U.S. 85, 90-91, 184 L. Ed. 2d 533, ___ (2013) (“We have repeatedly held

that an actual controversy must exist not only at the time the complaint is filed, but

through all stages of the litigation.” (citation and internal quotation marks omitted));

see Burgess v. Gibbs, 262 N.C. 462, 465, 137 S.E.2d 806, 808 (1964) (“A universal

principle as old as the law is that the proceedings of a court without jurisdiction of

the subject matter are a nullity.”). Standing must be maintained throughout the

entirety of the suit.    Charlotte and MAP contend that CCO has not forecasted

evidence that it sustained special damages as a result of the rezoning at issue that



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                         CHERRY CMTY. ORG. V. CITY OF CHARLOTTE

                                         Opinion of the Court



are distinct from the rest of the community.3 We agree and therefore modify and

affirm the decision of the trial court to dismiss CCO’s claims and, as a result, we need

not reach the merits of CCO’s appeal.

       Standing refers to “[w]hether a party has a sufficient stake in an otherwise

justiciable controversy” so as to properly seek adjudication of a matter, Sierra Club

v. Morton, 405 U.S. 727, 731-32, 31 L. Ed. 2d 636, 641 (1972), and it “is a necessary

prerequisite to a court’s proper exercise of subject matter jurisdiction,” Thrash Ltd.

P’ship v. Cty. of Buncombe, 195 N.C. App. 678, 680, 673 S.E.2d 706, 708 (2009)

(citation omitted). As standing is a question of law, we review the issue of standing

de novo, Cherry v. Wiesner, ___ N.C. App. ___, ___, 781 S.E.2d 871, 876, disc. review

denied, ___ N.C. ___, 792 S.E.2d 779 (2016), and the party invoking jurisdiction, in

this case CCO, bears the burden of establishing standing, Thrash Ltd. P’ship, 195

N.C. App. at 680, 673 S.E.2d at 708.

       Specifically, “[s]ince standing is a jurisdictional requirement, the party seeking

to bring [a] claim before the court must include allegations which demonstrate why

she has standing in the particular case[.]” Wiesner, ___ N.C. App. at ___, 781 S.E.2d

at 877. In establishing the elements of standing, “each element must be supported

in the same way as any other matter on which [CCO] bears the burden of proof, i.e.,


       3   Charlotte and MAP also argue on appeal that CCO failed to properly elect its Board of
Directors in accordance with its bylaws and therefore the Board of Directors could not have properly
authorized this litigation. We need not reach this contention, however, as we resolve this issue on the
basis of insufficient evidence of special damages.

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                        CHERRY CMTY. ORG. V. CITY OF CHARLOTTE

                                   Opinion of the Court



with the manner and degree of evidence required at the successive stages of the

litigation.” Id. at ___, 781 S.E.2d at 877 (quoting Neuse River Found, 155 N.C. App.

at 113, 574 S.E.2d at 51) (emphasis added).

      A party only has standing to challenge a zoning ordinance in an action for

declaratory judgment when it “has a specific personal and legal interest in the subject

matter affected by the zoning ordinance and . . . is directly and adversely affected

thereby.” Taylor v. City of Raleigh, 290 N.C. 608, 620, 227 S.E.2d 576, 583 (1976)

(citations omitted).     In this way, the standing requirement for an action for

declaratory judgment is analogous to the requirement that a party seeking review of

a municipal decision by writ of certiorari suffer damages that are “distinct from the

rest of the community.” Compare Heery v. Zoning Bd. of Adjustment, 61 N.C. App.

612, 614, 300 S.E.2d 869, 870 (1983) (holding that petitioners failed to allege that

they would be subject to special damages distinct from the rest of the community),

with Wiesner, ___ N.C. App. at ___, 781 S.E.2d at 880 (holding that allegations that

fail to demonstrate special damages distinct to respondent and instead reference

generalized damage to the overall neighborhood are insufficient to establish a party

has standing to sue).

      Although owning property immediately adjacent to or within close proximity

of the subject property is not in and of itself sufficient to plead special damages, “it

does bear some weight on the issue of whether the complaining party has suffered or



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                      CHERRY CMTY. ORG. V. CITY OF CHARLOTTE

                                   Opinion of the Court



will suffer special damages distinct from those damages to the public at large.”

Mangum v. Raleigh Bd. of Adjust., 362 N.C. 640, 669 S.E.2d 279, 283 (2008); see also

Vill. Creek, 135 N.C. App. at 486, 520 S.E.2d at 796 (citing Godfrey v. Zoning Bd. of

Adjustment, 317 N.C. 51, 66, 344 S.E.2d 272, 281 (1986), for the proposition that

“owners of property in the adjoining area affected by [an] ordinance[ ] are parties in

interest entitled to maintain [a declaratory judgment] action” (citation and internal

quotation marks omitted)).

      Specifically, this Court has recognized that “[e]xamples of adequate pleadings

include allegations that the rezoning would cut off the light and air to the petitioner’s

property, increase the danger of fire, increase the traffic congestion and increase the

noise level.” Wiesner, ___ N.C. App. at ___, 781 S.E.2d at 877. Further, the owner of

property has standing to maintain a legal action to prevent a proposed use of nearby

or adjacent property where he will suffer a reduction in the value of his property

pursuant to a proposed use that is prohibited by a valid zoning ordinance. Jackson

v. Guilford Cty. Bd. of Adjustment, 275 N.C. 155, 161, 166 S.E.2d 78, 82 (1969).

       “Once the petitioner’s aggrieved status is properly put in issue, the trial court

must then, based on the evidence presented, determine whether an injury has resulted

or will result from the zoning action.” Id. at ___, 781 S.E.2d at 877 (emphasis added)

(quoting Kentallen, Inc. v. Town of Hillsborough, 110 N.C. App. 767, 769-70, 431

S.E.2d 231, 232 (1993) (citations, quotation marks, and brackets omitted)).



                                          -8-
                     CHERRY CMTY. ORG. V. CITY OF CHARLOTTE

                                  Opinion of the Court



      In the instant case, CCO pleaded in its complaint that it:

             is an aggrieved party who owns real property immediately
             adjacent to and/or in close proximity with the subject
             property, and will suffer special damages in the form of
             increased noise, traffic and parking, decreased visibility
             due to the height of the proposed project, diminution in the
             peaceful    residen[tial]   character    of   the   Cherry
             neighborhood, and a reduction in the value of [CCO’s] real
             property if MAP is allowed to proceed as approved by the
             City Council. Accordingly, [CCO’s] damages are distinct
             from the community at large.

      In comparing CCO’s pleadings with the guidelines embraced by Wiesner, it is

clear that CCO met the minimum pleading requirements of standing to survive a

motion to dismiss in accordance with Rule 12(b)(6) of the North Carolina Rules of

Civil Procedure in generally alleging special damages.        However, the evidence

submitted before the Superior Court is insufficient to show that CCO has or will

suffer any individual harm as a result of the rezoning such that CCO is entitled to

survive Charlotte’s and MAP’s motion for summary judgment. See Wiesner, ___ N.C.

App. at ___, 781 S.E.2d at 877 (holding that the plaintiff must establish each element

“with the manner and degree of evidence required at the successive stages of the

litigation” (emphasis added)).

      In its brief, CCO submits that it proffered evidence of the specific harm it will

suffer due to its proximity to the rezoned property. To support its contention, CCO

refers this Court to the following record evidence of special harm: (1) the pleading

quoted above; (2) page 167 of the record, wherein Dr. Bittle-Patton was speaking at


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                      CHERRY CMTY. ORG. V. CITY OF CHARLOTTE

                                   Opinion of the Court



the required public hearing before the City Council on the Rezoning Petition; (3)

pages 98-100 of the transcript, which record CCO’s argument at the summary

judgment hearing pertaining the issue of standing; and (4) exhibits 5, 16, 32, and 40.

However, a close inspection of these materials reveals that they are utterly devoid of

any actual proof of special damages. We address each in turn.

      First, although relevant to surviving a motion to dismiss, CCO’s pleading does

not evince that a harm will result from the rezoning. See N.C. R. Civ. P. 56(e) (“When

a motion for summary judgment is made and supported as provided in this rule, an

adverse party may not rest upon the mere allegations or denials of his pleading, but

his response, by affidavits or as otherwise provided in this rule, must set forth specific

facts showing that there is a genuine issue for trial.” (emphasis added))

      Furthermore, to the extent that CCO asserts in its complaint that it will suffer

a reduction in the value of the property, which would be adequate to establish

standing according to Jackson v. Guilford County Board of Adjustment, it has failed

to provide the trial court or this Court with any evidence in support of that assertion.

In fact, Dr. Sylvia Bittle-Patton, designated CCO’s 30(b)(6) representative, testified

during her deposition that “I don’t say we would lose tenants because of the [MAP

Project] because people need affordable housing. And that’s scarce in the city.”

Therefore, by CCO’s own admission, it would not lose any tenants as a result of the

MAP Project. Accordingly, we cannot conclude CCO has standing on this basis.



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                     CHERRY CMTY. ORG. V. CITY OF CHARLOTTE

                                  Opinion of the Court



      Second, Dr. Bittle-Patton’s criticisms at the public hearing prior to Charlotte’s

meetings were limited to concerns about the height of the proposed building – then a

projected 119 feet – as it surpassed the 100 foot height allowed by the PED overlay.

That concern was rectified by lowering the proposed height of the building to a

compliant 100 feet. Dr. Bittle-Patton at no point alleged that the rezoning risked

increased noise, traffic, or parking. Therefore, Dr. Bittle-Patton’s comments are not

evidence of any special harm that CCO stands to suffer from the rezoning.

      Third, in regard to its oral argument before the trial court, CCO specifically

stated:

             Our folks have a piece of property that they own that is
             right next to the subdivision. So I think that they have
             satisfied the requirements of being an aggrieved party, an
             affected party that has standing to bring this claim. So I
             think that for those reasons that we've got the standing
             that we need to be here.

This assertion is also insufficient to prove that harm will ensue from rezoning

because, as we already explained, owning property immediately adjacent to or in the

vicinity of the subject property is inadequate in and of itself to establish special

damages and, in turn, standing.

      Finally, in terms of CCO’s documentary exhibits, CCO failed to provide this

Court with exhibit 32 or 40, which it submits as proof that it will suffer special

damages from the rezoning. Therefore, we cannot evaluate whether these exhibits

are an adequate basis for concluding that special harm will result to CCO from the


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                       CHERRY CMTY. ORG. V. CITY OF CHARLOTTE

                                     Opinion of the Court



rezoning. See Tucker v. City of Kannapolis, 159 N.C. App. 174, 176, 582 S.E.2d 697,

698 (2003) (“As appellant[ ], plaintiff[ ] bore the burden of ensuring that all necessary

information was included in the record on appeal as required by Rule 9.”)4

        As for exhibits 5 and 16, on which CCO also relies, those exhibits fail to prove

harm.       Exhibit 5 is the “Minutes of Special Meeting of The Cherry Community

Organization” from 4 August 2005.           The page and a half of minutes lists the

individuals who were present, notes the appointment of a chairman and secretary,

records the reading of the Notice of Special Meeting, remarks that the purpose of the

meeting was to vote on a proposal to sell certain parcels of land and to finance the

sales price, observes that the motion on that business was unanimously approved,

directs Vice-President Virginia Bynum to sign the documents necessary to complete

the transaction, and documents that CCO accepts and intends to draft a managerial

contract with the purchasing developer. Nothing in Exhibit 5, therefore, speaks to or

demonstrates that CCO will suffer special damages from rezoning.

        Exhibit 16 is the minutes from the 28 September 2015 meeting at which

Charlotte reconvened to consider the Rezoning Petition after MAP lowered the

proposed height of the building from 119 to 106 feet. Among other things, those

minutes include one Councilmember’s objection to the Petition on the basis that

certain aspects of the proposal were inconsistent with PED overlay. However, this


        4We note that CCO never requested that this Court allow it to supplement the record on
appeal so as to include these or any other materials.

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                      CHERRY CMTY. ORG. V. CITY OF CHARLOTTE

                                   Opinion of the Court



Court has once again been unable to find anything in those minutes that serves as

evidence sufficient to survive summary judgment that CCO will suffer special

damages from rezoning.

      Simply stated, CCO’s forecast of evidence of special damages consists of

nothing more than conclusory, unsupported allegations that certain damages will

ensue coupled with evidence that, at one point, the proposed development plan

included a building that was taller than that which is permitted in the area. The

latter point was rendered moot prior to CCO filing its complaint by MAP’s decision to

lower the height of its development to a compliant 100 feet.

      Therefore, CCO has failed to point us to any record evidence to meet its burden

of production at summary judgment that CCO will suffer special damages distinct

from the rest of the community by rezoning, nor can we find any. Accordingly, we

conclude that CCO has failed to establish it has standing to maintain its action for

declaratory judgment.

      We do not reach CCO’s remaining contentions as it has not shown it has

standing to raise them. See, e.g., Bigger v. Arnold, 221 N.C. App. 662, 665, 728 S.E.2d

437, 439 (2012) (“Plaintiff lacks standing to appeal because he is not a party aggrieved

by the trial court's order. Accordingly, we do not reach the other issues in the case.”);

Estate of Apple ex rel. Apple v. Commercial Courier Exp., Inc., 168 N.C. App. 175, 181,

607 S.E.2d 14, 18 (2005) (“Finally, as we have concluded plaintiff does not have



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                     CHERRY CMTY. ORG. V. CITY OF CHARLOTTE

                                     Opinion of the Court



standing to contest the compromise and settlement agreement between defendants

and the medical provider, we do not reach the issue of whether the Commission had

to approve the settlement agreement under the facts of this case.”); Matter of Ezzell,

113 N.C. App. 388, 392, 438 S.E.2d 482, 484 (1994) (“Although Ezzell's argument may

have merit, we do not reach the issue he attempts to raise because he does not have

standing to raise the issue.”); Boone v. Boone, 27 N.C. App. 153, 154, 218 S.E.2d 221,

222-23 (1975) (“We do not reach the questions raised by the assignments of error for

the reason that defendant has no standing to raise the questions.”) Therefore, we

decline to reach the merits of CCO’s appeal, and we dismiss this appeal for lack of

subject matter jurisdiction.

                                       Conclusion

      For the foregoing reasons, we conclude that CCO lacks standing to prosecute

its action for declaratory judgment. Accordingly, we modify and affirm the trial

court’s dismissal of CCO’s claims.

      MODIFIED AND AFFIRMED.

      Judge HUNTER, JR concurs in a separate opinion.

      Judge DAVIS concurs in the result only.




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CHERRY CMTY. ORG. V. CITY OF CHARLOTTE

           Opinion of the Court




                  - 15 -
 No. COA16-1292 – Cherry Cmty. Org. v. City of Charlotte


       HUNTER, JR., Robert N., concurring in a separate opinion.


      I write separately to concur in the result only.

      Generally, the North Carolina Constitution grants standing to anyone who

suffers harm. “All courts shall be open; [and] every person for an injury done him in

his lands, goods, person, or reputation shall have remedy by due course of law . . . .”

Mangum v. Raleigh Bd. of Adjust., 362 N.C. 640, 642, 669 S.E.2d 279, 281-82 (2008)

(quoting N.C. Const. art. I, § 18).

             The rationale of [the standing rule] is that only one with a
             genuine grievance, one personally injured by a statute, can
             be trusted to battle the issue. The gist of the question of
             standing is whether the party seeking relief has alleged
             such a personal stake in the outcome of the controversy as
             to assure that concrete adverseness which sharpens the
             presentation[s] of issues upon which the court so largely
             depends for illumination of difficult constitutional
             questions.

Id. at 642, 669 S.E.2d at 282 (quoting Stanley v. Dep’t of Conservation & Dev., 284

N.C. 15, 28, 199 S.E.2d 641, 650 (1973)) (internal quotation marks omitted).

“[S]tanding relates not to the power of the court but to the right of the party to have

the court adjudicate a particular dispute.” Cherry v. Wiesner, ___ N.C. App. ___, ___,

781 S.E.2d 871, 876 (2016). “It is not necessary that a party demonstrate that injury

has already occurred, but a showing of ‘immediate or threatened injury’ will suffice

for purposes of standing.” Mangum at 642-43, 669 S.E.2d at 282 (quoting River Birch

Assocs. v. City of Raleigh, 326 N.C. 100, 129, 388 S.E.2d 538, 555 (1990).

      Here, the CCO filed an action seeking a “declaration pursuant to Rule 57 of the
                     CHERRY CMTY. ORG. V. CITY OF CHARLOTTE

                         HUNTER, JR., Robert N., J., concurring



North Carolina Rules of Civil Procedure and the North Carolina Declaratory

Judgment Act, N.C. Gen. Stat. § 1-253, et seq., that the rezoning effectuated through

the granting of the Rezoning Petition is invalid and unenforceable as an arbitrary

and capricious act.” The CCO also contends it has standing to bring this action

pursuant to N.C. Gen. Stat. § 160A-393.

      N.C. Gen. Stat. § 160A-393 (2016) provides:

             (d) Standing. – A petition may be filed under this section
             only by a petitioner who has standing to challenge the
             decision being appealed. The following persons shall have
             standing to file a petition under this section:

             ....

                    (2) Any other person who will suffer special damages
                    as the result of the decision being appealed.

      It is necessary for a party to include allegations demonstrating why that party

has standing in a particular case:

             Since the elements of standing are not mere pleading
             requirements but rather an indispensable part of the
             plaintiff’s case, each element must be supported in the
             same way as any other matter on which the plaintiff bears
             the burden of proof, i.e., with the manner and degree of
             evidence required at the successive stages of the litigation.

Weisner at ___, 781 S.E.2d 871, 877 (quoting Neuse River Found., Inc. v. Smithfield

Foods, Inc., 155 N.C. App. 110, 113, 574 S.E.2d 48, 51 (2002)).

      The CCO alleged:

             Petitioner is an aggrieved party who owns real property


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                     CHERRY CMTY. ORG. V. CITY OF CHARLOTTE

                          HUNTER, JR., Robert N., J., concurring



             immediately adjacent to, or in close proximity to the subject
             property, and will suffer special damages in the form of
             increased noise, traffic and parking, decreased visibility
             due to the height of the proposed buildings, diminution in
             the peaceful residential character of the Cherry
             neighborhood, and a reduction in the value of Petitioner’s
             real property if MAP is allowed to proceed as approved by
             the City Council. Accordingly, Petitioner’s damages are
             distinct from the community at large.

Here, the CCO has alleged sufficient facts to assert standing to challenge the zoning

amendment because it owns property immediately adjacent to the rezoned property

and can potentially be adversely affected by the zoning amendment.

      However, the CCO lost the summary judgment hearing because it failed to

forecast competent evidence sufficient to support special damages, not because the

CCO does not meet the status of an aggrieved party under the standing doctrine.

This is clearly a justiciable issue capable of resolution by our Courts, and the CCO,

in my opinion has only lost at the summary judgment level because of its failure to

forecast evidence tending to show specifically how it will suffer harm by the

Defendants in this case. Uncontroverted opinion is no longer sufficient evidence in

North Carolina. United Community Bank (Georgia) v. Wolfe, ___ N.C. ___, ___, 799

S.E.2d 269, 272 (2017).

      Furthermore, under N.C. Gen. Stat. § 1-257 (2016), a trial court may “refuse

to render or enter a declaratory judgment or decree where such judgment or decree,

if rendered or entered, would not terminate the uncertainty or controversy giving rise



                                          -3-
                       CHERRY CMTY. ORG. V. CITY OF CHARLOTTE

                           HUNTER, JR., Robert N., J., concurring



to the proceeding[.]” See Farber v. N.C. Psychology Bd., 153 N.C. App. 1, 569 S.E.2d

287, cert. denied, 356 N.C. 612, 574 S.E.2d 679 (2002) (holding the trial court did not

abuse its discretion in refusing to issue a declaratory judgment regarding the

constitutionality of G.S. § 90-270.15(a)(10) where it decided further grounds for relief

were unnecessary and would serve no useful purpose). Here, the trial court found

“the City complied with all the law, with the Ordinances, their own law, the State

law . . . and with the City Council’s own procedures.” The trial court further reasoned

“I don’t see how a different result could possibly have taken place had the thing gone

back to the Planning Board and an additional 30 days been given.”

        From these facts I conclude the trial court did not abuse its discretion in this

case.




                                           -4-
