In reading the most recent Court of Appeals decision on standing in North Carolina, Hoag v. Pitt County (19-826 – Unpublished), I’m reminded of Elton John’s hit “I’m Still Standing.” It seems like there is a new challenge to the standing requirements in North Carolina on a regular basis, and yet the appellate courts consistently hold the line on the requirement to allege special damages that are distinct from the rest of the community in a particularized and supportable way. In Hoag, the Court declined the opportunity to knock down the standing barrier. This requirement is very much “still standing . . . yeah, yeah, yeah.”

It might seem unnecessary to write about an unpublished case handed down by the Court of Appeals, but I think Hoag is more about what the COA didn’t say than what it did say (or publish). The Court had the opportunity to loosen the pleading requirements for standing, but it decided the rule works well and no new precedent was necessary in this case.

In Hoag, neighboring property owners tried to challenge a legislative rezoning approved by Pitt County by arguing that the rezoning would be contrary to the County’s comprehensive land use plan, and would negatively impact traffic congestion and create unsafe traffic conditions. Despite the neighbors’ opposition, the Commissioners approved the rezoning. The neighbors then filed a declaratory judgment complaint in Pitt County Superior Court, which included the following allegations:

40. Plaintiffs are aggrieved parties who own real property

immediately adjacent to and/or in close proximity to the

Fontana Property

41. Plaintiffs, as a result of the Rezoning and development

permitted by the Rezoning, have suffered and will continue

to suffer special damages in the form of increased

stormwater run-off, increased risk of flooding, diminution

in the value of their property, increase in traffic, increase

in traffic congestion and less safe traffic conditions,

increase in noise, and loss of neighborhood character.

42. Plaintiffs have specific personal and legal interests

adversely affected by the County’s approval of the

Rezoning and development permitted by the Rezoning.

43. The damages suffered by the Plaintiffs are distinct

from the rest of the community at large.

The rezoning Petitioner (Clark Homes) and the County filed motions to dismiss for lack of standing and the trial court granted the motions and dismissed the neighbors’ complaint on the basis that the neighbors’ failed to “sufficiently allege[] special damages arising from the zoning decision.” The neighbors appealed to the Court of Appeals, which affirmed the trial court’s order dismissing the neighbors’ complaint.

The well-known rule in North Carolina is that a party challenging a local government’s decision to rezone property must allege and show special damages distinct from the rest of the community. Writing for the Court, Judge Inman cited to previous standing cases which provide that rezoning challengers must go further than vague allegations of special damages; they must provide a factual basis to support standing and allege specific facts on which their claim of special damages distinct from the community is based.

The Court also rejected the neighbor’s reliance on the recently decided Cherry Community Organization v. City of Charlotte, 257 N.C. App. 579, 809 S.E.2d 397(2018),[1] which provided that “generally alleging special damages” was sufficient for surviving a 12(b)(6) motion to dismiss. The Court found the Cherry decision to be of “limited precedential and persuasive value” because it didn’t garner a majority (the other two judges in that decision concurred in the result only). The Court also believed the analysis on whether the complaint in Cherry would have survived a motion to dismiss is non-binding dicta because that case involved a summary judgment order.

In assessing the neighbors’ complaint, the Court in Hoag found that the “broad allegations of damages . . . [did] not, without more, suffice.” Without additional factual allegations showing the distinctiveness of their damages, the neighbors could not demonstrate standing. The neighbors admitted at the trial court level that the allegations in the complaint were conclusory. According to the Court, these conclusory allegations, along with the lack of individualized factual allegations showing the distinctiveness of damages or injuries to the neighbors, was the death knell for their complaint.

The lesson, then, from this unpublished decision is that appellate courts are unlikely to look past the still standing (see what I did there) requirement that a complaint which challenges a rezoning approval contain specific, individualized factual allegations showing the distinctiveness of the challengers’ damages or injuries from the rest of the community.

[1] Not to be confused with the often-referenced Cherry standing case: Cherry v. Wiesner, 245 N.C. App. 339, 781 S.E.2d 871 (2016).

April 27, 2020/by GovernmentandPublicSector