in the Court of Appeals 17 May 2017.
by plaintiff from order entered 15 August 2016 by Judge
Daniel A. Kuehnert in Mecklenburg County Superior Court, No.
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.
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 (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.
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.
real property (the "Parcels") at issue in this case
involves four parcels owned by MAP in and around
Cherry. 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 building, 187, 450 square foot parking structure, and 8
single-family attached dwelling units. The building's
then-proposed height was 119 feet.
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. 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.
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.
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
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.
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.
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.
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.
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.
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 are distinct from the rest of the
community. 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
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.
"[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., 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).
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 ...