Opinion
No. COA09-1113
Filed 20 July 2010 This case not for publication
Appeal by petitioners from judgment entered 9 June 2009 by Judge Henry E. Frye, Jr., in Randolph County Superior Court. Heard in the Court of Appeals 10 February 2010.
The Brough Law Firm, by Robert E. Hornik, Jr., for petitioner-appellants and cross-appellees. Wilhoit, Pugh Allen, by Darren C. Allen, for respondent-appellees and cross-appellants.
Randolph County No. 08 CVS 3377.
Petitioners Claude Winslow and Barbara Winslow appeal from an order entered 9 June 2009 by the Randolph County Superior Court which affirms an order of Respondent Randolph County Board of Adjustment denying petitioners Maxton McDowell, Wanda McDowell, Claude Winslow, and Barbara Winslow's request that respondent McDowell Lumber Company (the lumber company) be compelled to remove structures on its property to comply with the Randolph County Uniform Development Ordinance (UDO). Respondent Randolph County cross-appeals to contest the Superior Court's conclusion that Petitioners Claude Winslow and Barbara Winslow have standing. For the reasons stated herein, we dismiss this action.
We see nothing in the record to indicate a ruling by the trial court on petitioners Maxton and Wanda McDowell. The Board of Adjustment voted all petitioners lacked standing; however, because the trial court reversed the Board's ruling on lack of standing only as to the Winslows, we deem the issue on appeal applicable to the Winslows only.
Since prior to 1972, the lumber company, located on approximately 30 acres in Randolph County at 2374 Falling Oak Road, has operated a lumbermill and a timber-related activities business. Petitioners Claude Winslow and Maxton McDowell acquired property adjacent to the lumber company in 1972 and 1977, respectively. On 6 July 1987, a county wide zoning ordinance was adopted, which divided the 30-acre property in two distinct zoning classifications. The property to the east of Falling Oak Road was zoned Light Industrial (LI), and the property to the west was zoned Residential/Agricultural (RA). RA zones permitted the use of temporary sawmills but permanent sawmills were restricted to zones designated Heavy Industrial (HI). In October 2004, the lumber company requested that its property be rezoned to HI. The Randolph County Board of County Commissioners granted the request, but petitioners filed a complaint and petition for a writ of mandamus in the Randolph County Superior Court. On 28 September 2006, the superior court entered an order in which it concluded that rezoning the lumber company's property to HI constituted illegal spot zoning and was therefore null and void. In September 2007, this Court affirmed the superior court's decision. However, following its request to rezone the property, the lumber company erected new structures: in November 2004, a dust bin enclosure; in December 2004, a kiln; in January 2006, a fixed-position electric crane; a new forestry office; and storage sheds.
See McDowell v. Randolph County, 186 N.C. App. 17, 649 S.E.2d 920 (2007).
In August 2006, Claude and Barbara Winslow filed a complaint against the lumber company seeking money damages for the diminution of value to their property and abatement of operations causing a private nuisance. In their complaint, the Winslows alleged that in 1988 and 1994, the lumber company moved the sawmill and planing operation, respectively, to the west side of Falling Oak Road, away from their property. From 1994 until early 2004, "only an office existed on the Lumber Company Property east of Falling Oak Road." "[B]eginning in about 2004, [the lumber company] commenced and completed a substantial expansion of the operation directly adjacent to [the Winslow's] property. At least one new building was erected, and significant additions to another building were completed, and new loud equipment has been added to the new buildings." A jury in Randolph County Superior Court found that the lumber company did not substantially and unreasonably interfere with the [Winslow's] use and enjoyment of their property.
In December 2007, petitioners requested that the Randolph County Department of Building Inspections investigate whether the lumber company illegally expanded its non-conforming use of the property in violation of the UDO. By letter response dated 17 December 2007, Randolph County Director of Inspectors Paxton Arthurs informed petitioners that the building inspections department did not possess the legal authority to enforce the UDO. Arthurs recommended that petitioners address their concerns to the Randolph County Planning and Zoning Department.
On 27 August 2008, petitioners mailed a letter to the Randolph County Planning and Zoning Department which detailed their complaints. On 12 September 2008, Director of Planning and Zoning Hal Johnson addressed the structures petitioners contended violated the UDO. Johnson concluded that the lumber company was allowed to continue the nonconforming use of its property as it existed on or before 7 February 2005 — the date petitioners first publicly objected to the proposed zoning change to HI — by the doctrines of zoning estoppel and vested rights. Furthermore, Johnson stated that while UDO Article XI, on Non-Conformance, does not encourage the nonconforming use of property, such uses are not absolutely precluded: Article XI, sections 4(d) and 6, authorized the nonconforming use of property when required by law, when ordered by the Zoning Administrator, or when required for building repair. Johnson determined that the dust bin enclosure, the crane, the addition to the pallet making operation, the forestry office, and storage sheds were not prohibited by the UDO. Petitioners appealed the decision to the Randolph County Board of Adjustment.
On 2 December 2008, after a hearing, the Board of Adjustment unanimously adopted an order which affirmed the decision of the zoning administrator and concluded that petitioners failed to carry their burden that the lumber company violated UDO Article XI. Moreover, the Board concluded that petitioners failed to carry their burden that they suffered special damages separate and distinct from the rest of the community. Petitioners filed a petition in the Randolph County Superior Court to grant a writ of certiorari to review the matter pursuant to N.C. Gen. Stat. § 153-345(e2).
The Superior Court granted certiorari with the lumber company and Board of Adjustment as respondents. On 9 June 2009, the superior court entered an order in which it held that the Board of Adjustment erred in concluding petitioners Claude Winslow and Barbara Winslow lacked standing but in all other respects affirmed the Board's decision. Now, petitioners Claude Winslow and Barbara Winslow appeal to this Court, and respondents cross-appeal.
On appeal, petitioners raise the following questions: did the Superior Court err when it affirmed the Board of Adjustment's decision (I) that the lumber company's expansions did not violate the UDO; and (II) that the lumber company enjoyed a "vested right" to continue in its non-conforming uses.
On cross-appeal, respondents raise the following question: (III IV) did the Superior Court err in reversing the Board of Adjustment's order that petitioners Claude and Barbara Winslow lack standing.
We address only respondents' argument that petitioners lack standing for failure to establish that their injuries were subject to redress.
IV
Respondents argue that the superior court erred in reversing the Board of Adjustment on the issue of whether petitioners Claude and Barbara Winslow lacked standing because petitioners failed to establish that petitioners' injury could be redressed by a favorable determination from the Board. We agree.
"In any case or controversy before the North Carolina courts, subject matter jurisdiction exists only if a plaintiff has standing. If a court finds at any stage of the proceedings that it lacks jurisdiction over the subject matter of a case, it must dismiss the case for want of jurisdiction." Sarda v. City/Durham Bd. of Adjustment, 156 N.C. App. 213, 215, 575 S.E.2d 829, 831 (2003) (internal citations and quotations omitted). "If a party does not have standing to bring a claim, a court has no subject matter jurisdiction to hear the claim." Marriott v. Chatham County, 187 N.C. App. 491, 496, 654 S.E.2d 13, 17 (2007) (citation omitted). "As the party invoking jurisdiction, [petitioners] have the burden of establishing standing." Id. at 494, 654 S.E.2d at 16 (citation omitted). "In our de novo review of a motion to dismiss for lack of standing, we view the allegations as true and the supporting record in the light most favorable to the non-moving party." Mangum v. Raleigh Bd. of Adjustment, 362 N.C. 640, 644, 669 S.E.2d 279, 283 (2008) (citation omitted).
The elements of standing are:
(1) "injury in fact" — an invasion of a legally protected interest that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;
(2) the injury is fairly traceable to the challenged action of the defendant;
(3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Marriott, 187 N.C. App. at 494, 654 S.E.2d at 16 (citation omitted).
Here, petitioners appealed to the Randolph County Board of Adjustment after the zoning administrator determined that alterations to the lumber company's property since 18 October 2004 did not violate the Randolph County UDO. On 6 November 2008, in the hearing held before the Board of Adjustment, evidence was presented by Zoning Administrator Hal Johnson, petitioners Claude Winslow and Maxton McDowell, and petitioners' appraiser Michael Watts. Petitioners Winslow and McDowell testified in pertinent part to the expansion of the lumber company between 2004 and 2006. Watts testified to diminution in value of the Winslows' property. Watts testified that his appraisal was based on the entire operation of the lumber company rather than any specific component and that the loss in the Winslows' property value was attributable to noise and dust. No witness testified that petitioners' injury was directly traceable to the structures petitioners sought to be removed: a dust bin enclosure — constructed to contain dust; an electric crane — constructed to reduce dust, noise, and emissions; a kiln — to heat wooden pallets; a forestry office; and storage sheds. Moreover, there was no evidence presented that the removal of these structures would redress petitioners' injury. Therefore, even reviewing the evidence in in the light most favorable to petitioners, we hold that petitioners lack standing as there is insufficient evidence to establish that petitioners' injury could be redressed by removal of the structures. Accordingly, this matter is dismissed.
Dismissed.
Judges ELMORE and STROUD concur.
Report per Rule 30(e).