Who Can Challenge Land Use Decisions? A Question of Standing

Victor would like to ask a court to overturn a recent rezoning decision in the Town of Fakesville. Katrina wants to challenge a recent special use permit decision in the same town. But can they do so? A key prerequisite of any challenge to a local government decision is standing – the capacity of a party to bring a lawsuit in court. Standing requires a sufficient connection to, or harm caused by, the challenged action. Without proper standing, neither Victor nor Katrina could “have their day” in court. As a pair of 2025 North Carolina Court of Appeals decisions remind us, Victor and Katrina face different standing requirements because of the kinds of decisions they seek to challenge.

Appealing Local Government Decisions

People sometimes disagree with the decisions of local government bodies. In fact, some local government decisions can be downright controversial! When a person is particularly dissatisfied with a local government land use decision, the law gives that person a right to appeal or to challenge the local government’s decision. Whether the decision being challenged is administrative, legislative, or quasi-judicial, a would-be party must have standing to challenge that decision (for a review on the types of land use decisions, see this blog by Adam Lovelady). Standing represents a person’s right to challenge another’s action in court. It requires the plaintiff to show some connection to the action being challenged, and often some harm they have suffered.

Let’s go back to the lawsuits Victor and Katrina hope to bring against the Town of Fakesville. Because Fakesville is in Maydup County, each of their suits must be filed in Maydup County Superior Court. But that is where the similarities between the two actions end. The journeys that these two cases will take—and their chances of success in demonstrating standing—are quite different.

Standing to Challenge Legislative Decisions – “Affected By”

Let us first consider Victor’s suit against the Town of Fakesville for its recent rezoning.

A rezoning (that is, an amendment to the zoning map) is a legislative decision, and legislative decisions are most often challenged through a declaratory judgment action. In a declaratory judgment action, the plaintiff asks the court to declare some status or rights between the parties. G.S. 160D-1401 confirms that declaratory judgments can be sought as a way to challenge a legislative development decision.

Perhaps Victor believes that the Fakesville Town Council failed to follow the right procedures, failed to approve the required statements, or applied some condition that was outside of the town’s authority. Each of these problems could invalidate the rezoning, so Victor will seek a declaratory judgment that the rezoning is invalid.

What does Victor need to do to demonstrate that he has standing to bring the lawsuit? The Declaratory Judgment Act (“DJA,” found at G.S. Chapter 1, Article 26) allows a declaratory judgment action to be brought by any person “…whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract, or franchise…” G.S. 1-254. Thus, to bring a challenge to a legislative decision of a local government, a plaintiff need only establish they are “affected by” the action.

It does not take much for Victor to demonstrate that he is “affected by” the rezoning and thus has standing to challenge it. Maybe he lives near the rezoned property and will suffer through bad traffic, light and noise pollution; he might even have to drive by a vape shop on his way to work. If Victor can demonstrate that the rezoning will affect him in some way, he will have standing to challenge the decision.

Standing to Challenge Quasi-Judicial Decisions – “Special Damages”

What about Katrina? Standing to challenge a quasi-judicial decision is much stricter than standing to challenge a legislative decision.

Quasi-judicial decisions must be challenged through a legal mechanism called a petition for writ of certiorari. What exactly that term means is not important for our purposes; that’s just the legal term for what the plaintiff is doing in challenging a quasi-judicial decision in Superior Court.

Katrina might believe that the Fakesville Town Council made their decision on an improper basis or with the participation of biased board members, for example. She wants the same thing that Victor does, though: throw that Fakesville decision out like a rotten potato.

Standing to challenge quasi-judicial decisions is outlined in G.S. 160D-1402(c). That statute limits standing in such cases to the following:

• Applicants,
• Persons who hold an interest or right to purchase the property,
• Local governing boards,
• Associations with members who would have standing as an individual, and
• “Any other person who will suffer special damages as a result of the decision being appealed.”

In our case, Katrina is not the applicant, has no legal interest in the property, and has no right to buy the property. The only way she will have standing to challenge the special use permit is if she can show that granting the special use permit will cause her to suffer “special damages.”

Demonstrating special damages requires more than allegation’s like Victor’s. Any member of the public might be affected by traffic, pollution, and maybe even having to drive by a vape shop on the way to work. For Katrina’s damages to be “special” the special use permit must affect her in some way that is different from other members of the public. Special damages could result from particular characteristics of Katrina’s property use, from a particular physical relation to the special use permit property (such as immediately downhill), or from some other interaction that is specific to Katrina’s property and the subject of the special use permit.

Alternative Standing to Challenge Ordinances as Illegal

There is yet a third avenue to standing to challenge a development regulatory decision outlined in G.S. 160D-1403.1. It allows an owner or applicant to skip to superior court or federal court if they allege that the government has acted outside of its legal authority or has violated either the US or North Carolina constitution.

Specifically, the statute allows suits by the following:

1. A property owner or holder of a leasehold, easement, option or contract to purchase property that was the subject of a final and binding administrative land use decision;
2. A development permit applicant before a board whose action he, they, or she is challenging; or
3. A development permit applicant aggrieved by a final and binding administrative land use decision.

If a person falls under one or more of the three above categories, they have standing to bring a case directly to superior court or federal court to challenge a land development regulation as (i) unconstitutional, (ii) outside of the local government’s statutory authority, or (iii) a taking of property.

To illustrate this path, let’s introduce a different person, Victor’s cousin Frederick. Frederick had a zoning permit rejected by the Maydup County planning office because of a rule that he believes is unconstitutional. Frederick can use G.S. 160D-1403.1 because he applied for a development permit and that permit received a final decision. This decision was an administrative approval, and those normally would have to go to the board of adjustment first before Frederick could appeal to the courts (see this blog by Adam Lovelady for more on challenging administrative land use decisions). This statute allows Frederick to bring these challenges directly to superior court (or federal court), where the tribunal may be able to rule on questions of authority and constitutionality.

2025’s Court Decisions Related to Standing

In 2025, the North Carolina Court of Appeals provided us with two real-life cases related to standing to challenge legislative decisions. They illustrate the difference between standing in that context and in the quasi-judicial context. These cases are summarized briefly below.

Gardner v. Richmond County

In the first case, Gardner v. Richmond County, No. COA21-600-2 (N.C. App. Feb 19, 2025), the corporate owner of a tract of approximately 167 acres in southeastern Richmond County sought a rezoning of their property from Rural-Residential and Agricultural Residential to Heavy Industrial. Its intention was to allow another company to construct and operate a “biochar” facility at which the company would cook untreated lumber and creosote-treated railroad ties to make charcoal.

After the Richmond County Board of Commissioners approved the rezoning, the City of Hamlet, the Town of Dobbins Heights, and several individual plaintiffs filed a declaratory judgment action in Richmond County Superior Court. In their suit, the plaintiffs alleged that the County failed to consider all permitted uses and did not comply with other statutory requirements.

Dobbins Heights alleged that it had standing because the proposed biochar facility was near Dobbins Heights’ and Hamlet’s primary source of drinking water, that air pollution from the facility would harm its residents and potentially contaminate its drinking water, and that traffic from the facility would disproportionately affect its road network. Hamlet made the same allegations, but Hamlet owned the tract of land that supplied drinking water and that tract was located less than 2,500 feet from the rezoned property.

While the trial court accepted Hamlet’s allegations as sufficient to establish standing, it ruled that Dobbins Heights did not have standing. The trial court did not explain what test it used to evaluate standing for Hamlet and Dobbins Heights, or why Hamlet would have standing but Dobbins Heights would not. After appeal and remand by the NC Supreme Court on another point of law, the issue of standing for Dobbins Heights came before the Court of Appeals.

At the Court of Appeals, the defendant county argued that Dobbins Heights would have to show special damages, as though this were a quasi-judicial decision like the special use permit in Katrina’s case above.

The Court of Appeals disagreed, pointing out that the challenge was a declaratory judgment action related to a legislative decision. As such, the question of standing would not depend on the “special damages” standard, but on a test set forth by the North Carolina Supreme Court in Committee to Elect Dan Forest v. Employees Political Action Committee, 376 N.C. 558 (2021). In that case, the Supreme Court described a two-part test: first, a statute (like the DJA) must confer a cause of action to the plaintiff; second, the plaintiff must satisfy the statute’s requirements for bringing a claim. The DJA confers a cause of action on anyone who is “affected by” a legislative land use decision, so that was the standard that Dobbins Heights had to meet.

An earlier case, Taylor v. Raleigh, 290 N.C. 608 (1976), held that a plaintiff had to be “directly and adversely affected by” a legislative land use decision to have standing to challenge it. As the court in Gardner stated that Taylor “fits” within a framework established in Committee to Elect Dan Forest, the standard for challenging legislative land use decisions might include a requirement that the effect be direct and adverse.

Based on the Committee to Elect Dan Forest test, the Court of Appeals held that the town’s allegations met the requirements for standing to challenge a legislative zoning decision and sent the case back to the trial court.

Camp Carefree v. Rockingham County

Just a few months later, the Court of Appeals issued a similar decision in Camp Carefree v. Rockingham County, No. COA24-666 (N.C. App. July 16, 2025). In that case, the county proposed (and approved) a text amendment to increase the range of allowable uses in its Highway Commercial zoning district. Around the same time, the board of commissioners approved a property owner’s proposed map amendment to change a 192.74-acre property from Residential Agricultural to Highway Commercial. The end result of these two amendments was a significant change to the uses allowed on the rezoned property. A number of new uses would be allowed by right, such as dry-cleaning facilities, crematories, fertilizer manufacturers, electronic gaming operations, and landfills for hazardous and industrial waste.

A number of nearby property owners sued, including Camp Carefree, a camp for children with chronic illnesses and their families. The plaintiffs sought a declaratory judgment that both amendments were void because the board of commissioners failed to follow proper procedures in several ways. They alleged that the rezoning would result in uses that would produce noise, odor, glare, and litter. They alleged that the development could cause increased criminal activity and that there was a “probability of a vice-oriented tourist attraction.” Camp Carefree also alleged that the newly-allowed uses would negatively impact the enjoyment of their campers and guests.

The result of this case closely paralleled that of the Gardner case (indeed, the Camp Carefree court cited to the still-fresh Gardner decision a few times). As in Gardner,

• The plaintiffs were challenging legislative decisions through a declaratory judgment action.
• The trial court ruled that the plaintiffs had failed to establish standing.
• Defendants argued that the plaintiffs had failed to allege special and distinct damages.
• The Court of Appeals overturned the standing decision on the ground that the action was for a declaratory judgment to nullify a legislative decision, not a petition for writ of certiorari challenging a quasi-judicial decision.

As a result, the plaintiffs only had to be affected by the county’s action in order to demonstrate standing. Some of these alleged impacts, such as noise, odor, or criminal activity, would affect the community as a whole. Those impacts likely would not give a plaintiff standing to challenge a quasi-judicial decision, where special damages are required, but the Court of Appeals held that the plaintiffs’ allegations were sufficient to support standing to challenge the legislative decisions at issue.

Clarifying “Special Damages” Standing to Challenge Quasi-Judicial Decisions

While the 2025 cases clarified when to use a “special damages” standard for standing and when to use an “affected by” standard, it is important also to understand what other cases might tell us about what might qualify as special damages.

What does not qualify as special damages

A 2016 case related to a certificate of appropriateness illustrates how much higher the standard is for “special damages” standing to appeal a quasi-judicial decision than the standard for challenging a legislative decision. In Cherry v. Wiesner, 245 N.C. App. 339 (2016), a resident of a Raleigh historic district sought to challenge a certificate of appropriateness that the city’s historic preservation commission had granted to the resident’s neighbor to allow the neighbor to construct a new home. The plaintiff claimed that she had standing because she lived adjacent to the subject property and the approved house would harm property values in the neighborhood.

The Court of Appeals disagreed. It held, based on prior precedent, that the proximity of the plaintiff’s home to the approved house and the impact on the value of her property may be relevant factors to consider in establishing standing, but they were not sufficient to demonstrate that the plaintiff would be harmed in a way different from the community at large. This was so even though the plaintiff lived next door to the approved house. These allegations almost certainly would have been sufficient to show that the plaintiff was “affected by” the city’s decision to issue a certificate of appropriateness but were not sufficient to demonstrate “special damages.”

What qualifies as special damages

In another case decided the same year, Sugar Mountain Ski Resort, LLC v. Village of Sugar Mountain, 246 N.C. App. 190 (2016), the North Carolina Court of Appeals upheld a ski resort’s standing to challenge a variance issued to a neighboring property owner. The neighboring property owner purchased a home that was extremely close to the border between his property and the resort’s property. The ski resort alleged that the improvements allowed by the variance would be too close to the property line and in fact would interfere with skiing operations and reduce the safety of the resort’s slopes. The Court of Appeals held that the resort’s allegations were sufficient (and sufficiently different from effects on other property owners) to establish special damages.

The Takeaway

The test used to measure an individual’s standing to challenge a land use decision matters a great deal. Like Victor and the plaintiffs in Gardner and Camp Carefree, a party need only be affected in some way by a legislative land use decision to challenge it. On the other hand, like Katrina and the plaintiffs in Cherry and Sugar Mountain, a party seeking to challenge a quasi-judicial land use decision must meet the more rigorous standard of suffering special damages from the action they challenge.

The 2025 cases described above—Gardner and Camp Carefree—serve as particularly stark examples. In each case, the trial court found the plaintiffs’ allegations insufficient to demonstrate the kind of “special damages” that would be needed for standing in a quasi-judicial case, but the Court of Appeals found that the same allegations were adequate for standing to challenge a legislative decision.

Litigators, litigants, and those who may soon be litigants should pay close attention to the standing requirements for any challenge to a decision related to a development regulation decision. It is vital to be sure of which standard applies to a particular land use situation.