Davis v. City of Archdale

344 S.E.2d 369 (1986)

Donald DAVIS, et al. v. CITY OF ARCHDALE, et al.

No. 8519SC1284.

Court of Appeals of North Carolina.

June 17, 1986.

*370 Graham, Miles & Bogan by James W. Miles, Jr., Greensboro, for plaintiffs-appellants.

No brief for defendant-appellee City of Archdale.

Fisher, Fisher, Gayle & Craig by Louis J. Fisher, Jr. and John O. Craig, III, High Point, for defendants-appellees William T. Boyd, Shirley C. Boyd, Darrell Leon Frye, Elizabeth Anne Shover Frye, Stephen V. Hill and Sylvia Lee Frye Hill.

Roberson, Haworth & Reese by J. Brooks Reitzel, Jr., High Point, for defendants-appellees R. Dale Britt, C.D. Clodfelter and David L. Maynard.

WELLS, Judge.

Preliminarily, we note that plaintiffs did not file their brief until twenty-five days after the printed record on appeal was mailed, well over the twenty days allowed by Rule 13(a) of the Rules of Appellate Procedure for filing an appellant's brief. Neither did plaintiffs timely seek an extension of time to file their brief. For their failure to file a brief in a timely fashion, their appeal is subject to dismissal. Rule 13(c) of the Rules of Appellate Procedure. Nevertheless, in the exercise of our discretion, we consider the merits of the appeal.

The question before us is whether the court properly dismissed plaintiffs' complaint. Defendants argue that the court correctly dismissed the complaint because plaintiffs lacked standing to challenge the ordinances. We agree.

In passing upon the validity of an annexation or zoning ordinance, one of the court's first concerns is whether the plaintiff has standing to bring the action. Taylor v. City of Raleigh, 290 N.C. 608, 227 S.E.2d 576 (1976). The general rule is that "unless an annexation ordinance be absolutely void (e.g., on the ground of lack of legislative authority for its enactment), in the absence of specific statutory authority to do so, private individuals may not attack, collaterally or directly, the validity of proceedings *371 extending the corporate limits of a municipality." Id. Annexation ordinances are authorized by Article 4A of Chapter 160A of the General Statutes. The only persons given the authority by Chapter 160A to challenge an annexation ordinance are those who own property in the annexed area. N.C.Gen.Stat. §§ 160A-38(a) and -50(a) (1982). Plaintiffs admitted in their complaint that they do not own property in the annexed areas. They thus do not have standing to challenge the annexation ordinance.

In order to challenge a rezoning ordinance, one must have a specific personal and legal interest in the subject matter affected by the ordinance and must be directly and adversely affected by the ordinance. Taylor v. City of Raleigh, supra. To have standing, an adjacent or nearby landowner must allege and show special damages distinct from the rest of the community. Heery v. Zoning Board of Adjustment, 61 N.C.App. 612, 300 S.E.2d 869 (1983). Plaintiffs alleged in their complaint that they have sustained and will continue to sustain a diminution in the value of their property due to increased traffic on roads which already carry traffic volumes in excess of capacity and due to increased demands upon already overburdened public utilities. We do not think these damages are special damages distinct from those of the rest of the community. Plaintiffs thus do not have standing to challenge the rezoning ordinances. Compare Taylor v. City of Raleigh, supra (adjacent landowners had "tenuous" standing to challenge rezoning ordinance when their property was being condemned for water and sewer line easements extending to rezoned property).

Plaintiffs argue that their complaint should not have been dismissed because the City did not move to dismiss and admitted in its answer that proper procedures were not followed in the annexation. This argument has no merit because standing is jurisdictional in nature. See Taylor v. City of Raleigh, supra.

For the foregoing reasons, the order dismissing the complaint is

Affirmed.

ARNOLD and BECTON, JJ., concur.