One of the best-known houses in one of Raleigh’s older neighborhoods is also among its newest. In 2013, Louis Cherry and Marsha Gordon applied to build a modernist house in Raleigh’s Oakwood neighborhood, where most existing houses are from the Victorian era or have similar designs. The resulting controversy generated both considerable national news coverage and considerable legal expenses as a neighbor challenged whether a modernist house was appropriate for the neighborhood. In a February ruling, the state’s second-highest court sided with the owners of the new home.

Oakwood is a designated historic district. Under the rules for the district, a certificate of design appropriateness from the Raleigh Historic Development Commission is required for new construction. Before the commission, several people stated their belief that the proposed modernist structure was not at all consistent with the other houses in the area. Among those expressing displeasure was Gail Wiesner, who lives across the street from Cherry and Gordon’s lot.

The commission ultimately approved the house, and Cherry and Gordon proceeded to obtain a building permit and begin construction, facing a risk that they might be required to tear the house down if the commission’s decision to issue the certificate was overturned on appeal.

And there was an appeal. Wiesner contested the commission’s ruling before the Raleigh Board of Adjustment. In early 2014, the board sided with Wiesner. But Cherry and Gordon then sought judicial review of the board’s determination. In a September 2014 decision, Superior Court Judge Elaine O’Neal Bushfan ruled against the board and reinstated the commission’s determination that the house was appropriate for the neighborhood. Wiesner then took the next step and brought the issue before the N.C. Court of Appeals.

Special damages?

The key issue before both the trial court and the Appeals Court was whether Wiesner actually had the right to challenge the commission’s issuance of the certificate before the Board of Adjustment. The legal term for this is “standing.” Under North Carolina law, owning adjacent property does not, by itself, confer standing to challenge a land use decision. Instead, a neighbor must demonstrate that she is an “aggrieved party” under the law and would suffer “special damages” as a result of the proposed use. State courts have defined special damages as economic damages such as a loss of property value or other adverse effects; they are distinct from those other property owners in the area would suffer as a result of the proposed land use.

The Court of Appeals rejected Wiesner’s claim. “Even if she is correct in her assessment of the Cherry-Gordon house’s design, respondent has failed to show that she is an ‘aggrieved party’ as the law defines that term, so the Superior Court’s order reversing the Board’s decision was correct and we affirm it,” wrote Judge Donna Stroud for the Appeals Court.

Wiesner’s petition to the Board of Adjustment stated that the Cherry-Gordon house would “harm the character of the neighborhood and contribute to erosion of the neighborhood’s value.” The Court of Appeals found that this did not rise to the level of special damages, as Wiesner’s claim either was purely aesthetic or not limited to her property.

This did not end the matter, as Wiesner also alleged that she should have been allowed to supplement the record at trial with affidavits showing that she indeed would suffer special damages. The Court of Appeals was not impressed by this argument, finding the affidavits unhelpful.

As an example, in one affidavit, Wiesner complained that the modernist house had led to “gawker traffic.”

Even if this were true, Stroud noted that the affidavit stated the increased “gawker” traffic had been caused by the intense media attention attracted by the battle over the house’s design, not by the house itself.

“This is simply not the sort of increased traffic our prior cases have addressed as part of the basis for standing of an adjacent property owner to challenge a permit, since traffic is not generated by the usual or intended use of the Cherry-Gordon house or property itself but is generated only by the media coverage of the controversy surrounding its construction. The Cherry-Gordon house is a 2,580- square-foot single-family residence, and the record shows that it would generate exactly the same type of ‘traffic’ in its normal use as respondent’s home or any other single-family residence of similar size.”

Court of Appeals rulings are binding interpretations of state law unless overruled by the N.C. Supreme Court. Because the ruling by the three-judge panel of the Appeals Court was unanimous, the high court is not required to hear the case if Wiesner files additional challenges regarding the house’s design.

The case is Cherry, v Wiesner, (15-155).