COLORADO COURT OF APPEALS 2016COA108
Court of Appeals No. 15CA0239
Arapahoe County District Court No. 13CV722
Honorable Frederick T. Martinez, Judge
Rangeview, LLC, a Colorado limited liability company; Pamela Eades; and John
Sellery,
Plaintiffs-Appellants,
v.
City of Aurora, a municipal corporation; City Council of the City of Aurora, a
governing body; and Mitrah Investment and Holdings, LLC, a Colorado limited
liability company.
Defendants-Appellees.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE FOX
Miller, J., concurs
Taubman, J., concurs in part and dissents in part
Announced July 14, 2016
Foster Graham Milstein & Calisher, LLP, David Wm. Foster, Chip G.
Schoneberger, Melanie MacWilliams-Brooks, Denver, Colorado, for Plaintiffs-
Appellants
Brownstein Hyatt Farber Schreck, LLP, Martha L. Fitzgerald, Carrie E.
Johnson, Denver, Colorado; Wood, Ris & Hames, P.C., Todd E. Mackintosh,
Denver, Colorado, for Defendants-Appellees
¶1 Rangeview, LLC, Pamela Eades, and John Sellery
(collectively Rangeview) appeal the trial court’s judgment
affirming, under C.R.C.P. 106(a)(4), the Aurora City Council’s
approval of a rezoning application submitted by BFR, LLC (BFR)
and Mitrah Investments and Holdings, LLC (Mitrah). We affirm.
I. Background
¶2 BFR owned a rectangular parcel of property located at the
intersection of Havana Street and Kentucky Avenue in Aurora,
Colorado (the property). The property consists of 1.894 acres of
vacant land measuring 300 feet by 275 feet. Mitrah is the
developer of the property. The site plan was proposed as follows:
1
¶3 Rangeview, LLC owns Rangeview estates — which borders
the property to the west — and Eades and Sellery each own
property in the neighborhoods surrounding the property. In
2012, BFR and Mitrah applied to rezone the property from B-1
2
(business zoning district) on the east side and R-3 (residential
zoning district) on the west side to Aurora’s new Sustainable Infill
Redevelopment (SIR) Zoning District. BFR’s and Mitrah’s site
plan included a proposal to split the property into two lots, the
first to be developed into a gas station with a convenience store
and the second to be reserved for a future commercial retail
building. In February 2013, Aurora’s Planning and Zoning
Commission denied the application. BFR and Mitrah appealed
the denial to the Aurora City Council (City Council).
¶4 City Council conducted a hearing and received testimony
from proponents and opponents of the rezoning application. City
Council also heard testimony on the goals of SIR zoning and
considered the potential utility of BFR’s and Mitrah’s
development plans in the area surrounding the property. City
Council approved, in a 6-2 vote, BFR’s and Mitrah’s request to
rezone the property and approved, in a 7-2 vote, the proposed
site plan for Lot 1.
¶5 Rangeview filed a C.R.C.P. 106(a)(4) action in the district
court against the City of Aurora, City Council, BFR, and Mitrah
(collectively rezoning proponents) claiming that City Council
3
exceeded its jurisdiction and abused its discretion in granting the
application to rezone the property and approve the proposed site
plan. During the course of the proceedings, Mitrah purchased
the property from BFR and the district court dismissed BFR from
the case. The district court concluded that City Council’s
decision was reasonably supported by the record and that City
Council had a reasonable basis for its interpretation of the
ordinances governing SIR zoning districts. The district court
thus affirmed City Council’s decision.
¶6 Rangeview appeals the district court’s decision, arguing that
City Council abused its discretion by (1) approving the site plan
when the plan did not include an outdoor gathering space that
meets SIR design standards and (2) rezoning the property to SIR
zoning when the property does not meet the requirements of an
“infill development parcel” as defined in the Aurora Municipal
Code.
4
II. Standing
¶7 The parties’ original briefing to this division did not address
whether Rangeview had standing to challenge City Council’s
actions, but this panel sua sponte raised the issue.1 See Moody
v. People, 159 P.3d 611, 616 (Colo. 2007) (appellate courts have
authority to address standing sua sponte if there is a sufficient
factual record upon which to resolve the issue). The parties
supplied additional briefing on the issue of standing,2 and we
conclude that Rangeview has sufficient standing to proceed with
its claims on appeal.
1 This division ordered that the parties submit additional briefing
addressing: (1) where in the complaint Rangeview alleged they
would suffer an injury in fact to a legally protected interest because
the respondents did not include public open space in their proposed
gas station/convenience store; (2) if not so alleged, should this
appeal be dismissed for lack of sufficient allegations in the
complaint regarding standing; (3) where, if at all, do facts
establishing standing appear in the record; and (4) what authority,
if any, allows this court to rely on those facts of record — if they
exist, are uncontroverted, and are not otherwise referenced in the
complaint — to conclude there is standing and address the
contentions on appeal.
2 But the additional briefing did not address the first question of
this division regarding the lack of a public gathering space.
5
¶8 Standing is a jurisdictional prerequisite that requires a
named plaintiff to bring suit to protect a cognizable interest.
Friends of the Black Forest Reg’l Park, Inc. v. Bd. of Cty. Comm’rs,
80 P.3d 871, 877 (Colo. App. 2003). Whether a plaintiff has
standing depends on whether the plaintiff has alleged an injury-
in-fact and, if so, whether the injury is to a legally protected or
cognizable interest. Bd. of Cty. Comm’rs v. Bowen/Edwards
Assocs., Inc., 830 P.2d 1045, 1052 (Colo. 1992). In an action
under the Uniform Declaratory Judgments Law, §§ 13-51-101 to
-115, C.R.S. 2015, “the injury-in-fact element of standing is
established when the allegations of the complaint, along with any
other evidence submitted on the issue of standing, establishes
that the regulatory scheme threatens to cause injury to the
plaintiff’s present or imminent activities.” Bowen/Edwards
Assocs., Inc., 830 P.2d at 1053. Colorado courts provide for
broad individual standing. Hickenlooper v. Freedom from Religion
Found., Inc., 2014 CO 77, ¶ 17.
¶9 Colorado case law is inconsistent regarding whether an
appellate court may look beyond the four corners of the
complaint and examine the contents of the appellate record to
6
assess whether a party has proper standing to bring an action.
Compare Colo. Gen. Assembly v. Lamm, 700 P.2d 508, 516 (Colo.
1985) (“If the complaint fails to allege injury, the case must be
dismissed.”), and C M I Corp. v. Bd. of Adjustment, 528 P.2d 409,
410 (Colo. App. 1974) (not published pursuant to C.A.R. 35(f))
(courts are not at liberty to go beyond the confines of a pleading
when evaluating standing), with Marks v. Gessler, 2013 COA
115, ¶ 88 (“[I]n conducting our de novo standing review, we may
examine record evidence outside of the complaint.”) (cert. granted
June 23, 2014), and Bowen/Edwards Assocs., Inc., 830 P.2d at
1052 (standing is established if the allegations in the complaint,
along with any other evidence submitted on the issue of
standing, demonstrate an injury-in-fact), and Coates v. City of
Cripple Creek, 865 P.2d 924, 926 (Colo. App. 1993) (concluding,
based on evidence in the appellate record, that plaintiffs had
standing when plaintiffs alleged, at a city council hearing, that
their property adjacent to land subject to a rezoning proposal
would be adversely affected).
¶ 10 We note that the supreme court in Lamm, in articulating the
relevant standing framework, was not presented with the issue of
7
whether a court may look outside of the four corners of a
complaint, or whether a court can look to the record to determine
standing. See Lamm, 700 P.2d at 515-16. And, more recently,
the supreme court stated, in Bowen/Edwards, that the injury-in-
fact component of standing involves an inquiry of the allegations
in the complaint along with any other evidence submitted in
support of standing. Bowen/Edwards Assocs., Inc., 830 P.2d at
1053. Because the framework articulated in Bowen/Edwards is
more recent and more specific to our present issue than the
aforementioned cases rejecting the ability to look outside of the
complaint for evidence supporting standing, we must follow it.
See, e.g., Keller v. People, 29 P.3d 290, 298 (Colo. 2000) (more
recent and more specific case controls).
¶ 11 Therefore, along with the allegations in the complaint, an
appellate court may consider testimony and other documentary
evidence in the appellate record to determine whether the parties
have standing. See Bowen/Edwards Assocs., Inc., 830 P.2d at
1053; Marks, ¶ 88; Durdin v. Cheyenne Mtn. Bank, 98 P.3d 899,
902-03 (Colo. App. 2004); Coates, 865 P.2d at 926.
8
¶ 12 Rangeview’s complaint never alleges that City Council’s
approval of the proposed site plan or the request to rezone the
property will harm Rangeview, LLC, Eades, or Sellery. However,
Rangeview presented testimony at the hearing before the City
Council that several homes located in Rangeview Estates are
located adjacent to the property. Colorado courts have
recognized that owners of property adjacent to rezoned land have
standing to challenge rezoning that adversely affects them. See,
e.g., Bd. of Cty. Comm’rs v. City of Thornton, 629 P.2d 605, 609
(Colo. 1981); Wells v. Lodge Props., Inc., 976 P.2d 321, 324 (Colo.
App. 1998); Coates, 865 P.2d at 926. Rangeview also offered
expert testimony that the proposed site plan would result in a
decrease in home values in adjacent neighborhoods, including
Rangeview Estates. Rangeview’s complaint alleges that Eades
and Sellery own homes in the Rangeview Estates neighborhood.
Therefore, we conclude that the record supports a showing of an
injury-in-fact, that Rangeview had standing, and that the trial
court had jurisdiction to adjudicate the claims before it. See
Bowen/Edwards Assocs., Inc., 830 P.2d at 1052.
9
¶ 13 Although Rangeview’s complaint could have been more
complete and specific regarding their alleged injuries relating to
the absence from the site plan of an outdoor gathering space, the
record supports the conclusion that the properties surrounding
the gas station and convenience store would suffer economic and
aesthetic harm. See Ainscough v. Owens, 90 P.3d 851, 855
(Colo. 2004) (it is sufficient to allege harm based on aesthetic
issues); see also Thornton, 629 P.2d at 609 (diminuition in value
can support standing). Because the record supports such a
potential injury, we address the issues raised on appeal.
III. City of Aurora SIR Districts
A. Preservation and Review Standards
¶ 14 The parties agree that Rangeview properly preserved its
claims for appeal.
¶ 15 C.R.C.P. 106(a)(4) provides judicial review of a decision of
any governmental body or any lower judicial body exercising
judicial or quasi-judicial functions to determine whether the body
exceeded its jurisdiction or abused its discretion. Bd. of Cty.
Comm’rs v. O’Dell, 920 P.2d 48, 49 (Colo. 1996); Canyon Area
Residents for the Env’t v. Bd. of Cty. Comm’rs, 172 P.3d 905, 907
10
(Colo. App. 2006). The district court has no factfinding authority
in such cases, and our review is the same as that exercised by
the district court. Canyon Area Residents, 172 P.3d at 907. Our
review is limited to whether City Council exceeded its authority
or abused its discretion in granting the application to rezone the
property. Id.
¶ 16 A governmental body abuses its discretion when its decision
is not supported by any competent evidence in the record. Id.
“No competent evidence” means that the decision of the
governing body was “so devoid of evidentiary support that it can
only be explained as an arbitrary and capricious exercise of
authority.” Ross v. Fire & Police Pension Ass’n, 713 P.2d 1304,
1309 (Colo. 1986) (citation omitted). A reviewing court may also
consider whether the governing body misconstrued or misapplied
the law. See Canyon Area Residents, 172 P.3d at 907.
¶ 17 Interpretation of a municipal ordinance involves a question
of law subject to de novo review. MDC Holdings, Inc. v. Town of
Parker, 223 P.3d 710, 717 (Colo. 2010). The same rules of
construction apply in interpreting ordinances as in construing
statutes. Walter G. Burkey Tr. v. City & Cty. of Denver, 2012 COA
11
20, ¶ 8. We look to the plain language of the ordinance in order
to give it effect. Id.
B. Outdoor Gathering Space
¶ 18 Rangeview argues that City Council abused its discretion by
approving Mitrah’s site plan because the plan did not include an
outdoor gathering space as mandated by the SIR design
standards. We disagree.
1. Law
¶ 19 With regard to SIR districts, the Aurora Municipal Code
(Code) states that “[t]he design of any proposed development in
the SIR district . . . shall include an outdoor gathering space that
is appropriate to the situation and scale of the site.” Aurora
Mun. Code § 146-736(A)(7). According to the Code, “[t]he
purpose of the [SIR] district is to allow a compatible mix of
commercial, civic and residential uses in areas suitable for infill
development and redevelopment,” and “[t]he SIR district is
intended to be a flexible zoning district that will support new
businesses and maximize living choices.” § 146-732(A). The
Code further provides that “[a]ny development within the SIR
district shall fully comply with all applicable City Code
12
requirements, except as may otherwise be specified in this
division or in the [SIR] handbook.” § 146-733(A); see also
Garrido v. Dudek, 731 F.3d 1152, 1155 (11th Cir. 2013) (relying
on relevant portions of Florida Medicaid handbook when
handbook was incorporated by reference in specific relevant
regulation).
¶ 20 The SIR Design Handbook states:
This handbook describes general concepts and
guidelines for development and principles of
design that are flexible and predictable to
implement. Every element described will not
apply to every development. While the
handbook is meant to provide guidance to the
design community and a basis for development
review for city staff, the city will be open to
new ideas and flexible in the interpretation of
these guidelines. These guidelines are not
intended to be applied exactly or literally when
such application will inhibit beneficial
development and redevelopment in the SIR
Zoning District.
City of Aurora, Sustainable Infill and Redevelopment Design
Handbook 3 (April 2012), https://perma.cc/ER35-2XNT. The
handbook further provides that “development or redevelopment
projects should plan to provide at least one public space of some
type.” Id. at 20. However, the handbook’s distinct objective is to
13
promote development and redevelopment via its flexible guidelines.
See id. at 3.
2. Analysis
¶ 21 Rangeview argues that the term “shall” in the Code
mandates an open gathering space in every SIR district project.
See Aurora Mun. Code § 146-736(A)(7). However, the Code
defaults to the terms of the SIR handbook, which says that
projects “should” provide a public space. Sustainable Infill and
Redevelopment Design Handbook at 20. The use of “should” in
the handbook’s language indicates discretion. See Aurora Mun.
Code § 146-2000(M) (“The words ‘shall,’ ‘will,’ and ‘must’ are
always mandatory. The words ‘may’ and ‘should’ are
discretionary terms.”); see also Sheridan Redevelopment Agency
v. Knightsbridge Land Co., L.L.C., 166 P.3d 259, 264 (Colo. App.
2007). The handbook specifies that it is meant to be “flexible”
and is not to be interpreted literally when such an interpretation
will inhibit development. Sustainable Infill and Redevelopment
Design Handbook at 3. And, the Code qualifies its language
regarding outdoor gathering spaces by specifying that they be
appropriate to the situation and scale of the site. See Aurora
14
Mun. Code § 146-736(A)(7). As the rezoning proponents argue,
the size of the property, its location immediately adjacent to a
busy street, and the development of a gas station and
convenience store on the lot do not create an appropriate
situation for an outdoor gathering space. Because the SIR
district is a flexible, pro-development guideline, we decline to
overturn City Council’s decision purely on the basis that the site
plan did not contain some sort of outdoor gathering space.
¶ 22 In making its decision, City Council heard testimony
regarding the proximity of the property to the Rangeview Estates
residential development and the potential traffic impact the site
plan could generate. The council also heard from a planning
supervisor who participated in drafting the SIR zoning ordinance
and recommended that the council approve Mitrah’s application.
The council heard testimony from several individuals and
representatives of groups and entities with interests in the area
surrounding the property and received hundreds of documents
for and against Mitrah’s proposed rezoning and site plan
application. City Council considered the following points in favor
of approving Mitrah’s request:
15
The site plan provided considerable new landscaping to
the area, including a line of trees to buffer the
development from Rangeview Estates.
A gas station at the property’s location on Havana Street
would provide a useful refueling option where none
existed.
Uses other than a gas station and convenience store
could create more traffic problems for residents of the
surrounding neighborhoods.
¶ 23 City Council heard arguments and received supporting
evidence and documents from proponents and opponents of the
rezoning and considered all of it before voting to approve the site
plan. Because City Council’s approval was supported by
competent evidence, City Council did not abuse its discretion.
See Canyon Area Residents, 172 P.3d at 907.
C. SIR Zones and “Infill Development Parcel”
¶ 24 Rangeview argues that City Council abused its discretion in
rezoning the property to a SIR district when the property does
not meet the requirements of an “infill development parcel” as
defined in the Code. We disagree.
16
1. Additional Facts
¶ 25 The property’s 300-foot western boundary borders
Rangeview Estates, which, at the time of City Council’s decision,
had been developed for less than eight years. This 300-foot
border comprises 26.1% of the property’s boundaries. The
parties do not dispute that less than seventy-five percent of the
property’s boundaries have been developed for at least ten years.
¶ 26 During the pendency of the zoning application process, an
abandoned building — previously a home and then a medical
office — occupied the property. That building has since been
torn down.
2. Law and Analysis
¶ 27 The Code states that SIR zoning districts are appropriate “in
areas suitable for infill development and redevelopment.” Aurora
Mun. Code § 146-732(A). The Code does not specifically define
“infill development” or “redevelopment.” Rangeview argues that
the property does not meet the definition of an “infill development
parcel” because it does not have at least seventy-five percent of
its borders adjacent to property that has been developed for at
17
least ten years. For this reason, Rangeview contends that the
City Council abused its discretion. We are not persuaded.
¶ 28 The Code defines an “infill development parcel” as “an area .
. . that . . . includes no more than 20 acres of land, and where
the land along at least 75 percent of the boundaries of the
proposed subdivision . . . has been developed for a period of at
least ten years.” Aurora Mun. Code § 146-2001.
¶ 29 The term “infill development parcel” does not appear in the
SIR district section of the Code and is only defined in the general
definitions section applicable to the entire Code. See Aurora
Mun. Code §§ 146-700 to 146-738. The SIR district section of
the Code only references “infill development and redevelopment.”
Aurora Mun. Code § 146-732(A). Had the drafters of the SIR
zoning ordinance meant for the definition of “infill development
parcel” to apply to “infill development and redevelopment,” they
would have included more specific language to that effect in the
ordinance.3 See Burkey Tr., ¶ 8 (we look to the plain language of
3Rangeview argues that the term “infill development parcel” does
not appear in any zoning district ordinances, other than section
18
the ordinance in order to give effect to the drafters’ intent); see
also Gessler v. Doty, 2012 COA 4, ¶ 14 (when two provisions in a
code conflict, the more specific prevails). Without reference in
the SIR section of the Code to “infill development parcel,” the
definition in other sections of the Code is irrelevant to our
interpretation. Rather, as Rangeview admits, the language of the
SIR district ordinance uses the term “infill” as a modifier for
“development and redevelopment.” Generally, infill means “to fill
in.” Webster’s Third New International Dictionary 1159 (2002).
Thus, the SIR district ordinance’s references to development and
redevelopment mean to fill in empty land and does not impose
additional boundary requirements.
146-1101 of the Code, which references the percent of small lots
which can be included in an infill development parcel, and,
therefore, its inclusion in the definitions section is superfluous if it
is not applied to “infill development and redevelopment” as
referenced in the SIR district section. However, the inclusion of the
term in the Code on its own provides purpose for the definition and
does not mean that the definition should be applied to any other
term utilizing similar words. See Rush Creek Solutions, Inc. v. Ute
Mountain Ute Tribe, 107 P.3d 402, 406 (Colo. App. 2004) (we may
affirm on any grounds supported by the record).
19
¶ 30 Because the language’s ordinary meaning does not reference
any requirement related to the proportions of developed
boundaries, we cannot say that City Council abused its
discretion by approving Mitrah’s rezoning request even though
the property would not meet the definition of an “infill
development parcel.” See Burkey, ¶ 8.4
IV. Conclusion
¶ 31 The judgment is affirmed.
JUDGE MILLER concurs.
JUDGE TAUBMAN concurs in part and dissents in part.
4 Mitrah also argues that, because the property already had a
building on it, the proposed construction was properly classified as
redevelopment. Because we conclude that City Council did not
abuse its discretion in approving the rezoning request, regardless of
whether the proposed plan included development or redevelopment,
we need not address this argument.
20
JUDGE TAUBMAN, concurring in part and dissenting in part.
¶ 32 This case involves the Aurora City Council’s (City Council)
approval of a rezoning application allowing the development of a
convenience store/gas station and the challenge to that approval
by Rangeview Estates and two neighbors, Pamela Eades and
John Sellery (collectively Rangeview plaintiffs). Rangeview raised
two issues on appeal, arguing that the City Council abused its
discretion by rezoning the property without it meeting the
requirements of an “infill development parcel” as defined in the
municipal code and by approving the site plan without it
including an outdoor gathering space required by Aurora’s new
Sustainable Infill Redevelopment (SIR) zoning district.
¶ 33 Standing is a threshold issue that must be satisfied to
decide a case on the merits. Ainscough v. Owens, 90 P.3d 851,
855 (Colo. 2004). To establish standing, a plaintiff must have
suffered an injury in fact, and this harm must have been to a
legally protected interest. Id. A legally protected interest
“emanates from a constitutional, statutory, or judicially created
rule of law that entitles the plaintiff to some form of judicial
21
relief.” Bd. of Cty. Comm’rs v. Bowen/Edwards Assocs., 830 P.2d
1045, 1053 (Colo. 1992).
¶ 34 I agree with the majority’s conclusion that standing may be
based on information contained in the record, together with the
allegations of the complaint. See id. Under this approach, I
conclude that the Rangeview plaintiffs have standing to argue
that the City Council abused its discretion in rezoning the
property to an SIR district when the property does not meet the
requirements of an infill development parcel as defined in the
Aurora Municipal Code.
¶ 35 As to the outdoor gathering space issue, I agree that the
Rangeview plaintiffs allege they had a legally protected interest
because Eades and Sellery live very close to the proposed
convenience store/gas station, and Rangeview Estates is also
located nearby. However, I respectfully disagree with the
majority that the Rangeview plaintiffs have standing to raise the
issue of the failure to include an outdoor gathering space at the
convenience store/gas station because the Rangeview plaintiffs
have not alleged an injury in fact to a legally protected interest.
22
¶ 36 The complaint alleges that the convenience store/gas station
plan fails to include an outdoor gathering space; however, the
complaint contains no allegations that the Rangeview plaintiffs
will be harmed in any way by this failure.
¶ 37 Looking beyond the four corners of the complaint, while
some testimony at the hearing before City Council noted
generally that the proposed convenience store/gas station did not
comply with any of the eight SIR zoning district standards or
goals, the Rangeview plaintiffs presented no testimony
whatsoever indicating that they would be harmed by the lack of
an outdoor gathering space. Although one neighbor of the
Rangeview plaintiffs testified before the City Council about the
failure to comply with the outdoor gathering space provision, he
did not note that any harm would result from the failure of the
developer to provide an outdoor gathering space. Significantly,
this issue was not raised at all by the Rangeview plaintiffs at the
earlier hearing before the zoning commission. Therefore, in my
view, neither the record nor the complaint contains sufficient
evidence to accord standing to the Rangeview plaintiffs on this
issue.
23
¶ 38 Standing is not conveyed by any injury that is overly
“indirect and incidental” to a defendant’s action. Ainscough, 90
P.3d at 856 (citation omitted). Although usually injury is alleged
in terms of physical damage or economic harm, it is sufficient to
allege harm based on aesthetic issues. Id. In Reeves v. City of
Fort Collins, 170 P.3d 850, 854 (Colo. App. 2007), a division of
this court held that an individual living eight blocks from a
development had standing to challenge a city council’s
characterization of interior living floors of the development
project and a rooftop penthouse as mezzanines, thus avoiding
the height restrictions of the local zoning code. Similarly, in
Wells v. Lodge Properties, Inc., 976 P.2d 321, 324 (Colo. App.
1998), a division of this court held that a property owner had
standing to challenge a development project that she alleged
would obstruct her views and limit her access to open space. In
these decisions, unlike the circumstances presented here, there
was a specific allegation that a property owner would be harmed
not only by the approval of a development project, but by the
specific provision that the property owner challenged.
24
¶ 39 Here, the Rangeview plaintiffs could easily have alleged that
their interest in aesthetic issues in its neighborhood would be
harmed by the lack of outdoor gathering space. However, they
did not do so. Neither the Rangeview plaintiffs nor the majority
points to anywhere in the record where the Rangeview plaintiffs
allege that they would suffer aesthetic harm, or any type of harm,
by the lack of outdoor gathering space.
¶ 40 A treatise on zoning notes that “to be an aggrieved person
one must establish a specific personal and legal interest in the
subject matter of the decision, as distinguished from a general
interest that would concern all members of the community.” 4
E.C. Yokley, Zoning Law and Practice § 24-3(a) (4th ed. 2011).
Decisions of courts in other jurisdictions have concluded that a
plaintiff must allege specific harm resulting from a zoning board
decision. See Valcourt v. Zoning Bd. of Appeals, 718 N.E.2d 389,
392 (Mass. App. Ct. 1999) (to have standing to appeal a decision
of the zoning board, a plaintiff must offer specific facts to
establish perceptible harm); Shelter Island Ass’n v. Zoning Bd. of
Appeals, 869 N.Y.S.2d 615, 617 (N.Y. App. Div. 2008)
(petitioner’s generalized allegations of increased traffic and the
25
effect on the water table resulting from the addition of one or two
tenants to the subject property are insufficient to establish
standing); Friends of the Rappahannock v. Caroline Cty. Bd. of
Supervisors, 743 S.E.2d 132, 138 (Va. 2013) (proximity alone is
insufficient to plead justiciable interest in appealing land-use
decision; to demonstrate standing, complaint must also allege
sufficient facts showing harm to some personal or proprietary
right different from that suffered by the public generally).
¶ 41 Accordingly, I do not believe that the Rangeview plaintiffs
alleged that they had suffered any injury in fact. In sum, while I
agree with the majority’s resolution of the second issue, I would
dismiss the Rangeview plaintiffs’ first issue for lack of standing.
26