Businesses Can Fight Proposed Strip Club

Special Report - December 29, 2008
Business owners protesting the proposed construction of a strip club near their properties on Mount Hermon Road in Wake County won the latest round of a three-year legal battle on December 12, when the North Carolina Supreme Court ruled that they have standing to contest the city’s issuance of a permit that would allow the establishment of a sexually oriented business. The case began in November 2005, when the owners of the proposed strip club, “The Runway,” filed an application for a “Special Use Permit” with the Raleigh Board of Adjustment that would allow them to build the club on property located on Mount Hermon Road near RDU airport. Their request was challenged by the owners of Triangle Equipment Company, Triangle Coating, Inc., and Angus Barn, whose businesses are located either adjacent to or near the location of the proposed club. The Raleigh-based citizen action group, Called2Action, was also involved in protesting the club. In February 2006, the Raleigh Board of Adjustment granted the permit for the sexually oriented business. The business owners appealed the decision to the Superior Court of Wake County, arguing that the club would be bad for their businesses by causing increased traffic and noise, various safety concerns, and secondary adverse effects, such as increased crime. The owners of the club and the Raleigh board filed a motion to dismiss the complaint, arguing in part that “the petitioners lacked standing to challenge the board’s decision” under North Carolina law. The Wake Country trial court disagreed, and reversed the board’s decision to grant the special use permit. The defendants appealed the trial court’s decision to the State Court of Appeals, which reversed the trial court’s ruling in November 2007 on the grounds that the “Petitioners did not sufficiently allege ‘aggrieved party’ status” and therefore lacked standing to contest the board’s decision. The business owners appealed that decision to the North Carolina Supreme Court.

In its 6 to 1 ruling, written for the majority by Justice Edward Thomas Brady, the North Carolina Supreme Court reversed the decision by the Court of Appeals, noting that the petitioners did have standing to contest the “special use permit” under the North Carolina Constitution and previous case law. Justice Brady wrote for the majority: “We disagree with the conclusion of the Court of Appeals and hold that the allegations and evidence presented by petitioners in regards to the ‘increased traffic, increased water runoff, parking, and safety concerns,’ as well as the secondary adverse effects on petitioners' businesses, were sufficient special damages to give standing to petitioners to challenge the issuance of the permit.” State Supreme Court Justice Patricia Timmons-Goodson dissented from the majority opinion, arguing that under North Carolina law and prior case law, “adjacent and nearby property owners” only have standing for appeal if they can prove that they would experience a decrease in property value from the proposed business. “The record of the hearing before the Board of Adjustment clearly shows that petitioners have failed to present evidence that they would suffer a diminution in property values,” Justice Timmons-Goodson wrote in her dissent. The 6 to 1 decision remands the case, Mangum v. Raleigh Board of Adjustment, back to the North Carolina Court of Appeals to consider issues that it did not address in its previous ruling, which involve other arguments raised by the defendants.

“This decision by the North Carolina Supreme Court is a victory for families in our state, and upholds the right of local citizens, including business owners, to protest the opening of sexually oriented businesses in their communities,” said Jere Royall, counsel for the North Carolina Family Policy Council. “The U.S. Supreme Court has upheld zoning restrictions for sexually oriented businesses when the purpose of such regulations was not to preclude speech, but to prevent harmful secondary effects such as increases in crime and decreases in property values.”

Copyright © 2008. North Carolina Family Policy Council. All rights reserved.