Martin v. Landfall Council of Associations, Inc.
| Decision Date | 21 April 2020 |
| Docket Number | No. COA19-883,COA19-883 |
| Parties | Gilmer MARTIN, II, and wife, Jean Sutton Martin, Plaintiff-Appellants/Cross-Appellees, v. The LANDFALL COUNCIL OF ASSOCIATIONS, INC., et al, Defendant-Appellee/Cross-Appellant. |
| Court | North Carolina Court of Appeals |
Block, Crouch, Keeter, Behm & Sayed, LLP, by Christopher K. Behm, Sigmon Law, PLLC, by Mark R. Sigmon, for the Plaintiffs.
Cranfill Sumner & Hartzog LLP, by Rebecca A. Knudson, Patrick M. Mincey, and Melanie Huffines, Ward and Smith, P.A., by Christopher S. Edwards, Alexander C. Dale, and Allen N. Trask, III, for the Defendant.
Gilmer Martin, II, and Jean Sutton Martin ("Plaintiffs") appeal from an order granting summary judgment for The Landfall Council of Associations, Inc., ("Defendant") on Plaintiffs’ first and fourth claims for relief and on Defendant’s first claim for relief, and denying Plaintiffs’ motion for summary judgment; an order granting partial summary judgment for Defendant; and an order entering judgment on the pleadings for Defendant. Defendant cross-appeals from the award of attorneys’ fees for Defendant.
Plaintiffs’ Property is subject to the terms and agreements of the Declaration of Covenants, Conditions, Easements and Restrictions for Villas at Landfall Subdivision (the "Declaration") as well as the Bylaws of Villas at Landfall Owners Association, Inc. (the "Bylaws"). Section 1.1.2 of the Landfall Architectural Review Committee Guidelines and Procedures (the "Guidelines")1 read, in part:
Deed restrictions require that the [Architectural Review Committee] approves in advance ... landscaping and all additions/alterations affecting the outer appearance of a building or a lot. This includes[ ] but is not limited to: home landscape renovations. ... Final approval by the ARC must be received in writing prior to the start of any clearing, grading, landscaping or construction.
Article VI, Section 23 of the Declaration states that all grass areas of yards must be sodded. Article VII, Section 8 states that "no trees, bushes, shrubs, grasses, or other vegetation whatsoever may be removed, planted, or installed from or on any lot without prior written approval" of the Board. The Governing Documents require that members of the owners’ association, such as Plaintiffs, must submit a Form 3 Modification to Existing Home ("Form 3") to Defendant for any proposed modification to their existing landscape.
Plaintiffs assert that the tree cover on their Property and adjoining property "results in the majority of the Property being shaded for large portions of the average day" and that many of their trees and neighbors’ trees are protected from removal by municipal and county ordinances. Plaintiffs’ natural grass has "repeatedly and continuously" struggled since the beginning of their ownership. They hired professional landscapers, horticulturists, and arborists who advised Plaintiffs that the shade in their yard caused their grass to die. Plaintiffs replaced the natural grass in whole or in part six times. They also had their trees thinned and limbed several times to reduce the shade coverage.
Article V of the Declaration titled "Architectural Control" gives the Board of Directors of the Villas at Landfall ("Board" or "Board of Directors") the authority to approve or disapprove landscape improvements requested by homeowners. Article V requires that such requests be submitted in writing. Plaintiffs submitted a Form 3 to Defendant’s Architectural Review Committee ("ARC") on 11 May 2015 to request permission to replace their yard with artificial turf. The request stated:
In response to this request, the ARC requested samples of the artificial turf products that Plaintiffs sought to use as well as identification of other properties governed by Defendant that had used similar products, which Plaintiffs provided. Members of the ARC "performed a visual inspection" of the Property.
While awaiting the ARC’s response, Plaintiffs purchased artificial turf but did not install it. The ARC held a meeting on 20 May 2015 to discuss various requests including that of Plaintiffs, denying Plaintiffs’ request. On 9 June 2015, the ARC informed Plaintiffs of its decision stating as follows:
After receiving the ARC’s denial of their request, Plaintiffs installed approximately 1,700 square feet of artificial turf.
On 29 July 2015, Plaintiffs received a letter from Priscilla Rogers, an employee of Defendant and an ARC liaison. In this letter, Ms. Rogers related:
It has come to the attention of the Landfall Architectural Review Committee that you have installed the artificial turf on your lawn. This cannot be approved as your application for the artificial turf was denied in June, 2015. Please have the artificial turf removed and submit a revised landscape plan within the next 30 days. You will not have to wait for a regularly scheduled meeting for review of the revised plan. Please refer to your letter from the ARC dated June 9, 2015.
Plaintiffs responded to this letter on 25 August 2015, stating, in relevant part: "After six failed attempts using sod with natural grass, we have followed the recommendation of professional landscapers and horticulturists, as well as turfgrass entomologists in light of ground pearl prevalence, and have begun the process of installing sod with synthetic grass."
Thereafter, Plaintiffs received a letter on 21 September 2015 from an ARC coordinator, Shelly Kearney, which stated as follows:
In compliance with North Carolina statutes, the Board of Directors has instituted a program whereby you will be given an opportunity to be heard at a hearing of the Association’s Adjudicatory Panel where you may present and give reason, if any, why a fine and/or other penalty should not be levied against you.
A hearing was set for 4 November 2015. Plaintiffs presented arguments and evidence at the hearing.
Plaintiffs were then advised by letter on 9 November 2015 as follows:
Plaintiffs appealed the decision in writing on 20 November 2015 and requested an opportunity to be heard. A hearing before Defendant’s Board of Directors was held on 26 January 2016 on Plaintiffs’ appeal. Plaintiffs again presented argument and evidence. The Board affirmed the decision on 5 February 2016 by letter, stating:
Consistent with our conversation last week, both the Council and I encourage you to submit a plan to the ARC for the alteration of landscaping on your property. That is the appropriate manner for you to pursue approval of a landscaping plan, and to present alternatives if you are inclined to do so. Your property will remain in violation, and the daily fines will continue to accrue, until you restore the natural vegetative sod landscaping as it was prior to the unapproved alteration, or until your landscaping conforms with a plan that has been approved by the ARC.
On 20 May 2016, Defendant sent Plaintiffs a letter indicating that the balance of fines was $10,900 and that it intended to institute legal proceedings against Plaintiffs. Defendant served and filed a claim of lien pursuant to N.C. Gen. Stat. § 47F-3-116 on Plaintiffs’ Property in the principle amount of $14,900 on 29 June 2016.
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