Poovey v. Vista North Carolina Limited Partnership, 051920 NCCA, COA19-302

Docket Nº:COA19-302
Opinion Judge:STROUD, JUDGE
Party Name:CHAD POOVEY and ANGELA POOVEY, Plaintiffs, v. VISTA NORTH CAROLINA LIMITED PARTNERSHIP and APC TOWERS, LLC, Defendants, v. 130 OF CHATHAM, LLC, et al., Nominal Defendants.
Attorney:Cannon Law, P.C., by William E. Cannon, Jr., Mark A. Wilson, and Tiffany F. Yates, for plaintiffs-appellants. Hamilton Stephens Steele + Martin, PLLC, by M. Aaron Lay and Daniel J. Finegan, for defendant-appellee Vista North Carolina Limited Partnership. Nesxen Pruet, PLLC, by David S. Pokela and...
Judge Panel:Judges DILLON and YOUNG concur.
Case Date:May 19, 2020
Court:Court of Appeals of North Carolina
 
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CHAD POOVEY and ANGELA POOVEY, Plaintiffs,

v.

VISTA NORTH CAROLINA LIMITED PARTNERSHIP and APC TOWERS, LLC, Defendants,

v.

130 OF CHATHAM, LLC, et al., Nominal Defendants.

No. COA19-302

Court of Appeals of North Carolina

May 19, 2020

Heard in the Court of Appeals 2 October 2019.

Appeal by plaintiffs from order entered 26 January 2018 by Judge J. Thomas Davis in Superior Court, Rutherford County, No. 16-CVS-588

Cannon Law, P.C., by William E. Cannon, Jr., Mark A. Wilson, and Tiffany F. Yates, for plaintiffs-appellants.

Hamilton Stephens Steele + Martin, PLLC, by M. Aaron Lay and Daniel J. Finegan, for defendant-appellee Vista North Carolina Limited Partnership.

Nesxen Pruet, PLLC, by David S. Pokela and Alex R. Williams, for defendant-appellee APC Towers, LLC.

STROUD, JUDGE

Plaintiffs appeal from an order granting summary judgment in favor of Defendants and denying their motion for summary judgment. Because Defendant Vista had the authority to amend the declaration and the amendment is reasonable, the trial court did not err in granting summary judgment in favor of Defendants and denying Plaintiffs' motion for summary judgment.

I. Background

In 2010, Plaintiffs became the owners of a lot in the Riverbend Highlands subdivision in Rutherford County. Defendant Vista North Carolina Limited Partnership ("Vista") is the developer of Riverbend Highlands Subdivision, a residential subdivision with 573 lots. Defendant Vista is also the declarant of the covenants and restrictions for the subdivision. Riverbend Highlands is in a heavily wooded mountainous area, and most of the 573 lots are vacant, including Plaintiffs' lot.

Riverbend Highlands ("Subdivision") is governed by the "Amended and Restated Declaration of Covenants and Restrictions as of July 16th 2007" ("2007 Declaration").1 These restrictions state in relevant part: Section 4.1. Residential. Each of the Lots in the Community shall be, and the same hereby are, restricted exclusively to single-family residential use and shall be occupied only by a single family, its nurses, aides, servants, or caretakes, and guests.

Section 4.3. Business Activities. No business activities shall be conducted on any portion of this Planned Community, not any Lot nor any Residence, provided, however; private offices may be maintained in residences constructed on Lots so long as such use is incidental the primary residential use of the Lot and is approved by the Board of Directors.

Section 5.1 Utility Easements. Developer hereby reserves the right without further consent from any land owner to grant to any public utility company, municipality, the Association or other governmental unit, water or sewer company an easement for a right-of-way in all streets and roads on which the land hereby conveyed abuts and also in and to a 10 foot strip of land located along the front lot line, and a 5 foot strip of land located along any other lot line, for the right to erect and lay, or cause to be erected or laid, maintained, removed or repaired, all light, telephone and telegraph poles, wires, water and gas pipes and conduits catch basins, surface drains, sewage lines, access easement and other customary or usual appurtenances as may, from time to time, in the opinion of the Developer, or any utility company, or governmental authority, be deemed necessary for maintenance and repair of said utilities or other appurtenances. Any right of recourse on account of temporary or other inconvenience caused thereby against Developer is hereby waived by the Buyer.

Section 10.4. Amendments. Any of the provisions of this Declaration may be annulled, amended or modified as to all or part of the lots subject to these restrictions at any time by the filing in the Office of the Register of Deeds of Rutherford County of any instrument setting forth, such annulment, amendment or modification, executed by either the Developer, or assigns at any time during which it owns of record a lot in Riverbend Highlands Subdivision or adjacent properties which it has or intends to subdivide or the Owners of record (as shown upon the records in the Officer of the Register of Deeds for Rutherford County at the time of filing of such instrument) of sixty-seven perfect (67%) of the Lots subject to these restrictions. Should a dispute arise between an amendment made by the owners of record of sixty-seven (67%) of the Lots subject to the restrictions versus an amendment made by the Developer, the Developers amendment shall prevail. The procedure for amendment shall follow the procedure set forth in Section 47F-2-117 of the Planned Community Act. No amendment shall become effective until recorded in the office of the Register of Deeds of Rutherford County, North Carolina.

In 2015, Defendant Vista was approached by Defendant APC Towers, LLC, (collectively "Defendants") about installing a wireless communications tower ("Tower") within Riverbend Highlands. In November 2015, Defendant Vista entered into a lease with Defendant APC Towers to permit the construction and operation of the Tower on a lot owned by Defendant Vista. In March 2016, Defendant Vista recorded an amendment to the 2007 Declaration ("March 2016 Amendment") which deleted Section 5.1 of the 2007 Declaration and replaced it with this provision: Section 5.1. Utility and Communications Facility Easements and Leaseholds. Developer hereby reserves the right without further consent from any Owner to grant to any public utility company, municipality, private entity, the Association and any governmental unit, water or sewer company an easement for a right-of way in all streets and roads on which the land hereby conveyed abuts, in and to a 10 foot strip of land located along the front lot line, a 5 foot strip of land located along any other lot line, or an easement or leasehold interest in all or any portion of a lot, for the right to erect and lay, or cause to be erected or laid, maintained, removed or repaired, all light, telephone and telegraph poles, wireless communications tower(s), wires, water and gas pipes and conduits catch basins, surface drains, sewage lines, access easement and other customary or usual appurtenances as may, from time to time, in the opinion of the Developer, or the applicable grantee or lessee, as be deemed necessary by such party for maintenance and repair of said utilities or other appurtenances hereinabove delineated. Any right of recourse on account of temporary or to her inconvenience caused thereby against Developer is hereby waived by each Owner. Notwithstanding anything contained in this Declaration, the restrictions contained in Article 4 or otherwise in this Declaration shall not apply to any Lot whereon Declarant grants an easement or leasehold interest pursuant to this Section 5.1, with respect to the grantee's or lessee's use of and construction at such Lot.

In April 2016, Defendant Vista sent a letter to Plaintiffs and offered to exchange their lot for one in another nearby development, either Riverbend Highlands or Riverbend at Lake Lure. Other affected owners successfully exchanged lots with Defendant Vista, but Plaintiffs declined to do so. Work began on the Tower on 11 May 2016. Plaintiffs' counsel sent Defendant Vista a letter dated 11 May 2016 informing Defendant Vista that the covenants restrict use of the lots to "single family residential use." The letter states, "Should you attempt to violate these covenants by erecting a cell tower on a platted lot, my client will have no choice but to seek injunctive relief prohibiting the construction and seek reimbursement of their reasonable attorney's fees pursuant to the Planned Community Act." Plaintiffs sent a letter to Defendant APC Towers on 24 May 2016 informing it of their intent to sue. Plaintiffs filed a complaint asking the trial court for a declaratory judgment and injunctive relief on 1 June 2016.2

The Tower was completed in July 2016. The dimensions of the Tower are approximately thirty-three feet six inches in diameter at the base. The tower pole is ten feet in diameter and has a height of 195 feet. It is on a lot adjacent to Plaintiffs' lot. The president of Vista North Carolina, Inc., the general partner in Defendant Vista, stated in his affidavit that "[t]he tower was constructed for AT&T to provide high-speed mobile broadband internet, phone, and related telecommunications services."

On 11 August 2016, Defendant Vista filed a motion to dismiss, answer, and affirmative defenses. On 12 August 2016, Defendants filed a joint motion for judgment on the pleadings. Their motion noted the various provisions of the 2007 Declaration and the March 2016 Amendment quoted herein and that Defendant Vista was the developer of the subdivision and still owned a majority of the 573 lots in the subdivision. Thus, Defendant Vista contended that as the "developer" it had...

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