Wheeler v. Southport Seven Planned Unit Dev.

• Decision Date: 27 September 2012
• Docket Number: No. 20110323.,20110323.
• Citation: 821 N.W.2d 746,2012 ND 201
• Parties: Sharon WHEELER, Plaintiff and Appellant v. SOUTHPORT SEVEN PLANNED UNIT DEVELOPMENT, Carl Bye, Individually, and as a member of the Board of Directors, Defendants and Appellees.
• Court: North Dakota Supreme Court

821 N.W.2d 746

2012 ND 201

Sharon WHEELER, Plaintiff and Appellant

v.SOUTHPORT SEVEN PLANNED UNIT DEVELOPMENT, Carl Bye, Individually, and as a member of the Board of Directors, Defendants and Appellees.

No. 20110323.

Supreme Court of North Dakota.

Sept. 27, 2012.

Deborah J. Carpenter, Bismarck, N.D., for plaintiff and appellant.

Charles (Casey) L. Chapman, Bismarck, N.D., for defendants and appellees.

CROTHERS, Justice.

[¶ 1] Sharon Wheeler appeals from a judgment requiring her to pay assessments to defendant Southport Seven Planned Unit Development (“Southport”). We conclude the district court did not err finding Southport had authority to impose assessments against Wheeler as a property owner in Southport, the court did not err finding the amount Wheeler owed Southport and the court did not err in ordering Wheeler to pay Southport costs. We affirm.

I

[¶ 2] In August 1997, the Southport Development Limited Liability Company filed an amended declaration for the Southport Development Planned Unit Development Project I in south Bismarck. The developer had created the Southport development, which was split into several smaller planned unit developments (“PUDs”). The parties do not dispute the defendant Southport is “one and the same” as the Southport PUD Project I under the amended declaration governing the Southport development. The amended declaration was recorded in the Burleigh County register of deeds on August 15, 1997, and the preamble provides that Southport Development, “as the owner of the [real property], does hereby dedicate the same to a planned unit development project as herein defined, which project shall be subject to the terms, conditions, and provisions of this Declaration, which terms, conditions, and provisions shall be deemed to run with the land and inure for the benefit of the undersigned developer and all purchasers of the units in the project, in perpetuity.” The amended declaration states “[n]o portion of the subject project may be removed from the project by vacation or partition, except by the unanimous consent of all record title owners of all of the PUD lots and the holders of all mortgages which constitute mortgage liens upon the subject PUD lots and tracts.” The amended declaration also provides for a Southport association of owners, with each unit owner “deemed” a member of the association.

[¶ 3] In September 2005, Wheeler purchased a home in Southport by warranty deed, which provided:

“WITNESSETH, for and in consideration of the sum of Ten Dollars ($10.00), grantor does hereby GRANT to the grantee all of the following real property lying and being in the County of Burleigh, State of North Dakota, and described as follows, to-wit:

“TRACT 1240, OF LOTS THREE (3) AND SEVEN (7), BLOCK ONE (1), SOUTHPORT PHASE II TO THE CITY OF BISMARCK, BURLEIGH COUNTY, NORTH DAKOTA PURSUANT TO THE PLAT FILED FOR RECORD AS DOCUMENT NO. 628834, AS INCORPORATED INTO SOUTHPORT DEVELOPMENT PLANNED UNIT DEVELOPMENT PROJECT I DECLARATION OF PROJECT RECORDED AS DOCUMENT NO. 494065, AS AMENDED, LOCATED UPON LOT 7, BLOCK 1, SOUTHPORT PHASE II; LOT B–1 AND LOT C OF LOT 53, BLOCK 1 SOUTHPORT, AND TRACTS 1406 AND 1408 OF LOT 7, BLOCK 1, SOUTHPORT PHASE II AND LOT 54, BLOCK 1, SOUTHPORT, AND LOT B OF LOT 54, BLOCK 1, SOUTHPORT, ALL IN THE CITY OF BISMARCK, BURLEIGH COUNTY, NORTH DAKOTA, TOGETHER WITH AN UNDIVIDED INTEREST IN THE COMMON AREAS DECLARED APPURTENANT TO SUCH UNIT.

“And the grantor for itself, its successors and assigns, does covenant with the grantee that it is well seized in fee of the land and premises aforesaid and has good right to sell and convey the same in manner and form aforesaid; that the same are free from all incumbrance, except installments of special assessments or assessments for special improvements which have not been certified to the County Auditor for collection, and except easements, rights-of-way, restrictive covenants, and mineral conveyances and reservations of record, and the above granted lands and premises in the quiet and peaceable possession of the grantee, against all persons lawfully claiming or to claim the whole or any part thereof, the said grantor will warrant and defend.”

[¶ 4] In 2005 and 2006, Wheeler paid Southport fees, dues, and assessments, including fees for snow removal and lawn care. Wheeler, however, was not satisfied with either the snow removal or the lawn care provided by Southport, and in about 2006, she sent a letter to the Southport association, indicating she no longer wanted, and would not pay for, snow removal or lawn care. Wheeler paid for snow removal on one occasion in 2007. In 2007, the Southport association initially filed a lien against Wheeler's property for unpaid assessments, but later withdrew the lien because of a failure to send notice to Wheeler by certified mail. In 2008, Southport filed another lien on her property after notice was given by certified mail. That lien later was released when Wheeler paid funds into escrow.

[¶ 5] In 2009, Wheeler commenced this action against Southport seeking relief from the imposition of dues, fines, and liens filed by Southport against her property and seeking damages for slander to title. Southport answered and counterclaimed for unpaid assessments. The district court granted Southport partial summary judgment, ruling that Wheeler was obligated to pay assessments set by the association because her lot was within Southport PUD Project I; that Wheeler had constructive notice of the amended declaration; and that the association had authority to charge assessments for the maintenance. The court also granted summary judgment dismissing Wheeler's claims for severance from or to disband the association, for slander of title and for Southport's requested injunctive relief. After a bench trial the district court denied Wheeler's claim for release of the escrow funds under the doctrine of accord and satisfaction, dismissed Wheeler's claims against the defendants, enjoined her from preventing the Southport association from performing lawn care, snow removal and other activities authorized by the amended declaration, and awarded Southport a judgment for $2,124.22. Wheeler moved for post-judgment relief under N.D.R.Civ.P. 59 and 60, which the court denied.

II

[¶ 6] Wheeler argues the district court erred in granting partial summary judgment on her claim that Southport lacked authority to impose dues or assessments for non-common areas. She contends that the amended declaration permitted assessments for only common areas, that no common areas existed, that Southport did not set up an appropriate organization or follow proper rules to make assessments and that the dues collected from the other owners were by “joint agreement,” which did not fall under the declaration or by-laws and were not binding on her.

[¶ 7] Our standard for reviewing a grant of summary judgment under N.D.R.Civ.P. 56 is well-established:

“Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record.”

Loper v. Adams, 2011 ND 68, ¶ 19, 795 N.W.2d 899 (quotations omitted).

A

[¶ 8] Southport is a planned unit development. A planned unit development or PUD is a specialized form of zoning ordinance and “differs from the traditional zoning in that the type, density and placement of land uses and buildings, instead of being detailed and confined to specified districts by local legislation in advance, is determined by contract, or deal, as to each development between the developer and the municipal administrative authority, under broad guidelines laid down by state enabling legislation and an implementing local ordinance.” Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 898 (7th Cir.2005) (quoting Old Tuckaway Assocs. Ltd. P'ship v. City of Greenfield, 180 Wis.2d 254, 509 N.W.2d 323, 326 n. 1 (Wis.Ct.App.1993)); see also 7 Richard R. Powell, Powell on Real Property § 53B.01 (Michael Allan Wolf ed., 2012). Although zoning ordinances are not the same as restrictive covenants running with the land and binding subsequent purchasers, one court explained there is little real difference:

“A covenant is a contract and an ordinance isn't—though a PUD is very close to being a covenant because ... it is the product of a deal between a developer and a municipality. No matter; a zoning ordinance has the same effect as a covenant because, unless worded to bind only the current owner, it limits the use of the land by whoever owns it, not just whoever owned it when the ordinance was enacted.... [A] zoning variance creates a restriction that runs with the land, just like a covenant; and there is no relevant difference between a variance and a PUD.”

Sts. Constantine & Helen Greek Orthodox Church, at 899 (internal quotations omitted). See also Benjamin Crossing Homeowners' Ass'n, Inc. v. Heide, 961 N.E.2d 35, 40–41 (Ind.Ct.App.2012) (“The creation of a planned unit development is a legislative act and PUD provisions are zoning...