RICHARD B. PARKER and wife,
ANITA M. PARKER; and LARRY
D. SEVERT and wife, NANCY
H. SEVERT
v
.
Wilkes County
No. 99 CVD 962
BILLY R. HIGGINS and wife,
ROSIE G. HIGGINS
Craige, Brawley, Liipfert & Walker, L.L.P., by William W.
Walker, for plaintiffs-appellants.
No brief filed for defendants-appellees.
THOMAS, Judge.
Plaintiffs appeal the trial court's order that an attempt to
amend restrictive covenants of a subdivision was ineffective as to
defendants' lot.
Plaintiffs contend the trial court erred in determining that:
(1) “as a matter of equity” defendants should not be bound by the
burden of any “amended” restrictive covenants; and (2) the warranty
deed was not a valid and effective instrument to amend the
restrictive covenants. For the reasons herein, we hold defendants
are not bound by the amendments.
Plaintiffs, Richard B. Parker, and wife, Anita M. Parker, andLarry D. Severt and wife, Nancy H. Severt, and defendants, Billy R.
Higgins, and wife, Rosie G. Higgins, are all owners of lots in
Berry Mountain Estates subdivision in Wilkes County. Defendants
bought a lot in the subdivision in May of 1997. At the time, the
original restrictive covenants, recorded on 3 April 1969 in volume
498, pages 81-84 of the Wilkes County Registry, were effective.
They provide in pertinent part:
8. No structure of a temporary character,
tent, shack, garage, barn, basement, trailer
of any type, or other out-building shall be
used on any lot at any time as a residence
either temporarily or permanently.
. . . .
14. These covenants are to run with the land
and shall be . . . automatically extended for
successive periods . . . unless an instrument
signed by a majority of the then owners of the
lots has been recorded, agreeing to change
said covenants in whole or in part.
By 4 November 1998, defendants had obtained all necessary
permits from the county for the placement and construction of a
modular home on their land, and a dealer at Expression Homes
ordered the home.
A majority of the lot owners, including defendants, signed
signature pages attached to a form general warranty deed, recorded
on 6 November 1998, which included the following amendment to the
original restrictive covenants:
No mobile home nor modular home is permitted
on any lot, excepting those in place at the
time of the recording of this amendment.
Defendant Rosie Higgins testified that the amended restrictive
covenant was not attached to the list of signatures two neighborsbrought to her home late one night. She assumed the list she and
her husband signed concerned the ongoing fight against a
neighboring lot owner's undersized modular home, which was in
violation of the original restrictive covenants. The two
neighbors, however, testified that the amendment was attached to
the signature pages.
After learning in March of 1999 that defendants planned to
install a modular home, plaintiffs warned them in writing on 31
March 1999 that any attempt to install the home would result in
legal action. Defendants nevertheless began installing their home
in early May of 1999. Plaintiffs responded by filing a suit
alleging violation of the restrictive covenants. The trial court
entered a temporary restraining order, followed by a preliminary
injunction directing defendants to stop all work on their home.
In a bench trial, the trial court determined that: (1)
defendants should not be bound in equity by the burden of any
“amended” restrictive covenants because defendants had purchased
their home and received all necessary permits from the county for
its placement on their lot before the deed was recorded; (2) the
general warranty deed purporting to amend the original restrictive
covenants is not a valid instrument to amend restrictive covenants;
(3) the injunction should be lifted; and (4) defendants may begin
the process of completing the placement of their home on the
property. Plaintiffs appeal, and argue two assignments of error.
On appeal, a trial court's findings of fact in a bench trial
have the force of a jury verdict and are conclusive if supported bycompetent evidence. Foster v. Foster Farms, Inc., 112 N.C. App.
700, 706, 436 S.E.2d 843, 847 (1993). Conclusions of law drawn by
the court from the facts found, however, involve legal questions
and are always reviewable de novo by the appellate court. Mann
Contr'rs, Inc. v. Flair with Goldsmith Consultants-II, Inc., 135
N.C. App. 772, 775, 522 S.E.2d 118, 121 (1999). Because the facts
are not disputed, we review only the conclusions of law.
Plaintiffs first contend that the trial court erred in
determining that defendants should not, in equity, be bound by any
amended restrictive covenants. It is not necessary to address that
contention, however, because we hold that defendants are not bound
in law by the amended restrictive covenants.
Our courts have held that a vested right may exist where a
party obtained a valid permit, incurred significant expenditures or
obligations in good faith reliance thereon, and then found the
authorization to build revoked based on a subsequently enacted
zoning ordinance. In re Campsites Unlimited, 287 N.C. 493, 500-01,
215 S.E.2d 73, 77 (1975) (citing Keiger v. Board of Adjustment, 281
N.C. 715, 190 S.E.2d 175 (1972); Town of Hillsborough v. Smith, 276
N.C. 48, 170 S.E.2d 904 (1969); Warner v. W & O, Inc., 263 N.C. 37,
138 S.E.2d 782 (1964); Stowe v. Burke, 255 N.C. 527, 122 S.E.2d 374
(1961)). A landowner may establish a vested right by satisfying
certain requirements:
[O]ne who, in good faith and in reliance upon
a permit lawfully issued to him, makes
expenditures or incurs contractual
obligations, substantial in amount, incidental
to or as part of the acquisition of the
building site or the construction or equipmentof the proposed building for the proposed use
authorized by the permit, may not be deprived
of his right to continue such construction and
use by the revocation of such permit, whether
the revocation be by the enactment of an
otherwise valid zoning ordinance or by other
means, and this is true irrespective of the
fact that such expenditures and actions by the
holder of the permit do not result in any
visible change in the condition of the land.
Hillsborough, 276 N.C. at 55, 170 S.E.2d at 909. Where a property
owner has reasonably made a substantial expenditure of money, time,
labor or energy in a good faith reliance of a government approved
land-use, he has a vested right. Michael Weinman Associates
General Partnership v. Town of Huntersville, __ N.C. App. __, __,
555 S.E.2d 342, 345 (2001).
The vested right doctrine does not distinguish between the
landowner who expends money resulting in visible, physical changes
in the condition of the land, and one who expends a like amount
incurring binding contractual obligations for such construction or
acquisition of materials or equipment. Hillsborough, 276 N.C. at
54, 170 S.E.2d at 909. In the present case, there was no visible
change in the condition of the land when the purported amendment
was recorded. However, contractual obligations and expenditures
were made and occurred in reliance on the original restrictive
covenants and existing zoning laws. Defendants entered into a
purchase contract for the modular home only after they presented
the pre-amended restrictive covenants to the manager of Home
Expressions. They then closed on their loan, made the down
payment, and by 4 November 1998, had “obtained all permits needed
from Wilkes County.” There was also adequate evidence of goodfaith on the part of defendants.
Defendants had obtained a vested right to proceed with the
placement of their modular home before the amendment to the
restrictive covenants was recorded. Irrespective of a
consideration of equity, they were not bound by the amendments.
Based on the foregoing, we likewise do not address plaintiffs'
second assignment of error.
AFFIRMED.
Judges WYNN and WALKER concur.
Report as 30(e).
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