An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA05-812


Filed: 7 February 2006


v .                             Wake County
                                No. 04 CVD 3195

    Appeal by defendants from order entered 14 March 2005 by Judge Paul G. Gessner in Wake County Superior Court. Heard in the Court of Appeals 11 January 2006.

    Jordan Price Wall Gray Jones & Carlton, by Hope Derby Carmichael and Brian S. Edlin, for plaintiffs-appellees.

    Parker, Poe, Adams & Bernstein, L.L.P., by Jack L. Cozort, R. Bruce Thompson, II, Charles E. Raynal, IV, and Brenton W. McConkey, for defendants-appellants.

    CALABRIA, Judge.

    Don S. Carnell and Debra A. Burch (“defendants”) appeal from an order granting Pendleton Lake Homeowners Association, Inc. (“the Association”), L. Duane Long (“Long”), and Gregory A. Scheu (“Scheu”) (collectively known as “plaintiffs”) summary judgment. We affirm.
    Defendants own Lot number 9 (“lot 9”), 620 Pendleton Lake Road, Raleigh, North Carolina, in the Pendleton Lake Subdivision (“the Subdivision”). In the Subdivision, plaintiff Long ownsproperty at 628 Pendleton Lake Road and plaintiff Scheu owns property at 621 Pendleton Lake Road. All lots within the Subdivision are subject to all provisions in the Declaration of Protective Covenants (“the Covenants”).
    Three sections of the Covenants are pertinent to this appeal. Paragraph 1 permits construction of “a private garage for not more than four cars.” Paragraph 4 requires, prior to construction of such a structure, written submission to the Pendleton Lake Architectural Committee (“the Committee”) of “the plans and specifications showing the nature...and location of [the proposed structure]” and subsequent approval by the Committee of the proposed structure “as to harmony of external design and location in relation to the general tone of development of the Subdivision.” Paragraph 16 reserves “unto the Committee the right to approve or disapprove any proposed dwelling or other be erected upon the premises.”
    On 11 August 2003, defendants applied to the Committee for approval on lot 9 of a detached garage, 20' by 30' in size, to house two historic cars. On 25 August 2003, the Committee reviewed and rejected defendants' application citing the proposed structure's inconsistency with the general scheme and plan of development for the subdivision. On 5 September 2003, defendants appealed the Committee's decision to the President of the Homeowner's Association (“the Association”) and nine days later, the Association's Board of Directors (“the Board”) affirmed theCommittee's denial. In a letter dated 14 September 2003, the Board informed defendants their application was rejected because

        “[t]he Committee ruled that the size and location of the building is not in keeping with the Covenants which state in paragraph 4 '...harmony of...location in relation to the general tone of development of the Subdivision.' The proposed detached garage would in fact be located between [houses on 620 and 628 Pendleton Lake Road] and be approximately 10 feet from the property line. This is not in keeping with the overall harmony and design of Pendleton Lake.”

    On 4 March 2004, defendants began construction of their detached garage absent approval by the Committee and in direct contravention of the Committee's prior 25 August 2003 rejection. On 9 March 2004, plaintiffs filed a verified complaint, motion for temporary restraining order (“t.r.o.”), and preliminary injunction in Wake County District Court. That same day, the trial court issued the t.r.o. stopping defendants from any further construction of their detached garage. On 6 April 2004, the trial court granted plaintiffs' preliminary injunction enjoining defendants from any further construction on their detached garage.
    On 13 December 2004, plaintiffs moved for summary judgment on the grounds there was no genuine issue as to any material fact. On 8 March 2005, the trial court granted plaintiffs' motion and defendants appealed on 7 April 2005.
    Defendants argue the trial court erred in granting plaintiffs summary judgment because the record contains the following disputed issues of fact: whether the Board and the Committee ignored theprotective covenants; whether the Board and the Committee acted unreasonably; whether the Board and the Committee acted in good faith. We disagree.
    Summary judgment is appropriate and “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact... .” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2005). “A party moving for summary judgment under Rule 56 has the burden of clearly establishing the lack of any triable issue of fact by the record properly before the court. His papers are carefully scrutinized; and those of the opposing party are on the whole indulgently regarded.” Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975) (citation and internal quotation marks omitted). Moreover, “[t]he movant is held by most courts to a strict standard, and all inferences of fact from the proofs proffered at the hearing must be drawn against the movant and in favor of the party opposing the motion.” Id. (citation and internal quotation marks omitted). Nevertheless, the movant can carry this burden “by proving that an essential element of the opposing party's claim is nonexistent or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim.” Zimmerman v. Hogg & Allen, 286 N.C. 24, 29, 209 S.E.2d 795, 798 (1974).
    When interpreting protective covenants “requiring submission of plans and prior consent to construction,” ChristopherProperties, Inc. v. Postell, 106 N.C. App. 180, 185, 415 S.E.2d 786, 789 (1992), this Court has affirmatively stated “such clauses, even if vesting the approving authority with broad discretionary power, are valid and enforceable so long as the authority to consent is exercised reasonably and in good faith. Id. (citations omitted) (emphasis added). Importantly though,
        [t]he exercise of the authority to approve the house plans cannot be arbitrary. There must be some standards. Where these standards are not within the restrictive covenant itself, they must be in other covenants stated or designated, or they must be otherwise clearly established in connection with some general plan or scheme of development.

Boiling Spring Lakes v. Coastal Services Corp., 27 N.C. App. 191, 195, 218 S.E.2d 476, 478 (1975) (citation omitted) (emphasis added). Consequently, “most jurisdictions that have dealt with this issue have found that these covenants are enforceable as long as the determining body makes the decision reasonably and in good faith.” Raintree Homeowners Assoc. v. Bleimann, 342 N.C. 159, 163, 463 S.E.2d 72, 74 (1995).
    In Raintree, supra, our Supreme Court determined an architectural review committee acted reasonably and in good faith in denying a homeowners' application for vinyl siding based upon the following evidence:
        [T]he uncontradicted evidence shows that the ARC on three occasions considered defendants' application for vinyl siding despite the fact that it had previously found the material unacceptable, that the members of the ARC visited defendants' house and looked at the vinyl siding before making a decision, that the ARC conducted a study and found that vinyl siding was not appropriate for North Raintree,and that previous applications had been rejected for that reason. The evidence also showed that the ARC consistently found that vinyl siding was not appropriate for this section of Raintree because the general theme of the community was a natural, contemporary style, whereas vinyl siding conveyed a colonial or traditional style.

Raintree, 342 N.C. at 165, 463 S.E.2d at 75. Thus, in Raintree, our Supreme Court determined an architectural committee acted reasonably and in good faith, in part, when it considered an application more than once, personally viewed the site before rendering a decision, and used covenant guidelines as part of the decision-making process.
    In the instant case, the record reveals plaintiffs did all of the following with respect to defendants' detached garage proposal. First, the Board and the Committee twice weighed defendants' proposal and twice rejected the application. Second, the Board and the Committee came to defendants' lot to personally inspect the site and the proposal. Third, the Board and the Committee consulted with other lot owners in the Subdivision regarding defendants' detached garage. Fourth, the Board and the Committee delineated the express reasons why the proposal failed to meet the guidelines as outlined in the Covenants. Fifth, the Board and the Committee suggested alternative sites for defendants' detached garage. The above actions of the Board and the Committee are substantially similar to the reasons stated in Raintree found to be both reasonable and in good faith. Moreover, both the Board and the Committee determined the defendants' proposal failed to meet the Covenant's guidelines as to the “harmony of external design andlocation in relation to the general tone of development of Pendleton Lake Subdivision.” Consequently, plaintiffs did not ignore the Subdivision's covenants when they acted both reasonably and in good faith in denying defendants' proposal to build a detached garage. The trial court correctly granted summary judgment to plaintiffs.
    Judges BRYANT and SMITH concur.
    Report per Rule 30(e).

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