Belmont Ass'n v. Farwig ( 2022 )

IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-64
No. 214A21
Filed 17 June 2022
BELMONT ASSOCIATION, INC.
v.
THOMAS FARWIG and wife, RANA FARWIG and NANCY MAINARD
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, 277 N.C. App. 387 (2021), affirming an order entered on 3
January 2020 by Judge Graham Shirley in Superior Court, Wake County. Heard in
the Supreme Court on 23 March 2022.
Jordan Price Wall Gray Jones & Carlton, PLLC, by Brian S. Edlin, Hope Derby
Carmichael, and Mollie L. Cozart, for plaintiff-appellee.
Thurman, Wilson, Boutwell & Galvin, P.A., by James P. Galvin, for defendant-
appellants.
Joshua H. Stein, Attorney General, by Ryan Y. Park, Solicitor General, and
Nicholas S. Brod, Assistant Solicitor General, for the State of North Carolina,
amicus curiae.
Southern Environmental Law Center, by Nicholas Jimenez and Lauren J.
Bowen, for North Carolina Sustainable Energy Association, amicus curiae.
J. Ronald Jones Jr. and Bettie Kelley Sousa for Solar Industry Businesses,
amicus curiae.
Law Firm Carolinas, by Harmony W. Taylor, for Community Associations
Institute – North Carolina Chapter, Inc., amicus curiae.
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Opinion of the Court
HUDSON, Justice.
¶1 Thomas and Rana Farwig and Nancy Mainard (together, the Farwigs or
defendants) appeal as of right based upon a dissent from a decision of the Court of
Appeals, in which the majority affirmed the trial court’s grant of summary judgment
to plaintiff Belmont Association, Inc. (Belmont). The Court of Appeals below affirmed
the grant of summary judgment to Belmont. On appeal, defendants argue the Court
of Appeals erred in its interpretation of N.C.G.S. § 22B-20. We agree, reverse the
decision of the Court of Appeals, and remand for further remand to the trial court for
entry of summary judgment for defendants on the declaratory judgment claim and
for further proceedings not inconsistent with this opinion.
I. Factual and Procedural Background
¶2 On 9 December 2011, developers recorded the Declaration of Protective
Covenants for Belmont at Deed Book 14571, page 2528 in the Wake County Public
Registry. Belmont Association was organized to administer and enforce the covenants
and restrictions under the Declaration, and all covenants and restrictions contained
in the Declaration run with the land of all residential units in the Belmont
subdivision.
¶3 The Declaration, among other things, contained various restrictions on the use
of property within Belmont. Although many specific uses of property were restricted
by Article IX of the Declaration, including “animals,” “home businesses,” restrictions
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on “leases,” “temporary structures,” and “wetlands, conservation areas, and buffers,”
the use of residential solar panels was not specifically mentioned anywhere in the
Declaration.
¶4 Nevertheless, Article XI of the Declaration establishes an “Architectural
Review Committee” (ARC) and describes its functions. Section 3(a) of Article XI
provides:
The [ARC] shall have the right to refuse to approve any
Plans for improvements which are not, in its sole
discretion, suitable or desirable for the Properties,
including for any of the following: (i) lack of harmony of
external design with surrounding structures and
environment; and (ii) aesthetic reasons. Each Owner
acknowledges that determinations as to such matters may
be subjective and opinions may vary as to the desirability
and/or attractiveness of particular improvements.
¶5 On or about 17 December 2012, defendants purchased Lot 42, located at 4123
Davis Meadow Street, Raleigh, North Carolina, in the Belmont subdivision. Lot 42 is
one of the properties subject to the Declaration.
¶6 On or about 5 February 2018, defendants installed solar panels on the roof of
their house on Lot 42 at a cost of over $32,000. Five months later, the ARC sent
defendants a notice of architectural violation and asked defendants to submit an
architectural request form to the ARC. Defendants submitted the architectural
request form on 20 July 2018 seeking approval of the solar panels along with a
petition to allow solar panels on the front portion of the roof of homes in Belmont that
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was signed by twenty-two residents. The documentation noted that solar panels must
face southward to be effective.
¶7 On 5 September 2018, Belmont denied defendants’ application. While
acknowledging the Declaration did not specifically address solar panels, Belmont
cited “aesthetic” problems as the reason for its denial. It further stated that “the
proposed location of the panels were not consistent with the plan and scheme of
development in Belmont.” Belmont suggested defendants could move the solar panels
to a part of the house not visible from the road, but defendants responded that moving
the solar panels would significantly reduce the energy generated by the panels and a
shade report showed the location of the panels received the most light.
¶8 On 4 October 2018, defendants appealed the ARC’s denial of their architectural
request form. On 2 November 2018, Belmont denied defendants’ appeal. Belmont
demanded defendants remove the solar panels by 7 December 2018. The solar panels
were not removed by that date and Belmont subsequently sent a notice of hearing.
Following a 30 January 2019 hearing, at which Thomas Farwig presented a defense
of defendants’ actions, Belmont voted to impose a fine of $50 per day after 1 March
2019 if the solar panels were not removed. Belmont began imposing fines on
defendants on or about 8 March 2019, and defendants began paying the fines to avoid
foreclosure.
¶9 On 1 April 2019, Belmont filed a Claim of Lien on Lot 42, alleging a debt of
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$50.00. The next day, Belmont filed its complaint seeking injunctive relief and the
collection of fines imposed. On 7 June 2019, defendants filed an answer, motion to
dismiss, and counterclaims against Belmont for declaratory judgment, breach of
contract, breach of the implied covenant of good faith and fair dealing, slander of title,
and violation of N.C.G.S. § 75-1.1 et seq. Belmont filed a motion to dismiss, motion for
judgment on the pleadings, and reply to defendants’ counterclaims. Belmont filed a
motion for summary judgment on 5 November 2019 following discovery.
¶ 10 After a hearing on 11 December 2019, the Superior Court, Wake County, Judge
Graham Shirley presiding, granted in part Belmont’s motion for summary judgment
as to Belmont’s first claim for injunctive relief and defendants’ first counterclaim for
declaratory judgment. The trial court issued its order on 3 January 2020, in which it
ruled that N.C.G.S. § 22B-20(d) applied to the action; that “this action involves a deed
restriction, covenant, or similar binding agreement that runs with the land that
would prohibit the location of solar collectors as described in N.C.G.S. § 22B-20(b)
that are visible by a person on the ground on a roof surface that slopes downward
toward the same areas open to common or public access that the façade of the
structure faces”; and that N.C.G.S. § 22B-20(c) is not applicable “because subsection
(d) is applicable.” Defendants appealed the trial court’s order granting Belmont’s
motion for summary judgment to the Court of Appeals.
¶ 11 On appeal to the Court of Appeals, defendants argued the trial court erred in
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concluding that N.C.G.S. § 22B-20(d) applied because the Declaration did not
expressly cover solar panels and, furthermore, that it erred in concluding the
Declaration as applied was not void under N.C.G.S. § 22B-20(b).
¶ 12 In a divided opinion authored by Judge Gore, the Court of Appeals affirmed
the trial court’s order granting in part summary judgment to Belmont. The majority
held that “[s]ubsection (d) of N.C.[G.S.] § 22B-20 is applicable in this action because
the Declaration has the effect of prohibiting the installation of solar panels ‘[o]n a roof
surface that slopes downward toward the same areas open to common or public access
that the façade of the structure faces.’ ” Belmont Ass’n v. Farwig, 277 N.C. App. 387,
2021-NCCOA-207, ¶ 21 (third alteration in original). Judge Jackson dissented from
the majority opinion, arguing that the majority’s holding “ignores precisely what the
statutory ban forbids” by misconstruing a restriction that effectively prohibits the
installation of solar panels even if it does not do so expressly. Id. ¶ 22 (Jackson, J.,
dissenting).
¶ 13 Defendants timely appealed to this Court under N.C.G.S. § 7A-30 on the basis
of the dissenting opinion.
II. Analysis
¶ 14 On appeal, defendants argue the Court of Appeals erred in its interpretation
of N.C.G.S. § 22B-20 in two ways. First, they argue the Court of Appeals erred in its
application of N.C.G.S. § 22B-20(b) by failing to invalidate restrictions that effectively
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prohibit the installation of solar panels. Second, they argue the Court of Appeals
erred in its application of N.C.G.S. § 22B-20(d) by failing to require an existing “deed
restriction, covenant, or similar binding agreement” that affirmatively seeks to
regulate solar panels in order for plaintiff to avail itself of the exception therein. We
agree and reverse the decision of the Court of Appeals affirming the trial court’s order
granting summary judgment to Belmont.
¶ 15 “Our standard of review of an appeal from summary judgment is de novo; such
judgment is appropriate only when the record shows that there is no genuine issue
as to any material fact and that any party is entitled to a judgment as a matter of
law.” In re Will of Jones, 362 N.C. 569, 573 (2008) (cleaned up); see N.C.G.S. § 1A-1,
Rule 56(c) (2021). “When considering a motion for summary judgment, the trial judge
must view the presented evidence in a light most favorable to the nonmoving party.”
Dalton v. Camp, 353 N.C. 647, 651 (2001). “Under a de novo review, the court
considers the matter anew and freely substitutes its own judgment for that of the
lower tribunal.” Craig v. New Hanover Cnty. Bd. of Educ., 363 N.C. 334, 337 (2009)
(cleaned up).
¶ 16 This case presents a question of statutory interpretation of first impression.
“Statutory interpretation properly begins with an examination of the plain words of
the statute.” Correll v. Div. of Soc. Servs., 332 N.C. 141, 144 (1992). “If the statutory
language is clear and unambiguous, the court eschews statutory construction in favor
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of giving the words their plain and definite meaning.” State v. Beck, 359 N.C. 611,
614 (2005). “However, where the statute is ambiguous or unclear as to its meaning,
the courts must interpret the statute to give effect to the legislative intent. Canons of
statutory interpretation are only employed if the language of the statute is ambiguous
or lacks precision, or is fairly susceptible of two or more meanings.” JVC Enters., LLC
v. City of Concord, 376 N.C. 782, 2021-NCSC-14, ¶ 10 (cleaned up).
¶ 17 Section 22B-20 provides as follows:
(b) Except as provided in subsection (d) of this
section, any deed restriction, covenant, or similar binding
agreement that runs with the land that would prohibit, or
have the effect of prohibiting, the installation of a solar
collector that gathers solar radiation as a substitute for
traditional energy for water heating, active space heating
and cooling, passive heating, or generating electricity for a
residential property on land subject to the deed restriction,
covenant, or agreement is void and unenforceable. As used
in this section, the term “residential property” means
property where the predominant use is for residential
purposes. The term “residential property” does not include
any condominium created under Chapter 47A or 47C of the
General Statutes located in a multi-story building
containing units having horizontal boundaries described in
the declaration. As used in this section, the term
“declaration” has the same meaning as in G.S. 47A-3 or
G.S. 47-1-103, depending on the chapter of the General
Statutes under which the condominium was created.
(c) This section does not prohibit a deed
restriction, covenant, or similar binding agreement that
runs with the land that would regulate the location or
screening of solar collectors as described in subsection (b)
of this section, provided the deed restriction, covenant, or
similar binding agreement does not have the effect of
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preventing the reasonable use of a solar collector for a
residential property. . . .
(d) This section does not prohibit a deed
restriction, covenant, or similar binding agreement that
runs with the land that would prohibit the location of solar
collectors as described in subsection (b) of this section that
are visible by a person on the ground:
(1) On the façade of a structure that faces areas open
to common or public access;
(2) On a roof surface that slopes downward toward the
same areas open to common or public access that
the façade of the structure faces; or
(3) Within the area set off by a line running across the
façade of the structure extending to the property
boundaries on either side of the façade, and those
areas of common or public access faced by the
structure.
N.C.G.S. § 22B-20 (2021).
¶ 18 First, defendants argue the Court of Appeals erred in its interpretation of
N.C.G.S. § 22B-20(b). By its plain terms, N.C.G.S. § 22B-20(b) applies not just to “any
deed restriction, covenant, or similar binding agreement that runs with the land that
would prohibit . . . the installation of a solar collector” but also to “any deed
restriction, covenant, or similar binding agreement that runs with the land that
would . . . have the effect of prohibiting[ ] the installation of a solar collector.” N.C.G.S.
§ 22B-20(b) (emphasis added). Based on the plain and unambiguous meaning of
subsection (b), the ARC’s restriction of the use of solar panels under provisions of
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Article XI of the Declaration is void unless there is some exception, because even
though the Declaration does not expressly prohibit the installation solar panels, the
provisions of Article XI of the Declaration which treat the installation of solar panels
as an “improvement” subject to aesthetic regulation by the ARC effectively prohibit
their installation. Accordingly, under N.C.G.S. § 22B-20(b), the restriction is
prohibited unless there is some exception.
¶ 19 Subsection (c) provides one exception for a “deed restriction, covenant, or
similar binding agreement [that] does not have the effect of preventing the reasonable
use of a solar collector for a residential property.” N.C.G.S. § 22B-20(c). Subsection
(d) provides another exception, which permits a “deed restriction, covenant, or similar
binding agreement that runs with the land that would prohibit the location of solar
collectors as described in subsection (b) of this section that are visible by a person on
the ground” subject to certain restrictions. N.C.G.S. § 22B-20(d) (emphasis added).
By its plain terms, subsection (d) applies only to such restrictions “that would
prohibit” solar panels as described in subsection (b).
¶ 20 Here, the restriction at issue prevents the reasonable use of solar panels, and
accordingly, the exception contained in subsection (c) would not apply. Subsection (d)
also does not apply here because while it provides an exception to subsection (b)
allowing restrictions to prevent the installation of solar panels in certain locations,
that subsection applies only to restrictions “that would prohibit” the installation of
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solar panels. The language describing restrictions that “have the effect” of prohibiting
such installation in subsections (b) and (c) is not contained in subsection (d).
Nevertheless, the Court of Appeals treats this plain language as ambiguous and
proceeds to read subsection (d) to apply also to restrictions that have such an effect
even though this language is not contained therein. Belmont Ass’n, ¶¶ 15–20. The
Court of Appeals reaches this conclusion by looking not only to the text of the statute
but also to the title of the legislation and the legislative history. Id. ¶¶ 16–17. In so
doing, the Court of Appeals contravenes our rules of statutory interpretation by
applying canons of construction where the plain meaning of the statute is clear. It is
a bedrock rule of statutory interpretation that “[i]f the statutory language is clear
and unambiguous, the court eschews statutory construction in favor of giving the
words their plain and definite meaning.” Beck, 359 N.C. at 614. Accordingly, the
Court of Appeals erred in declining to give the words of subsection (d) their plain and
definite meaning and by reading the subsection to apply also to restrictions that “have
the effect” of prohibiting the installation of solar panels based on sources outside the
text. The Court of Appeals necessarily also erred in concluding that the restriction at
issue here satisfies subsection (d), because as previously noted, the Declaration does
not expressly prohibit the installation of solar panels in any manner.
III. Conclusion
¶ 21 We conclude the Court of Appeals erred in affirming the order granting
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summary judgment in part to Belmont on the basis that the restrictions at issue,
which do not expressly prohibit the installation of solar panels but only have the effect
of doing so as applied by the ARC, fall under the safe harbor exception contained in
N.C.G.S. § 22B-20(d). We hold that the restriction at issue here does have the effect
of prohibiting the installation of solar panels and the reasonable use of solar panels
and, accordingly, the exception contained in subsection (c) of the statute does not
apply. Since neither statutory exception applies, we hold the restriction violates
N.C.G.S. § 22B-(20)(b). Accordingly, defendants are entitled to summary judgment
on the declaratory judgment claim. We reverse the decision of the Court of Appeals
with instructions to remand to the trial court for further proceedings not inconsistent
with this decision.
REVERSED AND REMANDED.
Justice MORGAN dissenting.
¶ 22 While I agree with the recognition and recitation by my learned colleagues in
the majority of the pertinent provisions that govern the principles of statutory
construction which are germane to this case, I disagree with the majority’s
application of these established guidelines of interpretation to the facts and
circumstances existent here. The manner in which these interpretative directives
were employed in the present case has led, in my view, to an erroneous outcome. I
would affirm the decision of the Court of Appeals majority that the trial court properly
granted summary judgment in favor of plaintiff Belmont Association, Inc.
¶ 23 As cited by the Court’s majority, the salient clause of the Belmont residential
subdivision’s Declaration of Protective Covenants is the authorization for the
subdivision’s Architectural Review Committee to
have the right to refuse to approve any Plans for
improvements which are not, in its sole discretion, suitable
or desirable for the Properties, including for any of the
following: (i) lack of harmony of external design with
surrounding structures and environment; and (ii) aesthetic
reasons. Each Owner acknowledges that determinations as
to such matters may be subjective and opinions may vary
as to the desirability and/or attractiveness of particular
improvements.
This Court has been beckoned to consider the Committee’s authorization in light of
N.C.G.S. § 22B-20 and its governance of protective covenants as they purport to
regulate the installation of solar panels.
¶ 24 In interpreting a statute, the Court must first ascertain the legislative intent
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in enacting the legislation. The first consideration in determining legislative intent
is the words chosen by the Legislature. When the words are clear and unambiguous,
they are to be given their plain and ordinary meanings. O & M Indus. v. Smith Eng’g
Co., 360 N.C. 263, 267–68 (2006). “The goal of statutory interpretation is to determine
the meaning that the [L]egislature intended upon the statute’s enactment.” State v.
Rankin, 371 N.C. 885, 889 (2018).
¶ 25 The intent of the legislative body which enacted N.C.G.S. § 22B-20 is expressly
stated in the first passage of the statute, and is contained in the law’s subsection (a):
The intent of the General Assembly is to protect the public
health, safety, and welfare by encouraging the
development and use of solar resources and by prohibiting
deed restrictions, covenants, and other similar agreements
that could have the ultimate effect of driving the costs of
owning and maintaining a residence beyond the financial
means of most owners.
N.C.G.S. § 22B-20(a) (2021).
¶ 26 In determining legislative intent, the words and phrases of a statute must be
interpreted contextually, in a manner which harmonizes with the other provisions of
the statute and which gives effect to the reason and purpose of the statute. Burgess
v. Your House of Raleigh, Inc., 326 N.C. 205, 215 (1990). “All parts of the same statute
dealing with the same subject are to be construed together as a whole, and every part
thereof must be given effect if this can be done by any fair and reasonable
interpretation.” State v. Tew, 326 N.C. 732, 739 (1990).
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¶ 27 Guided by these admonitions of proper statutory construction regarding the
requirement that all of the provisions of N.C.G.S. § 22B-20 are to be reconciled with
one another in order to maintain the sanctity of the statute while guided by the
Legislature’s clear intent embodied in the law’s subsection (a), the next subsection of
the statute—N.C.G.S. § 22B-20(b)—immediately begins with a deferential reference
to N.C.G.S. § 22B-20(d). Subsection 22B-20(b) states the following, in pertinent part:
Except as provided in subsection (d) of this section, any deed
restriction, covenant, or similar binding agreement that
runs with the land that would prohibit, or have the effect
of prohibiting, the installation of a solar collector that
gathers solar radiation as a substitute for traditional
energy for water heating, active space heating and cooling,
passive heating, or generating electricity for a residential
property on land subject to the deed restriction, covenant,
or agreement is void and unenforceable.
N.C.G.S. § 22B-20(b) (emphasis added).
¶ 28 In ascribing the plain and ordinary meaning to the phrase “[e]xcept as provided
in subsection (d) of this section,” as these words are individually selected and
collectively joined by the General Assembly in this introductory passage of N.C.G.S.
§ 22B-20(b), this prelude to the substance of subsection (b) explicitly notes that the
content of N.C.G.S. § 22B-20(b) yields to the operation of N.C.G.S. § 22B-20(d) to the
extent that N.C.G.S. § 22B-20(b) contains conflicting or differing content in an area
also addressed by N.C.G.S. § 22B-20(d). Such conflict and difference would then be
resolved by the subservience of subsection (b) to subsection (d) in the given area, and
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subsection (d) would control. Otherwise, if there is no subject area of conflict or
difference between N.C.G.S. § 22B-20(b) and N.C.G.S. § 22B-20(d), then the
provisions of N.C.G.S. § 22B-20(b) stand alone and are operative.
¶ 29 Before determining if, and to what extent, there is any incompatibility between
N.C.G.S. § 22B-20(b) and N.C.G.S. § 22B-20(d), the intervening subsection of (c) must
be consulted after subsection (b) and before subsection (d), since the Legislature has
constructed the statutory enactment in the manner that the Legislature deemed
appropriate. Reading the five subsections of N.C.G.S. § 22B-201 in sequential order
comports with the aforementioned dictate of Burgess, that the words and phrases of
a statute must be interpreted contextually. In pertinent part, N.C.G.S. § 22B-20(c)
reads:
This section does not prohibit a deed restriction, covenant,
or similar binding agreement that runs with the land that
would regulate the location or screening of solar collections
as described in subsection (b) of this section, provided the
deed restriction, covenant, or similar binding agreement
does not have the effect of preventing the reasonable use of
a solar collector for a residential property. If an owners’
association is responsible for exterior maintenance of a
structure containing individual residences, a deed
restriction, covenant, or similar binding agreement that
runs with the land may provide that (i) the title owner of
the residence shall be responsible for all damages caused
by the installation, existence, or removal of solar collectors;
(ii) the title owner of the residence shall hold harmless and
indemnify the owners’ association for any damages caused
Subsection 22B-20(e) addresses the “award [of] costs and reasonable attorneys’ fees
1
to the prevailing party” and is irrelevant to the dissent’s analysis.
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by the installation, existence, or removal of solar collectors;
and (iii) the owners’ association shall not be responsible for
maintenance, repair, replacement, or removal of solar
collectors unless expressly agreed in a written agreement
that is recorded in the office of the register of deeds in the
county or counties in which the property is situated.
N.C.G.S. § 22B-20(c). Subsection 22B-20(c), while expressly stating that it does not
prohibit covenants such as those mentioned in Belmont’s Declaration which plaintiff
could choose to apply in order to “regulate the location or screening of solar collectors
as described in subsection (b),” nonetheless could ban the operation of the covenant if
it would “have the effect of preventing the reasonable use of a solar collector for a
residential property.” Id. On its face, the Declaration’s covenant language does not
operate to this extent, and the majority recognizes in its written opinion that this
exception contained in N.C.G.S. § 22B-20(c) does not apply in the instant case. Hence,
N.C.G.S. § 22B-20(c) does not impact this case with respect to defendants’ installation
of solar panels.
¶ 30 Subsection 22B-20(d), which preempts the operation of N.C.G.S. § 22B-20(b) to
the extent that subsection (b) and subsection (d) are incompatible with one another
due to conflicting or differing content in light of the plain and ordinary meanings of
the introductory words of N.C.G.S. § 22B-20(b), “Except as provided in subsection (d)
of this section,” which render N.C.G.S. § 22B-20(b) subservient to N.C.G.S. § 22B-
20(d) as described, is composed entirely of the following provisions:
This section does not prohibit a deed restriction, covenant,
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or similar binding agreement that runs with the land that
would prohibit the location of solar collectors as described
in subsection (b) of this section that are visible by a person
on the ground:
(1) On the façade of a structure that faces areas open
to common or public access;
(2) On a roof surface that slopes downward toward
the same areas open to common or public access
that the façade of the structure faces; or
(3) Within the area set off by a line running across
the façade of the structure extending to the
property boundaries on either side of the façade,
and those areas of common or public access faced
by the structure.
N.C.G.S. § 22B-20(d). Although under N.C.G.S. § 22B-20(b), a covenant such as the
one at issue in the current case which plaintiff could deem to apply to the installation
of solar panels in plaintiff’s potential interpretation of the Declaration would be “void
and unenforceable” because subsection (b) does not allow any such covenant to
operate “that would prohibit, or have the effect of prohibiting, the installation of”
solar panels as performed by defendants in the present case. Subsection 22B-20(d),
however, “does not prohibit” the operation of a covenant “that would prohibit the
location of solar collectors as described in subsection (b) of this section that are visible
by a person on the ground: (1) On the façade of a structure that faces areas open to
common or public access; [or] (2) On a roof surface that slopes downward toward the
same areas open to common or public access that the façade of the structure faces.”
N.C.G.S. § 22B-20(d) (emphasis added).
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¶ 31 In giving the clear and unambiguous words of N.C.G.S. § 22B-20 their plain
and ordinary meanings as this Court has directed in O & M Industries, I conclude
that the principles of statutory construction support plaintiff’s determination to deny
defendants’ application to install solar panels on their residential home, in plaintiff’s
words, “because the installation can be seen from the road in front of the home, and
is not able to be shielded,” with said justification being grounded in two places in
N.C.G.S. § 22B-20 where the guidelines governing statutory interpretation are
readily exercised: (1) the introductory clause of N.C.G.S. § 22B-20(b)—“Except as
provided in subsection (d) of this section”—which establishes in clear and
unambiguous words that subsection (b) yields to the operation of N.C.G.S. § 22B-20(d)
to the extent that N.C.G.S. § 22B-20(b) contains conflicting or differing content in an
area also addressed by N.C.G.S. § 22B-20(d), wherein subsection (d) would then
supersede subsection (b) and thus subsection (d) would then control the outcome of
the issue; and (2) the sole sentence of N.C.G.S. § 22B-20(d) which begins, “This section
does not prohibit a deed restriction, covenant, or similar binding agreement that runs
with the land that would prohibit the location of solar collectors as described in
subsection (b) of this section that are visible by a person on the ground,” and which
establishes in clear and unambiguous words that restrictions on the placement of
solar panels which are generally disallowed by subsection (b) are authorized by
subsection (d) to be allowed in circumstances where, as in the present case, the
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placement of the solar panels causes them to be visible from ground level from the
façade of a structure that faces areas open to common or public access, or on a roof
surface that slopes downward toward the same areas which are open to common or
public access that the façade of the structure faces. Here, plaintiff denied defendants’
application for the installation of solar panels because plaintiff determined that “the
installation can be seen from the road in front of the home, and is not able to be
shielded.” There is evidence in the record that defendants placed the solar panels at
issue on the front area of their home’s roof which sloped southward and was visible
from the street in front of the home. As I see it, N.C.G.S. § 22B-20(d), which
supersedes N.C.G.S. § 22B-20(b) in this aspect of the statute, therefore lawfully
empowered plaintiff to deny defendants’ application to install the solar panels.
¶ 32 From my perspective, the application of the well-settled principles of statutory
interpretation to N.C.G.S. § 22B-20 readily shows that plaintiff had the authority to
deny defendants’ application. This implementation of standard statutory
construction would not thwart the intent of the General Assembly which undergirds
the statute and which was expressed in N.C.G.S. § 22B-20(a), because the interaction
between and among the various subsections of the law operates to eradicate any
pervasive or arbitrary prohibitions of the development and use of solar resources by
limiting the availability of deed restrictions, covenants, and other similar agreements
that could have the ultimate effect of driving the costs of owning and maintaining a
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residence beyond the financial means of most owners.
¶ 33 Summary judgment is proper “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 and that any party is entitled to a
judgment as a matter of law.” N.C.G.S. § 1A-1, Rule 56(c) (2021). “A ruling on a motion
for summary judgment must consider the evidence in the light most favorable to the
non-movant, drawing all inferences in the non-movant’s favor. The standard of review
of an appeal from summary judgment is de novo.” Morrell v. Hardin Creek, Inc., 371
N.C. 672, 680 (2018) (citation omitted).
¶ 34 While I agree with the majority that summary judgment is the proper
disposition of this case, I would render it in favor of plaintiff instead of defendants.
Therefore, I would affirm the determination of the Court of Appeals in this case that
the trial court correctly granted summary judgment for plaintiff.
Justice BERGER dissenting.
¶ 35 There is a predictable and certain outcome for this case provided the rules of
statutory construction, as enunciated by the majority, are followed. Because a
decision of the Architectural Review Committee is not a “deed restriction, covenant,
or similar binding agreement” under N.C.G.S. § 22B-20, I respectfully dissent.
¶ 36 The facts and law of this case are not complicated. Defendants purchased a lot
in a subdivision which was subject to the Declaration of Protective Covenants for
Belmont properly recorded with the Wake County Register of Deeds. The Declaration
established an Architectural Review Committee (ARC). Pursuant to the Declaration,
homeowners were required to request and obtain approval for improvements to their
properties from the ARC prior to making any such improvements.
¶ 37 A little over five years after purchasing the property, defendants installed solar
panels on the roof of their house without submitting a request to, or obtaining
approval from, the ARC. The ARC responded by sending defendants a notice of
violation. Ultimately, the ARC rejected defendants’ untimely request but gave
defendants the option to relocate the solar panels to a part of the house not visible
from the road. Defendants refused and this action followed.
¶ 38 Defendants argue plaintiff’s denial of their request to install solar panels
violated N.C.G.S. § 22B-20, entitled “Deed restrictions and other agreements
prohibiting solar collectors.” Pursuant to that section,
(b) Except as provided in subsection (d) of this
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section, any deed restriction, covenant, or similar binding
agreement that runs with the land that would prohibit, or
have the effect of prohibiting, the installation of a solar
collector that gathers solar radiation as a substitute for
traditional energy for water heating, active space heating
and cooling, passive heating, or generating electricity for a
residential property on land subject to the deed restriction,
covenant, or agreement is void and unenforceable. . . .
(c) This section does not prohibit a deed restriction,
covenant, or similar binding agreement that runs with the
land that would regulate the location or screening of solar
collectors as described in subsection (b) of this section,
provided the deed restriction, covenant, or similar binding
agreement does not have the effect of preventing the
reasonable use of a solar collector for a residential
property. . . .
(d) This section does not prohibit a deed restriction,
covenant, or similar binding agreement that runs with the
land that would prohibit the location of solar collectors as
described in subsection (b) of this section that are visible
by a person on the ground:
(1) On the façade of a structure that faces areas
open to common or public access;
(2) On a roof surface that slopes downward toward
the same areas open to common or public access
that the façade of the structure faces; or
(3) Within the area set off by a line running across
the façade of the structure extending to the
property boundaries on either side of the
façade, and those areas of common or public
access faced by the structure.
N.C.G.S. § 22B-20(b)–(d) (2021).
¶ 39 By its plain language, the statute prohibits “any deed restriction, covenant, or
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similar binding agreement that runs with the land that would prohibit, or have the
effect of prohibiting, the installation of a solar collector.” N.C.G.S. § 22B-20(b). It is
uncontested that defendants’ lot was subject to the Declaration described above. The
Declaration is the only document in the record that would contain any such “deed
restriction, covenant, or similar binding agreement.” As the majority notes, “the use
of residential solar panels was not specifically mentioned anywhere in the
Declaration.” The majority further acknowledges that “the Declaration does not
expressly prohibit the installation of solar panels in any manner.” Thus, there is no
restriction set forth in the Declaration that prohibits or would have the effect of
prohibiting the installation of solar panels that is at play in this scenario. Rather, it
was the decision of the ARC that prohibited the installation of the solar panels by
defendants.
¶ 40 A deed restriction, or “restrictive covenant,” is defined as “[a] private
agreement . . . in a deed . . . that restricts the use or occupancy of real property, esp.
by specifying lot sizes, building lines, architectural styles, and the uses to which the
property may be put.” Restrictive Covenant, Black’s Law Dictionary (11th ed. 2019).
Further, the term “covenant” is “[a] formal agreement or promise . . . in a contract or
deed, to do or not do a particular act; a compact or stipulation.” Covenant, Black’s
Law Dictionary (11th ed. 2019). And a “covenant running with the land” is “[a]
covenant intimately and inherently involved with the land and therefore binding
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subsequent owners and successor grantees indefinitely.” Covenant Running with the
Land, Black’s Law Dictionary (11th ed. 2019).
¶ 41 A decision by the ARC is not a deed restriction, as it is not an agreement found
in defendants’ deed; is not a covenant, as it is not an agreement or promise found in
a contract or deed; and is not an agreement that runs with the land, as it does not
bind subsequent owners and successor grantees indefinitely. Indeed, counsel for
defendants conceded at oral argument that a decision by the ARC does not qualify as
a deed restriction, covenant, or similar binding agreement.
¶ 42 However, the majority, citing no authority and acknowledging that the
language of the statute is “plain and unambiguous,” simply concludes that the
decision of the ARC “ha[s] the effect of prohibiting[ ] the installation of a solar
collector.” The majority claims, in spite of counsel’s concession, that “the provisions
of . . . the Declaration which treat the installation of solar panels as an ‘improvement’
subject to aesthetic regulation by the ARC effectively prohibit their installation.” This
approach, however, ignores the fact that the ARC has the “sole discretion” to approve
or reject any requested improvement. Stated another way, the establishment of the
ARC does not effectively preclude any improvement, it merely enables a group of
individuals to make decisions on “the desirability and/or attractiveness of particular
improvements.”
¶ 43 The majority looks solely to the effect of the ARC’s decision, not the source of
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the restriction, and in so doing, ignores the plain language of N.C.G.S. § 22B-20.
¶ 44 However, even assuming the action by the ARC is covered under subsection (b)
in that it “ha[s] the effect of” prohibiting the installation of solar collectors, the
majority errs in concluding that subsection (d) does not apply. Here the trial court
found that the solar collectors on defendants’ property “are visible by a person on the
ground on a roof surface that slopes downward toward the same areas open to
common or public access that the façade of the structure faces.” Therefore, as noted
by Justice Morgan in his dissenting opinion, subsection (d) applies so long as the
relevant deed restriction or covenant “would prohibit the location of solar collectors
as described in subsection (b).” N.C.G.S. § 22B-20(d).
¶ 45 According to the majority, the “deed restriction, covenant, or similar binding
agreement” in this case is “the ARC’s restriction of the use of solar panels under
provisions of Article XI of the Declaration.” Based upon the majority’s own
characterization, the ARC’s decision certainly “would prohibit the location of solar
collectors” within the meaning of subsection (d) since it did in fact prohibit defendants
from placing solar panels on the street-facing side of their roof. In other words, if the
majority believes that the ARC’s decision constitutes a “deed restriction, covenant, or
similar binding agreement” under subsection (b), then logically it must also conclude
that the decision falls under subsection (d)’s exception.
¶ 46 Despite the majority’s overbroad reading of subsection (b), it narrowly reads
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subsection (d). It appears to limit the application of subsection (d) to situations where
a deed restriction, covenant, or similar binding agreement contains express language
prohibiting the installation of solar collectors. Such a result clearly is not what the
General Assembly intended. It is puzzling why the majority would interpret
subsection (b) so broadly but subsection (d) so narrowly. A better reading of the plain
language is that a restriction which falls under subsection (b) is not void if it meets
one of the criteria enumerated in subsection (d).
¶ 47 Lastly, even if the majority’s application of subsections (b) and (d) was correct,
the appropriate remedy still would not be to grant summary judgment in defendants’
favor. Rather, the case should be remanded to the trial court to determine whether
subsection (c) applies. The trial court summarily concluded that “subsection (c) . . .
is not applicable because subsection (d) is applicable.” Thus, the trial court never
found that the ARC’s decision prevented “the reasonable use of a solar collector”
under subsection (c). N.C.G.S. § 22B-20(c). This factual determination is for the trial
court, not an appellate court. Therefore, this case should be remanded to the trial
court to make this factual determination.
Chief Justice NEWBY joins in this dissenting opinion.