BLACK HORSE RUN PROP. OWNERS ASSOCIATION-RALEIGH, INC. v. Kaleel , 88 N.C. App. 83 ( 1987 )

362 S.E.2d 619 (1987)

BLACK HORSE RUN PROPERTY OWNERS ASSOCIATION—RALEIGH, INC., a non-profit North Carolina Corporation,
v.
George Allen KALEEL and wife, Faye Smith Kaleel.

No. 8710SC363.

Court of Appeals of North Carolina.

December 15, 1987.

Boxley, Bolton & Garber by Ronald H. Garber, Raleigh, for plaintiff-appellee.

George R. Barrett and John T. Hall, Raleigh, for defendants-appellants.

MARTIN, Judge.

The basic issue raised by this appeal is whether the Kaleels' radio towers are "structures" within the meaning of the restrictive covenants, so that approval by plaintiff's Architectural Control Committee was required prior to their erection. We hold that they are and affirm the trial court's judgment.

Restrictive covenants are not generally favored in the law; any ambiguities in the restrictions are to be resolved in favor of the free and unrestricted use of the land. Hobby & Son v. Family Homes, 302 N.C. 64, 274 S.E.2d 174 (1981). Nevertheless, such covenants must be reasonably construed to give effect to the intention of the parties, and the rule of strict construction may not be used to defeat the plain and obvious purposes of a restriction. Long v. Branham, 271 N.C. 264, 156 S.E.2d 235 (1967).

In construing restrictive covenants, the fundamental rule is that the intention of the parties governs, and that their intention must be gathered from study and consideration of all the covenants contained in the instrument or instruments creating the restrictions.

Id. at 268, 156 S.E.2d at 238 (emphasis original). A restrictive covenant which requires prior approval of building plans is enforceable when it is applicable to all lots in a subdivision as part of a uniform plan of development. Boiling Spring Lakes v. Coastal Services Corp., 27 N.C.App. 191, 218 S.E.2d 476 (1975).

Both Mr. and Mrs. Kaleel offered testimony tending to show that during the negotiations for the purchase of their lot, and at the time of the closing, representatives of the original developer of the subdivision told them that radio towers such as those erected by appellants were not considered a "structure" within the meaning of the restrictive covenant. After permitting defendants to make an offer of proof, the trial court sustained plaintiff's objection to the testimony. The Kaleels assign error to the court's ruling, contending that the term "structure," as used in the restrictive covenant, is ambiguous and that statements made by agents of the developer are admissible to show the developer's intention that its use of that term in the restrictive covenant would not apply to a radio tower. We disagree. The developer is not a party to this action; neither of the agents to whom the statements were attributed was called as a witness. The statements were offered by appellants "in evidence to prove the truth of the matter asserted" and are, therefore, inadmissible as hearsay. G.S. 8C-1, Rule 801(c). This assignment of error is overruled.

Notwithstanding its exclusion of the Kaleels' testimony concerning the developer's representations, the trial court found that such representations had been made and that the Kaleels had, at least in part, relied upon those representations when they purchased their lot. The Kaleels assign error to these findings, since the evidence supporting them had been ruled inadmissible. However, the Kaleels have failed to show that they have been prejudiced in any respect by the error as the improper findings were favorable to them and, in any event, were not required to sustain the court's conclusions of law. Where there are sufficient findings of fact based on competent evidence to support the trial court's conclusions of law, the judgment will not be disturbed because of other erroneous findings which do not affect the conclusions. Wachovia Bank v. Bounous, 53 N.C.App. 700, 281 S.E.2d 712 (1981); Allen v. Allen, 7 N.C.App. 555, 173 S.E.2d 10 (1970).

The Kaleels assign error to the trial court's conclusion that the radio towers which they erected, along with the supporting guy wires and concrete pads, are "structures" within the meaning of the restrictive covenants. They contend that the term "structures" is ambiguous and that the court made no findings of fact with respect to the meaning which the parties intended the term to have. We find no ambiguity and agree with the conclusion of the trial court.

Our Supreme Court has held that radio towers are structures within the meaning of statutes levying a tax upon materials "which shall enter into or become a part of any building or any other kind of structure...." Watson Industries v. Shaw, Comr. of Revenue, 235 N.C. 203, 69 S.E.2d 505 (1952). The Court noted that "structure" is defined as "something constructed or built" and stated "[t]hat a radio tower comes within the accepted definition of the term ``structure' would seem to be beyond question." Id. at 207-8, 69 S.E.2d at 509. Courts of other states have held that radio towers are "structures" within the meaning of restrictive covenants. See Mitchell v. Gaulding, 483 S.W.2d 41 (Tex.Civ.App. 1972) (125-foot radio tower is a "structure" for purposes of restrictive covenant prohibiting all structures other than single-family residences, private garages and other outbuildings necessary for single-family use); La Vielle v. Seay, 412 S.W.2d 587 (Ky. 1966) (64-foot television reception and ham radio transmission tower is a "structure" for the purposes of restrictive covenant governing construction of a building, wall, fence "or other structure"); Parker v. Hough, 420 Pa. 7, 215 A.2d 667 (1966) (50-foot radio tower is a "structure" for purposes of deed restriction prohibiting structures other than single family dwellings, garages and specified accessory structures). This assignment of error is overruled.

Finally, the Kaleels contend that The Association has waived its right to enforce the restrictive covenant and that the trial court erred in its conclusion to the contrary. Their argument is premised upon evidence, and findings by the trial court, that another resident of the subdivision had erected a single radio tower upon his lot after receiving oral permission from the Architectural Control Committee, but without submitting plans for approval. The tower was subsequently dismantled and removed when the owner sold his lot and moved away from the subdivision.

In our view, these findings do not compel a conclusion that The Association has waived its right to enforce the restriction. An acquiescence in a violation of restrictive covenants does not amount to a waiver of the right to enforce the restrictions "unless changed conditions within the covenanted area are ``so radical as practically to destroy the essential objects and purposes' of the scheme of development." Barber v. Dixon, 62 N.C.App. 455, 459, 302 S.E.2d 915, 918, disc. rev. denied, 309 N.C. 191, 305 S.E.2d 732 (1983), quoting Tull v. Doctors Building, Inc., 255 N.C. 23, 39, 120 S.E.2d 817, 828 (1961). Accord Williamson v. Pope, 60 N.C.App. 539, 299 S.E.2d 661 (1983) (plaintiffs' failure to enforce covenant against motel in residential area did not waive plaintiffs' right to enforce covenant against convenience store); Mills v. Enterprises, Inc., 36 N.C.App. 410, 244 S.E.2d 469 disc. rev. denied, 295 N.C. 551, 248 S.E.2d 727 (1978) (use of residential lot for business parking was not significant enough to constitute waiver of right to enforce covenant prohibiting commercial use); Van Poole v. Messer, 25 N.C. App. 203, 212 S.E.2d 548 (1975) (plaintiffs' failure to enforce covenant against a house trailer on another lot 800 feet from defendants' trailer did not render covenant unenforceable); Cotton Mills v. Vaughan, 24 N.C.App. 696, 212 S.E.2d 199 (1975) (plaintiffs' failure to object to the use of four other residences for business purposes does not constitute waiver of protection of restrictive covenant). See also Webster, Real Estate Law in North Carolina § 389 (Hetrick rev. 1981 and Supp.1987). In our view, permitting one property owner to erect a single radio tower which, according to the evidence, was not visible to passersby from the street does not amount to such a radical departure from the restrictive covenants as "practically to destroy the essential objects and purposes" of the covenant and does not, therefore, constitute a waiver of plaintiff's right to enforce the restrictive covenants.

The Kaleels' remaining assignments of error neither merit discussion nor afford any grounds for disturbing the judgment of the trial court. The judgment is affirmed.

Affirmed.

EAGLES and PARKER, JJ., concur.