Smith v. ASSOCIATION FOR RETARDED CITIZENS FOR HOUSING DEVELOPMENT SERV.

331 S.E.2d 324 (1985)

Bernard R. SMITH and wife, Mary Ellen Smith, Mike Hodgins and wife, Hilary Hodgins, Lewis Anton and wife, Mary E. Anton, Alton L. Sibley and wife, Juanita H. Sibley, Joseph H. Jones, and wife, Mary A. Jones, Archie Wood and wife, Betty Wood, Cecil Bennett, Jr. and wife, Jo Ann Jones Bennett, Edna W. Gathercole, William B. Mercer and wife, Patricia M. Mercer, Brenda J. Norman and husband, Henry D. Norman
v.
ASSOCIATION FOR RETARDED CITIZENS FOR HOUSING DEVELOPMENT SERVICES, INC., Rufus L. Edmisten, Attorney General of the State of North Carolina, and Westminster Company.

No. 843SC1075.

Court of Appeals of North Carolina.

July 2, 1985.

Dunn & Dunn by Raymond E. Dunn and Raymond E. Dunn, Jr., New Bern, for plaintiffs.

Moore, Van Allen, Allen & Thigpen by Joseph W. Eason and Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Robert R. Reilly, Raleigh, for the Association for Retarded Citizens for Housing Development Services, Inc.

Stith and Stith, P.A. by Lawrence A. Stith, New Bern, for Westminster Co.

WELLS, Judge.

Plaintiffs bring forth one assignment of error in which they contend that the trial court erred in granting summary judgment. Plaintiffs contend that the nature of the structure erected by ARCHDS presents a material question of fact: whether the structure is a single family residential dwelling within the meaning of the North Hills Subdivision restrictive covenants. They also argue that if there is no genuine issue as to any material fact, the trial court erred by granting defendants' motion for summary judgment. We find that the trial court properly entered summary judgment for all defendants.

Under N.C.Gen.Stat. § 1A-1, Rule 56 of the Rules of Civil Procedure (1983), a defendant moving for summary judgment:

[I]s entitled to summary judgment only if he can produce a forecast of evidence, which, when viewed most favorably to plaintiff, would, `if offered by plaintiff at the trial, without more, ... compel a directed verdict' in defendant's favor. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 473, 251 S.E.2d 419, 423 (1979). In other words, if the forecast of evidence available for trial, as adduced on the motion for summary judgment, demonstrates that plaintiff will not at trial be able to make out at least a prima facie case, defendant is entitled to summary judgment. Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981). In such cases there is no genuine issue of material fact. Moore v. Fieldcrest Mills, Inc., supra.

Mims v. Mims, 305 N.C. 41, 286 S.E.2d 779 (1982) (emphasis in original); see generally W. Shuford, N.C.Civ.Prac. and Proc. § 56-7 (2nd ed. 1981). Applying these principles to the forecast of evidence before the trial court, we must first determine the structural requirements imposed by the North Hills Subdivision restrictive covenants, and then determine whether the forecast of evidence in this case indicates that any issue of material fact remains as to whether the ARCHDS group care facility violates the restrictive covenants.

In Hobby & Son v. Family Homes, 302 N.C. 64, 274 S.E.2d 174 (1981), our supreme court stated the general rules applicable to the enforcement of restrictive covenants:

While the intentions of the parties to restrictive covenants ordinarily control the construction of the covenants, ... such covenants are not favored by the law, ... and they will be strictly construed to the end that all ambiguities will be resolved in favor of the unrestrained use of land.... The rule of strict construction is grounded in sound considerations of public policy: It is in the best interests of society that the free and unrestricted use and enjoyment of land be encouraged to its fullest extent.... Even so, we pause to recognize that clearly and narrowly drawn restrictive covenants may be employed in such a way that the legitimate objectives of a development scheme may be achieved. Provided that a restrictive covenant does not offend articulated considerations of public policy or concepts of substantive law, such provisions are legitimate tools which may be utilized by developers and other interested parties to guide the subsequent usage of property.

... each part of the covenant must be given effect according to the natural meaning of the words, provided that the meanings of the relevant terms have not been modified by the parties to the undertaking.... [Citations omitted].

In a previous case, this court interpreted the North Hills Subdivision restrictive covenants. In Higgins v. Builders and Finance, Inc., 20 N.C.App. 1, 200 S.E.2d 397 (1973), cert. denied, 284 N.C. 616, 201 S.E.2d 689 (1974), this court held that the language of the covenant providing that "[n]o structure shall be erected, altered, placed or permitted to remain on any lot other than for use as a single family residential dwelling" imposed both a "use" restriction and a "structural" restriction. In reaching its decision, the Higgins court held:

In clear language the restriction prohibits the erection, altering, placing or permitting to remain on any lot of any structure other than for use as a single family residential dwelling. Erecting on any lot or permitting to remain thereon any duplex house, even though it remain vacant and unoccupied and not "used" at all, even by one family, would be a violation of the covenant.

Higgins v. Builders and Finance, Inc., supra. The Higgins court's interpretation of the North Hills Subdivision's covenants is applicable to the facts of the case before us under the doctrine of stare decisis. McGill v. Lumberton, 218 N.C. 586, 11 S.E.2d 873 (1940).

Plaintiffs concede that the ARCHDS group health care facility is a "residential" use of the dwelling. The law in this state clearly comports with plaintiffs' position. N.C.Gen.Stat. §§ 168-22 and -23 (1982); see also Hobby & Son v. Family Homes, supra (holding that group health care facility was a "residential" use as opposed to an institutional use of the property. In dicta, the Hobby court stated, "[w]hile we deem it unnecessary to reach the question of whether the individuals living at the [group care] home constitute a family, we are compelled to observe that the surrogate parents and the adults subject to their supervision function as an integrated unit rather than independent persons who share only the place where they sleep and take their meals as would boarders in a boarding house").

Plaintiffs contend that their forecast of evidence substantiates their contention that the ARCHDS dwelling is institutional in design, and, therefore, non-conforming. First, they argue that the ARCHDS structure is composed of two separate units: one for the adult supervisory personnel and one for the disabled adults. Second, they note that the ARCHDS dwelling has twice the square footage as any other dwelling in the subdivision. Third, they contend that dwelling incorporates institutional design features such as a commercial lock system, five exterior door and entrances to the dwelling, barrier free access, and two separate mechanical rooms. These facts are undisputed by defendants.

The ARCHDS group care home contains some 3,694 square feet under a single roof and is twice the size of other homes in the North Hills Subdivision. Furthermore, in order to obtain federal flood insurance protection, as required by HUD, the lot on which the structure was built was elevated five feet prior to construction. The restrictive covenants in issue only prohibit construction of dwellings with less than 1,200 square feet of floor space. No maximum size is established beyond the limitations imposed by setback and sideline covenant restrictions and applicable building codes. No covenant provision prohibits elevation of the construction site. The record establishes that the ARCHDS structure meets all covenant standards relating to setback and sidelines and complies with all applicable building code requirements.

The commercial lock system, five exterior doors and entrances to the facility, exterior barrier free access, and two separate mechanical rooms do not violate any covenant requirement per se. It is undisputed that these features comply with the terms of the restrictive covenants requiring use of materials of good quality and workmanship. Furthermore, these deviations from the typical suburban family residence are necessary to accomodate the developmentally disabled adults residing in the structure and comply with HUD, NCDHR, and building code requirements for group care homes.

The group care supervisory personnel live in a 361 square foot living area that is separated from the disabled adults. This area contains a separate living room, bedroom, and bathroom. The plumbing, exterior venting, electrical receptacles, and wiring necessary for a separate kitchen were stubbed-in the walls and floors. The supervisory personnel's living area is separated from the rest of the living area by walls and an interior doorway using an exterior-type door rather than an interior-type door. All the locks in the supervisory personnel's living area use different keys than those used in the living area of the disabled adults. These design features do not violate any specific restrictive covenants.

Plaintiffs contend that the ARCHDS dwelling is similar to the structure determined to be in violation of the restrictive covenants in Higgins. The builder, in Higgins, had constructed duplex apartments. The trial court issued a restraining order prohibiting further construction. A consent order was entered in which the builder was to modify the structures to conform with the North Hills Subdivision restrictive covenants. The builder subsequently placed one doorway in the common wall in each duplex and left one stubbed-in kitchen in each duplex. Plaintiffs, in that case, contended that the structural changes did not alter the character of the duplexes. The trial court issued a mandatory injunction for the removal of the duplexes. The trial court relied on numerous factors in finding that the buildings erected did not conform with the North Hills Subdivision restrictive covenants: (1) intent of the builder to construct duplexes, (2) general outside appearance as a duplex, (3) separate electrical meters and systems, (4) separate utility rooms, (5) separate kitchens and laundry areas, (6) separate postal enumerations, and (7) separate heating and cooling systems. The trial court concluded as a matter of law that installing one doorway in the common duplex interior wall and stubbing-in one kitchen did not convert the building into a single family residence so as to conform with the restrictive covenants. The builder was ordered to submit another plan to convert the structures into single family structures. The builder offered a plan suggesting minor structural changes, which the trial court again rejected. The Higgins court classified the defendant's alteration of the duplexes by inserting a doorway in the common walls and finishing only one kitchen as "minor" alterations, and found that all of the trial court's remaining findings of fact tended to show that the structure was not a single family structure.

The Higgins duplex is clearly distinguishable from the ARCHDS dwelling. The ARCHDS group care home is designed to house an extended family. The general outside appearance of the structure is that of a single family residence, albeit with barrier free access for the disabled adults living therein. The dwelling is serviced by common electrical, heating, cooling, and plumbing systems. Furthermore, the dwelling has but one postal designation.

We hold that based on the principles of construction enunciated in Hobby the plaintiffs' forecast of evidence shows that the ARCHDS structure conforms to the requirement of single family design and construction. The ARCHDS dwelling has the outward appearance of a single family residence except for those modifications necessary to use the dwelling for handicapped individuals; i.e., barrier free access and extra doors. Furthermore, the unique interior modifications are those minimally necessary to accommodate the disabilities of the residents. Most of the exterior and interior structural changes were required by either federal, state, or local regulations. The restrictive covenants do not specifically prohibit the structural features of which plaintiffs complain, and nothing in the covenants would prohibit an existing resident of the community from altering a home to accommodate a handicapped family member. We conclude that the trial court, therefore, properly entered summary judgment for defendants. Mims v. Mims, supra.

Our decision makes it unnecessary for us to address either plaintiffs' assignments of error relating to the applicability of G.S. §§ 168-22 and -23 to "structural" limitations imposed by restrictive covenants or the constitutionality of the statute as applied to "structural" restrictions contained in restrictive covenants.

Our decision ought not to be interpreted to mean that restrictive covenants cannot be drafted so as to regulate the character of the structures erected in a neighborhood or their utilization. Hobby & Son v. Family Homes, supra. The North Hills Subdivision restrictive covenants simply do not prohibit the type of structure constructed by the ARCHDS.

The trial court's entry of summary judgment for all defendants must be and is hereby

Affirmed.

JOHNSON and EAGLES, JJ., concur.