eCases

(2006). The
trial court stated it did “not have sufficient information from the pleadings to address
the nature and character of the community as well as the nature and character of the
construction generating the complaint.” The court denied the remaining relief sought
by both parties.
The parties then conducted discovery. In November 2016, Defendant Vista
recorded a second amendment to the 2007 Declaration (“November 2016
Amendment”) which nullified and struck the March 2016 Amendment which the trial
court had determined was unreasonable as a matter of law in its October 2016 order.
The November 2016 Amendment replaced Section 5.1 of the 2007 Declaration with
the following:
Section 5.1. Utility and Communications Facility
Easements and Leaseholds. Developer hereby reserves the
right without further consent from any Owner to grant to
any public utility company, municipality, private entity,
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Opinion of the Court
the Association and any governmental unit, water or sewer
company an easement for a right-of-way in all streets and
roads on which the land hereby conveyed abuts, in and to
a 10 foot strip of land located along the front lot line, a 5
foot strip of land located along any other lot line for the
right to erect and lay, or cause to be erected or laid,
maintained, removed or repaired, all light, telephone and
sewage lines, access easement and other customary or
usual appurtenances as may, from time to time, in the
opinion of the Developer, or the applicable grantee or
lessee, as be deemed necessary by such party for
maintenance and repair of said utilities or other
appurtenances hereinabove delineated. The Developer
may grant an easement or leasehold interest in all or any
portion of one Developer owned Lot for the placement and
construction of one wireless communications tower in order
to improve wireless communications services to Riverbend
Highlands. Any right of recourse on account of temporary
or other inconvenience caused thereby against Developer is
hereby waived by each Owner. Notwithstanding anything
contained in this Declaration, the residential construction
of a single monopole wireless communications tower on
said Lot and the operation thereof and the construction and
operation of such shall not be considered a nuisance under
this Declaration or otherwise a violation of this
Declaration.
On 5 October 2017, Plaintiffs filed a motion for summary judgment. With the
motion, Plaintiffs submitted the Rule 30(b)(6) depositions of Defendants and the
affidavits of Fred Epeley5 and Plaintiff Angela Poovey. On 8 January 2018,
Defendant APC filed a motion for summary judgment, noting its intent to rely upon
the pleadings, affidavits, depositions, and other documents produced in discovery,
5 Fred Epeley appears to be a nominal defendant, and his affidavit included photographs of the
completed cell tower.
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Opinion of the Court
and attached the affidavit of David Pierce, the Senior Vice President of Operations
for APC Towers. On 2 February 2018, Defendant Vista also filed a motion for
summary judgment.
After a hearing on the summary judgment motions, the trial court denied
Plaintiffs’ motion for summary judgment and granted Defendants’ motion for
summary judgment. After a cross-claim by a nominal defendant was dismissed,
Plaintiffs timely appealed.
II. Standard of Review
The standard of review for a summary judgment motion is well established:
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.” “When considering a motion
for summary judgment, the trial judge must view the
presented evidence in a light most favorable to the
nonmoving party.” If the movant demonstrates the
absence of a genuine issue of material fact, the burden
shifts to the nonmovant to present specific facts which
establish the presence of a genuine factual dispute for trial.
Nevertheless, “[i]f there is any question as to the weight of
evidence summary judgment should be denied.”
In re Will of Jones,

362 N.C. 569

, 573-74,

669 S.E.2d 572

, 576 (2008) (alteration in
original) (citations omitted).
None of the parties contend there is any genuine issue of material fact and all
argued before the trial court, and on appeal, that summary judgment was appropriate
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Opinion of the Court
as a matter of law. The parties submitted affidavits, depositions, and discovery
materials to support their motions, providing detailed information regarding the
subdivision, the Declarations and amendments, the dimensions and characteristics
of the Tower, the location of the Tower, and views of the Tower from various points
in the subdivision. But the material facts regarding the nature and character of the
subdivision and the Tower are not disputed. Plaintiffs’ evidence regarding the facts
addresses primarily their opinion that the Tower obstructs the view from their lot
and would interfere with their plans to construct a home on the lot. For purposes of
review of the ruling on summary judgment, we take Plaintiffs’ evidence as true and
assume that the Tower does obstruct the view from their lot. Defendants’ evidence
regarding the facts does not conflict with Plaintiffs’ evidence; it addresses different
facts, such as the character of the subdivision, topography, and information regarding
the location and need for the Tower. Plaintiffs’ legal arguments address primarily
their contention that the Tower is a commercial or business activity and that the
November 2016 Amendment is unreasonable because it is inconsistent with the
character of the subdivision as a residential community.
III.   Reasonableness of Amended Restrictive Covenants
Plaintiffs argue “[t]he cell tower location is not consistent with residential lot
use nor the utility easement size limitations required by the 2007 Declarations.” But
Defendant Vista amended the 2007 Declaration, and Plaintiffs do not challenge the
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Opinion of the Court
procedure by which the amendment was adopted, so the relevant question is whether
the Tower’s location is consistent with the November 2016 Amendment to the
Declaration.   Placement of the Tower was authorized by the November 2016
Amendment. In the 2007 Declaration, Defendant Vista reserved the authority to
amend “[a]ny of the provisions” of the Declaration “at any time” it still owned a
subdivision lot, and there is no dispute that Defendant Vista owned many lots. To
rebut the presumption of validity of the November 2016 Amendment, Plaintiffs
contend the November 2016 Amendment is unreasonable based on Armstrong v.
Ledges Homeowners Ass’n,

360 N.C. 547

.
In Armstrong, our Supreme Court considered “to what extent the homeowners’
association may amend a declaration of restrictive covenants.”

Id. at 548

 (emphasis omitted). The Supreme Court held that “a provision authorizing a
homeowners’ association to amend a declaration of covenants does not permit
amendments of unlimited scope; rather, every amendment must be reasonable in
light of the contracting parties’ original intent.”

Id. at 559

633 S.E.2d at 87

 (footnote
omitted). A court should consider various factors to determine if an amendment is
reasonable, including “the language of the declaration, deeds, and plats, together with
other objective circumstances surrounding the parties’ bargain, including the nature
and character of the community.”

Id. at 548

.
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Opinion of the Court
In Armstrong, the neighborhood consisted of “forty-nine private lots set out
along two main roads and four cul de sacs.”

Id. at 560

633 S.E.2d at 88

. There were
no common areas or amenities.

 The Supreme Court noted that “[g]iven the nature
of this community, it makes sense that the Declaration itself did not contain any
affirmative covenants authorizing assessments. Neither the Declaration nor the plat
shows any source of common expense.”

   The only shared obligation in the
covenants was payment of the utility bill for a lighted sign at the entrance.

 (“Each
lot owner’s pro rata share of this expense totals approximately seven dollars and
twenty cents per year.”).
Over the years, the Association began charging lot owners for additional
assessments up to about $80 to $100 per year to cover the costs of “mowing the
roadside on individual private lots . . . for snow removal from subdivision roads, and
for operating and legal expenses.”

Id. at 551

633 S.E.2d at 82-83

.      After the
petitioners raised an objection to the increasing demands for payment of various
assessments by the lot owners, the Association adopted amendments to the bylaws.

Id. at 552

633 S.E.2d at 883

. The amended bylaws were “substantially different”
from the “originally recorded Declaration” and included several entirely new
obligations imposed upon lot owners,
including    a    clause   requiring    Association
membership, a clause restricting rentals to terms of six
months or greater, and clauses conferring powers and
duties on the Association which correspond to the powers
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Opinion of the Court
and duties previously adopted in the Association’s
amended by-laws.
Additionally, the Amended Declaration imposes new
affirmative obligations on lot owners.         It contains
provisions authorizing the assessment of fees and the entry
of a lien against any property whose owner has failed to
pay assessed fees for a period of ninety days. According to
the Amended Declaration, such fees are to be “assessed for
common expenses” and “shall be used for the general
purposes of promoting the safety, welfare, recreation,
health, common benefit, and enjoyment of the residents of
Lots in The Ledges as may be more specifically authorized
from time to time by the Board.” Special assessments may
be made if the annual fee is inadequate in any year;
however, surplus funds are to be retained by the
Association. Unpaid assessments bear twelve percent
interest per annum.

Id. at 552-53

, 83-84.
The Supreme Court held the amendment was unreasonable because it gave
the Association “practically unlimited power” to assess lots and was “contrary to the
original intent of the contracting parties.”

Id. at 561

633 S.E.2d at 88

. The Supreme
Court also considered the nature and character of the community, since the original
declarations did not provide for any common areas or amenities which might require
increasing assessments.

In Southeastern Jurisdictional Administrative Council, Inc. v. Emerson, our
Supreme Court addressed a community with a very different nature and character
than in Armstrong and held an amendment which imposed an annual “SERVICE
CHARGE in an amount fixed by the SEJ Administrative Council for police protection,
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Opinion of the Court
street maintenance, street lighting, drainage maintenance, administrative costs and
upkeep of the common areas” to be reasonable after considering the factors noted in
Armstrong.

363 N.C. 590

, 599-600,

683 S.E.2d 366

, 372 (2009) [hereinafter SJAC]. In
highlighting the differences between the two cases, the Court noted the importance
of “the nature and character of the community” and “the legitimate expectations of
[the] lot owners:”
In considering “the legitimate expectations of [the]
lot owners” in Armstrong, this Court emphasized that, at
the time the plaintiff property owners purchased their lots,
the community contained “no common areas or amenities,”
and that “[n]either the Declaration nor the plat shows any
source of common expense.” The plaintiffs in Armstrong
professed a specific desire to live in a community lacking
amenities for which they did not wish to pay, and they
believed at the time of purchase that The Ledges was such
a community. This Court agreed that the plaintiffs
“purchased their lots without notice that they would be
subjected to additional restrictions on use of the lots and
responsible for additional affirmative monetary obligations
imposed by a homeowners’ association” and therefore,
concluded that it would be unreasonable to enforce the
amended covenants against them and require them to pay
the disputed fees.
The Assembly stands in stark contrast to the
community at issue in Armstrong. Whereas The Ledges
community had only existed for about fifteen years when
that controversy arose and was a fairly typical subdivision,
the Assembly has existed for nearly a century and has
spent that entire time purposefully developing its unique,
religious community character. To that end, the Council
and its predecessors have subjected the Assembly’s
residential lots to a wide variety of detailed restrictions,
and they have done so consistently since the first lots were
sold. Since the Assembly’s establishment, all deeds
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Opinion of the Court
conveying land within the community have included
covenants requiring compliance with the bylaws, rules, and
regulations periodically adopted by the Council.

Id. at 597-98

, 683 S.E.2d at 370-71 (2009) (alterations in original) (citations omitted).
Defendant Vista argues that Armstrong does not apply to this case because
“there is no mandate from the Supreme Court that applies the ‘reasonableness’
standard to amendments made by a developer within the developer’s control period
of a subdivision.” But our Supreme Court has made no distinction in its analysis of
the reasonableness of amendments based upon whether the amendment was made
by a developer or a homeowners association. See generally Armstrong,

360 N.C. 547

.     For example, SJAC involved a unique situation, as the new
assessments were imposed by neither a traditional homeowners association nor a
traditional developer but by the
Southeastern Jurisdictional Administrative Council, Inc.
(‘‘the Council’’) is a nonprofit, non-stock corporation that
manages, owns, develops, and sells land in Haywood
County known as the Lake Junaluska Assembly
Development. In addition, the Council maintains and
operates the Assembly by providing such services as street
lighting, fire and police protection, and maintenance of
roads and common areas. The Council is the successor in
interest to the Lake Junaluska Assembly; the Lake
Junaluska Methodist Assembly; and ultimately the
Southern Assembly of the Methodist Church, which was
the Assembly’s earliest incarnation. The Council operates
the Assembly under the auspices of the Southeastern
Jurisdictional Conference of the United Methodist Church
in the United States of America.
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363 N.C. at 591, 683 S.E.2d at 367. Thus, the requirement of reasonableness applies
to an amendment adopted by a developer as well as by a homeowners association.
See id.
In addition, Defendant Vista argues that a later statutory amendment
provides that an amendment properly adopted is presumed reasonable. In 2013, the
Planned Community Act was amended to add this provision: “Any amendment passed
pursuant to the provisions of this section or the procedures provided for in the
declaration are presumed valid and enforceable.” N.C. Gen. Stat. § 47F-2-117(d)
(2017). Defendant Vista argues that since the “[November 2016 Amendment] was
adopted and recorded in compliance with the procedures set forth in Section 10.4 of
the Declaration, it is accordingly entitled to this presumption of validity and
enforceability.”
Plaintiffs respond that North Carolina General Statute § 47F-2-117(d)
addresses only the procedure for amending declarations and not “substantive
challenges to amendments.” We agree that North Carolina General Statute § 47F-2-
117(d) does not eliminate the reasonableness requirement as set out in Armstrong.
In Kimler v. Crossings at Sugar Hill Property Owner’s Ass’n, this Court addressed the
application of North Carolina General Statute § 47F-2-117 to the authority of a
homeowner’s association to amend a declaration but then also considered the
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reasonableness of the amendment.

248 N.C. App. 518

789 S.E.2d 507

 (2016). After
holding the amendment in question to be valid and enforceable, this Court noted:
Sugar Hill HOA’s authority to amend the
Declaration is not unlimited. Rather, our Supreme Court
has held that an owners’ association’s authority to amend
a declaration is limited to those amendments which are
“reasonable [.]” “Reasonableness may be ascertained from
the language of the declaration, deeds, and plats, together
with the other objective circumstances surrounding the
parties’ bargain, including the nature and character of the
community.”

Id. at 524

789 S.E.2d at 511

 (citation omitted) (quoting Armstrong,

360 N.C. at 548

).
Plaintiffs argue, based on Armstrong, the construction of the Tower was not
reasonable “in light of the contract parties’ original intent” based on the 2007
Declaration. Plaintiffs further argue “the intent of a residential use only community
is evident in the interdependence of the restriction on non-residential use and the
requirement of narrow utility easements. Examining the nature of the community
prior to the [November] 2016 Amendment supports a finding of an unreasonable
amendment.” Plaintiffs note the 2007 Declaration provides for fifteen or ten-feet wide
utility easements along the lot lines, and the only utility structures in the subdivision
before construction of the Tower were “small utility poles approximately twelve to
fifteen inches in diameter and approximately twenty-five to thirty feet tall.” These
poles were “sparsely distributed within the subdivision[] . . . to provide telephone and
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electrical service to houses . . . and do not substantially interfere with a lot owners
use of their lot or view from their lot.” Plaintiffs characterize the Tower as a business
or commercial use of the lot and argue that the character of the neighborhood is
residential, as the Declarations prohibit “business activities” in the community.
It is true that most utility companies are businesses, and they conduct
commercial activities; they sell products and services for a profit. But their business
is the provision of utility services, including utilities serving residential customers.
The unmanned tower is not a production facility or store location; it is more
comparable to a power line or sewer pipe. Plaintiffs are correct that the subdivision
is limited to residential use; Defendants agree but argue that the Tower “is a utility
installation for the benefit of the Riverbend Highland development, not a commercial
endeavor.”
The 2007 Declaration provided for utility easements for
light, telephone and telegraph poles, wires, water and gas
pipes and conduits, catch basins, surface drains, sewage
lines, access easement and other customary or usual
appurtenances as may, from time to time, in the opinion of
the Developer, or any utility company, or governmental
entity, be deemed necessary for maintenance and repair of
said utilities or other appurtenances.
Plaintiffs focus on the limitation of fifteen and ten-feet wide strips of land reserved
for utilities in the 2007 Declaration, as opposed to a larger area as required for a
cellular tower. But the only substantive change the November 2016 Amendment
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Opinion of the Court
made to the 2007 Declaration as to utility easements was to allow one of the 573 lots
in the community to be devoted to a cellular tower. The November 2016 Amendment
eliminated the problem noted by the trial court in the March 2016 Amendment, which
would have given Defendant Vista “carte blanc [sic] ability to remove the very essence
and nature of the Subdivision from any lot” since that amendment did not limit the
number of lots which could be used for this purpose. The November 2016 Amendment
allows a cellular tower on only one lot of the 573 lots.
Narrow strips of land sufficed for nearly all utilities in residential subdivisions
in the past—such as the telephone and telegraph poles referred to in the 2007
Declaration—but larger installations are sometimes needed for portions of utilities.6
Based upon the 2007 Declarations, the original plan for the community provided for
availability of modern utilities for the residences, including electricity, gas,
telecommunications, water, sewer, and “other customary or usual appurtenances as
may, from time to time, . . . be deemed necessary for maintenance and repair” of these
services. Cellular phone service is a telecommunications service, and even if it was
less common in 2007, it is now well-established that cellular phone service is a “public
utility,” and cellular phone service provides the same service to the residences in the
community as the telephone and telegraph service by wires has traditionally
6 Some of the electrical structures within the subdivision are larger than the roadside poles noted by
Plaintiffs, but the evidence does not address whether those structures are located fully within the
narrow roadside easements. For purposes of summary judgment review, we will assume they are.
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provided.7 See Bellsouth Carolinas PCS, L.P. v. Henderson Cty. Zoning Bd. Of
Adjustment,

174 N.C. App. 574

, 579,

621 S.E.2d 270

, 274 (2005) (“[W]e hold that a
cellular telephone company is a ‘public utility.’ In addition, a cellular telephone tower
which provides cellular telephone service is a ‘public utility station’ under Section
603.01 of the Henderson County Zoning Ordinance. The Board erred as a matter of
law in holding BellSouth was not a public utility and by concluding that the cellular
tower was not a ‘public utility station.’”).
Defendant Vista presented uncontroverted evidence that a cellular tower was
needed in the subdivision to “alleviate the lack of access to highspeed mobile
communications services to [the subdivision] and surrounding areas under a federal
initiative to bring higher speed and accessible communications to more rural areas.”
Defendant Vista considered wireless broadband telephone and internet services to be
“a necessary utility for today’s real estate market and the demand of its lot owners
and potential buyers.” In addition, if Defendant Vista had not agreed for the Tower
to be placed within the subdivision, a similar tower would have been placed on
adjoining land but Defendant Vista would have had no control over “the type of tower,
location, visibility, or other aesthetic factors, including obstruction of views from lots
in Riverbend Highlands.” To select the lot for the Tower, Defendant Vista “worked
with APC Towers to locate the Tower on a lot that provided a balance of coverage and
7 The means of providing a particular utility may change over time, as revealed by the Declarations
reference to “telegraph poles.”
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limited any perceived line of sight impacts for owners and would not require the
granting of an access easement or other easement over lots not owned by [Vista].”
The subdivision is in a mountainous area and had areas with poor cell phone
reception.    The 2007 Declarations provided for utility services, including
telecommunications, for the residents of the subdivision. Defendants determined
there was need for an additional cellular tower in this vicinity. There were other
potential locations for a tower, including on land adjoining the subdivision, although
the tower would still have been visible from some lots in the subdivision. Indeed, a
tower outside the subdivision could have still physically adjoined a lot or lots within
the subdivision. Defendants considered both the technical needs for the location of
the Tower as well as the need to avoid blocking views of subdivision residents and
determined that a lot within the subdivision would best address both concerns. In
the terminology of both the November 2016 Declaration and the 2007 Declaration, a
cellular tower is a “customary or usual appurtenance” which Defendant Vista
“deemed necessary for maintenance” of telephone services in the community.
Plaintiffs’ affidavits and evidence do not refute any of this evidence regarding the
need for a cellular tower to provide reliable phone service in the area or the technical
requirements for its location. Instead, Plaintiffs object because the Tower is on the
lot adjoining theirs and it interferes with their “previously unobstructed view.”
Certainly, the view is an important consideration, particularly in a community in a
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mountainous area. But even if we take the allegations of Plaintiffs’ affidavits as true,
the 2007 Declaration does not promise all lots an “unobstructed view;” but it does
provide for utility service, including telephone service, to all residents and it provides
for changes as needed “from time to time” to maintain and repair the utility services.
After considering the “the language of the declaration, deeds, and plats,
together with other objective circumstances surrounding the parties’ bargain,
including the nature and character of the community,” Armstrong,

360 N.C. at 548