Poovey v. Vista NC Ltd. P'ship

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA19-302

Filed: 19 May 2020

Rutherford County, No. 16-CVS-588

CHAD POOVEY and ANGELA POOVEY, Plaintiffs,

v.

VISTA NORTH CAROLINA LIMITED PARTNERSHIP and APC TOWERS, LLC,

Defendants,

v.

130 OF CHATHAM, LLC, et al., Nominal Defendants.

Appeal by plaintiffs from order entered 26 January 2018 by Judge J. Thomas

Davis in Superior Court, Rutherford County. Heard in the Court of Appeals 2 October

2019.

Cannon Law, P.C., by William E. Cannon, Jr., Mark A. Wilson, and Tiffany F.

Yates, for plaintiffs-appellants.

Hamilton Stephens Steele + Martin, PLLC, by M. Aaron Lay and Daniel J.

Finegan, for defendant-appellee Vista North Carolina Limited Partnership.

Nesxen Pruet, PLLC, by David S. Pokela and Alex R. Williams, for defendant-

appellee APC Towers, LLC.

STROUD, Judge.

Plaintiffs appeal from an order granting summary judgment in favor of

Defendants and denying their motion for summary judgment. Because Defendant

Vista had the authority to amend the declaration and the amendment is reasonable,

POOVEY V. VISTA NC LTD. P’SHIP

Opinion of the Court

the trial court did not err in granting summary judgment in favor of Defendants and

denying Plaintiffs’ motion for summary judgment.

I. Background

In 2010, Plaintiffs became the owners of a lot in the Riverbend Highlands

subdivision in Rutherford County. Defendant Vista North Carolina Limited

Partnership (“Vista”) is the developer of Riverbend Highlands Subdivision, a

residential subdivision with 573 lots. Defendant Vista is also the declarant of the

covenants and restrictions for the subdivision. Riverbend Highlands is in a heavily

wooded mountainous area, and most of the 573 lots are vacant, including Plaintiffs’

lot.

Riverbend Highlands (“Subdivision”) is governed by the “Amended and

Restated Declaration of Covenants and Restrictions as of July 16th 2007” (“2007

Declaration”).1 These restrictions state in relevant part:

Section 4.1. Residential. Each of the Lots in the

Community shall be, and the same hereby are, restricted

exclusively to single-family residential use and shall be

occupied only by a single family, its nurses, aides, servants,

or caretakes, and guests.

....

Section 4.3. Business Activities. No business

activities shall be conducted on any portion of this Planned

Community, not any Lot nor any Residence, provided,

1 Defendant Vista’s predecessor in interest established the subdivision with the Original Declaration,

filed in 1975. The Original Declaration was replaced by the Amended and Restated Declaration

recorded by Defendant Vista in 2007.

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however; private offices may be maintained in residences

constructed on Lots so long as such use is incidental the

primary residential use of the Lot and is approved by the

Board of Directors.

....

Section 5.1 Utility Easements. Developer hereby

reserves the right without further consent from any land

owner to grant to any public utility company, municipality,

the Association or other 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 and also in

and to a 10 foot strip of land located along the front lot line,

and 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

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 authority, be deemed necessary

for maintenance and repair of said utilities or other

appurtenances. Any right of recourse on account of

temporary or other inconvenience caused thereby against

Developer is hereby waived by the Buyer.

....

Section 10.4. Amendments. Any of the provisions of

this Declaration may be annulled, amended or modified as

to all or part of the lots subject to these restrictions at any

time by the filing in the Office of the Register of Deeds of

Rutherford County of any instrument setting forth, such

annulment, amendment or modification, executed by

either the Developer, or assigns at any time during which

it owns of record a lot in Riverbend Highlands Subdivision

or adjacent properties which it has or intends to subdivide

or the Owners of record (as shown upon the records in the

Officer of the Register of Deeds for Rutherford County at

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Opinion of the Court

the time of filing of such instrument) of sixty-seven perfect

(67%) of the Lots subject to these restrictions. Should a

dispute arise between an amendment made by the owners

of record of sixty-seven (67%) of the Lots subject to the

restrictions versus an amendment made by the Developer,

the Developers amendment shall prevail. The procedure

for amendment shall follow the procedure set forth in

Section 47F-2-117 of the Planned Community Act. No

amendment shall become effective until recorded in the

office of the Register of Deeds of Rutherford County, North

Carolina.

In 2015, Defendant Vista was approached by Defendant APC Towers, LLC,

(collectively “Defendants”) about installing a wireless communications tower

(“Tower”) within Riverbend Highlands. In November 2015, Defendant Vista entered

into a lease with Defendant APC Towers to permit the construction and operation of

the Tower on a lot owned by Defendant Vista. In March 2016, Defendant Vista

recorded an amendment to the 2007 Declaration (“March 2016 Amendment”) which

deleted Section 5.1 of the 2007 Declaration and replaced it with this provision:

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,

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, or an

easement or leasehold interest in all or any portion of a lot,

for the right to erect and lay, or cause to be erected or laid,

maintained, removed or repaired, all light, telephone and

telegraph poles, wireless communications tower(s), wires,

water and gas pipes and conduits catch basins, surface

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drains, 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. Any right of

recourse on account of temporary or to her inconvenience

caused thereby against Developer is hereby waived by each

Owner. Notwithstanding anything contained in this

Declaration, the restrictions contained in Article 4 or

otherwise in this Declaration shall not apply to any Lot

whereon Declarant grants an easement or leasehold

interest pursuant to this Section 5.1, with respect to the

grantee’s or lessee’s use of and construction at such Lot.

In April 2016, Defendant Vista sent a letter to Plaintiffs and offered to

exchange their lot for one in another nearby development, either Riverbend

Highlands or Riverbend at Lake Lure. Other affected owners successfully exchanged

lots with Defendant Vista, but Plaintiffs declined to do so. Work began on the Tower

on 11 May 2016. Plaintiffs’ counsel sent Defendant Vista a letter dated 11 May 2016

informing Defendant Vista that the covenants restrict use of the lots to “single family

residential use.” The letter states, “Should you attempt to violate these covenants by

erecting a cell tower on a platted lot, my client will have no choice but to seek

injunctive relief prohibiting the construction and seek reimbursement of their

reasonable attorney’s fees pursuant to the Planned Community Act.” Plaintiffs sent

a letter to Defendant APC Towers on 24 May 2016 informing it of their intent to sue.

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Plaintiffs filed a complaint asking the trial court for a declaratory judgment and

injunctive relief on 1 June 2016.2

The Tower was completed in July 2016. The dimensions of the Tower are

approximately thirty-three feet six inches in diameter at the base. The tower pole is

ten feet in diameter and has a height of 195 feet. It is on a lot adjacent to Plaintiffs’

lot. The president of Vista North Carolina, Inc., the general partner in Defendant

Vista, stated in his affidavit that “[t]he tower was constructed for AT&T to provide

high-speed mobile broadband internet, phone, and related telecommunications

services.”

On 11 August 2016, Defendant Vista filed a motion to dismiss, answer, and

affirmative defenses. On 12 August 2016, Defendants filed a joint motion for

judgment on the pleadings. Their motion noted the various provisions of the 2007

Declaration and the March 2016 Amendment quoted herein and that Defendant Vista

was the developer of the subdivision and still owned a majority of the 573 lots in the

subdivision. Thus, Defendant Vista contended that as the “developer” it had

essentially unlimited authority to amend the 2007 Declaration because the

subdivision was still within the developer control period. Defendants alleged that

wireless telecommunications are a public utility, and Section 5.1 of the 2007

2 Plaintiffs’ complaint also named approximately 150 nominal defendants, including all record owners

of all lots in Riverbend Highlands. One of the nominal defendants appeared in this action before the

trial court but none appealed or appeared before this Court.

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Declaration provided for provision of public utility services. Defendant Vista alleged

the March 2016 Amendment was filed to clarify “that Section 5.1 contemplated the

installation of telecommunication utility facilities, including technologies such as

wireless communications, which did not exist at the time that the first declaration

was written for Riverbend Highlands.” Defendants further alleged that the

construction of the Tower did not change the residential nature of the community, is

not an operating business, and does not generate noise or traffic: “It is simply an

unmanned utility tower that transmits wireless signals and data for cellular

telephones and other mobile devices.” Defendants alleged federal law embodies and

promotes the public policy of providing wireless telecommunication services.3

Defendants argued that Plaintiffs’ claims were based only upon the aesthetics of the

Tower.4

All parties moved for judgment on the pleadings. After a hearing, the trial

court entered an order on 18 October 2016 granting in part judgment on the pleadings

in favor of Plaintiffs and declaring the March 2016 Amendment to be unreasonable

3 Although North Carolina General Statute § 160A-400.50 applies only to municipalities, Defendant

APC Towers notes the public policy to provide wireless telecommunications service throughout the

State to ensure “reliable wireless service to the public, government agencies, and first responders, with

the intention of furthering the public safety and general welfare.” See N.C. Gen. Stat. § 160A-400.50(a)

(2017).

4 Defendants summarized Plaintiffs’ lawsuit as a “NIMBY” claim. “NIMBY” is an acronym for “not in

my backyard,” and it is defined as “opposition to the locating of something considered undesirable

(such as a prison or incinerator) in one’s neighborhood.” Merriam-Webster, https://www.merriam-

webster.com/dictionary/NIMBY (last visited Apr. 6, 2020).

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as a matter of law because under the language of the March 2016 Amendment, the

developer had “carte blanc [sic] ability to remove the very essence and nature of the

Subdivision from any lot, and to substantially interfere with the Landowner’s actual

residential use of a lot.” The trial court noted that under the March 2016

Amendment, a “Developer could grant a utility lease over landowner’s house.” But

the trial court denied judgment on the pleadings as to whether the “construction of a

wireless communication tower on a lot is in violation of the valid Declarations” under

Armstrong v. Ledges Homeowners Ass’n, 360 N.C. 547, 633 S.E.2d 78 (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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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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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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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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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, 633 S.E.2d 78.

In Armstrong, our Supreme Court considered “to what extent the homeowners’

association may amend a declaration of restrictive covenants.” Id. at 548, 633 S.E.2d

at 81 (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, 633 S.E.2d at 81.

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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. Id. 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.” Id. The only shared obligation in the

covenants was payment of the utility bill for a lighted sign at the entrance. Id. (“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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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, 633 S.E.2d 78, 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. Id.

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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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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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,

633 S.E.2d 78. 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,

633 S.E.2d at 81).

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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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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Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

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,

633 S.E.2d at 81, the November 2016 Amendment was reasonable. Thus, the trial

court correctly granted Defendants’ motions for summary judgment, denied

Plaintiffs’ motion for summary judgment, and dismissed Plaintiffs’ claims.

IV. Conclusion

Defendant Vista had the authority to amend the declaration. Because the

November 2016 Amendment was reasonable, the trial court did not err in granting

summary judgment in favor of Defendants and denying Plaintiffs’ motion for

summary judgment.

AFFIRMED.

Judges DILLON and YOUNG concur.

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