Smith v. Association for Retarded Citizens for Housing Development Services, Inc.

331 S.E.2d 324, 75 N.C. App. 435, 1985 N.C. App. LEXIS 3701
CourtCourt of Appeals of North Carolina
DecidedJuly 2, 1985
DocketNo. 843SC1075
StatusPublished
Cited by5 cases

This text of 331 S.E.2d 324 (Smith v. Association for Retarded Citizens for Housing Development Services, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Association for Retarded Citizens for Housing Development Services, Inc., 331 S.E.2d 324, 75 N.C. App. 435, 1985 N.C. App. LEXIS 3701 (N.C. Ct. App. 1985).

Opinion

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 [439]*439419, 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 objective 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 [440]*440the 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 [441]*441in 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 the dwelling incorporates institutional design features such as a commercial lock system, five exterior doors 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.

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Smith v. ASSOCIATION FOR RETARDED CITIZENS FOR HOUSING DEVELOPMENT SERV.
331 S.E.2d 324 (Court of Appeals of North Carolina, 1985)

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Bluebook (online)
331 S.E.2d 324, 75 N.C. App. 435, 1985 N.C. App. LEXIS 3701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-association-for-retarded-citizens-for-housing-development-ncctapp-1985.