THIS OPINION
HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN
ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
William Walker
& Terri Walker, Appellants,
v.
Sandy Pointe
Homeowners Association, Inc., Toby Britt, Don Wafer and Joey Holbert, Respondents.
Appeal From Anderson County
Ellis B. Drew, Jr., Master-In-Equity
Unpublished Opinion No. 2010-UP-354
Heard June 8, 2010 Filed July 12, 2010
AFFIRMED
Randall Scott Hiller, of Greenville, for Appellants.
Stephen D. Baggett, of Greenwood, for Respondents.
PER CURIAM: William and Terri Walker appeal the trial court's
ruling upholding the Sandy Pointe Architectural Committee's (Committee)
rejection of the location they submitted for the building of their house. We
affirm.
FACTS/PROCEDURAL HISTORY
The
Walkers purchased a lake-front lot in the Sandy Pointe subdivision on December
20, 1999. The Walkers' lot is flat at first, rolls down to a small terrace,
and then drops sharply. The Sandy Pointe restrictive covenants (Covenants)
require homeowners to submit plans for improvements to the Committee prior to construction.
The Walkers printed from the internet a plan for a house called the Bagwell and
submitted it to the Committee. On September 26, 2001, the Committee sent the
Walkers a memorandum stating the preliminary house plan was approved in
principle. It noted final approval was contingent upon further review of
submitted detailed plans and specifications. It reminded the Walkers to
include in their submission of final plans "all necessary specifications,
drawings, landscaping plans, etc., according to Sandy Pointe covenants and
bylaws." The Walkers submitted their application for their house in
December 2005. The proposed location of the house was 88 feet from the road.
The Covenants require a minimum set-back of 40 feet.
On
December 13, 2005, Committee member Tommy Britt informed Mr. Walker by phone
that the Committee was turning down the plans because of the proposed location
of the house. Without consulting the Walkers, their builder contacted the
members of the Committee and proposed moving the house back an additional 25
feet rather than 40 feet as desired by the Committee. The members of the
Committee advised the builder to place stakes showing the revised location.
The
Committee formally gave written notice that it had disapproved the Walkers'
plans in a letter from its attorney dated January 11, 2006. The attorney noted
that while the builder had advised the Committee that he would move the house
back some 26 feet, no revised plans had been submitted in accordance with the
Covenants.
In a
letter dated January 17, 2006, the Walkers' attorney responded that the Walkers
had at all times maintained the original proposed location was appropriate and
any other location was unacceptable. He stated the Walkers intended to move
forward with construction of the house at that original location. He advised
that he would accept service if the Committee sought injunctive relief. The
Sandy Pointe Homeowners' Association (SPHA) and the Committee sent a letter to
the homeowners explaining the situation and asking the owners to vote on
whether the SPHA should pursue litigation in this matter. Although the
majority of the homeowners voted in favor of litigation, the Board of the SPHA
did not file a complaint. Instead, the Walkers brought this action seeking a declaratory
judgment ordering the Committee to approve and issue a permit for the
construction of their house and for damages arising from the delay in the
construction of the house.
The
trial court concluded a reasonable basis existed for the Committee's exercise
of judgment and the decision of the Committee was not arbitrary and bore a
sufficient relation to Sandy Pointe's general plan of development. In
addition, the court rejected the Walkers' argument that the Committee was not
properly appointed as provided by the Covenants and by-laws of the SPHA. The
Walkers filed a motion to reconsider, which the trial court denied. This
appeal followed.
STANDARD OF REVIEW
A
declaratory judgment action is neither legal nor equitable, but is determined
by the nature of the underlying issue. Felts v. Richland County, 303
S.C. 354, 356, 400 S.E.2d 781, 782 (1991). An action to enforce restrictive
covenants is an action in equity. Buffington v. T.O.E. Enters., 383
S.C. 388, 393, 680 S.E.2d 289, 291 (2009). On appeal from an equitable action,
an appellate court may find facts in accordance with its own view of the
evidence. Townes Assocs. v. City of Greenville, 266 S.C. 81, 86, 221
S.E.2d 773, 775 (1976). While this standard permits a broad scope of review,
an appellate court will not disregard the findings of the trial court, which
saw and heard the witnesses and was in a better position to evaluate their
credibility. Tiger, Inc. v. Fisher Agro, Inc., 301 S.C. 229, 237, 391
S.E.2d 538, 543 (1989).
LAW/ANALYSIS
A.
Authority of Committee
The
Walkers assert the trial court erred in holding the Covenants provided the
Committee with the authority to reject the proposed location of their house. We
disagree.
A
restrictive covenant is a voluntary contract between the parties. Cedar
Cove Homeowners Ass'n, Inc. v. DiPietro, 368 S.C. 254, 261, 628 S.E.2d 284,
287 (Ct. App. 2006). Restrictions on the use of property will be strictly construed
with all doubts resolved in favor of the free use of the property; however the
rule of strict construction should not be used to defeat the plain and obvious
purpose of the restrictive covenants. Taylor v. Lindsey, 332 S.C. 1, 4,
498 S.E.2d 862, 864 (1998). The language of a restrictive covenant is to be
construed according to the plain and ordinary meaning attributed to it at the
time of execution. Taylor, 332 S.C. at 4, 498 S.E.2d at 863.
The
Covenants provide:
No
improvements shall be erected, placed, altered, or changed on any lot in the
subdivision until and unless the building plans, specifications and plot plan
showing the proposed type of constructions, exterior design, and location of
such improvement have been approved in writing by the Architectural Committee
as to conformity and harmony with external design and consistence of plan with
existing improvements on the other lots in the subdivision and as to the
location of the structure with respect to topography and finished ground
elevation. . . .
The
most applicable definition of topography is "the configuration of a
surface including its relief and the position of its natural and man-made
features . . . ." Merriam-Webster's Collegiate Dictionary 1244
(10th ed. 1993). Thus, the Covenants give the Committee the right to approve
the location of a house with respect to the configuration of the land and
position of natural and man-made features. We find this provision grants the
Committee authority over where on a lot a house should be located.
B.
Exercise of Authority
The
Walkers contend the Committee did not properly exercise its authority. We
disagree.
When
a covenant provides an architectural review board with broad authority for
approval of improvements, the architectural review board's discretion is
constrained only by reasonableness and good faith. River Hills Prop. Owners
Ass'n, Inc. v. Amato, 326 S.C. 255, 259, 487 S.E.2d 179, 181 (1997). The
courts will uphold an architectural review board's rejection of a homeowner's
improvements based on aesthetic considerations when the board's decision is not
arbitrary but bears a sufficient relation to the subdivision's general plan of
development. Sea Pines Plantation Co. v. Wells, 294 S.C. 266, 271, 363
S.E.2d 891, 894 (1987).
In Palmetto
Dunes Resort v. Brown, 287 S.C. 1, 2, 336 S.E.2d 15, 16 (Ct. App. 1985),
the covenant granted the architectural review board the discretion to
disapprove plans for "purely aesthetic considerations." The
architectural review board denied approval of house plans because the garage
overpowered the house. Id. at 7, 336 S.E.2d at 19. This court held the
architectural review board's reasons for disapproval must bear a reasonable
relation to the other buildings or general plan of development and the board had
a right to disapprove plans that would mar the general appearance of the
subdivision and thus diminish the overall quality of the development. Id. at 8, 336 S.E.2d at 19-20.
The
Committee disapproved the Walkers' plans because the location of the house was
too close to the road in comparison to the other houses on that side of the
road. The other houses on that side of the road are more in alignment with the
lake line of the Army Corp of Engineers than the road. Britt stated that in
the Walkers' proposed location, the house would have been "way out"
in front of the other houses and would have been a "sore thumb." Joel
Herbert, another Committee member, testified that at the proposed location, the
house would have "just stuck out." The neighboring homeowners would
have been looking at the back of the Walkers' house from the front of theirs.
Britt explained he believed the Committee was charged with trying to balance
existing homes and where they were located in reference to the other homes
around them. He acknowledged all of the lots in the subdivision were
different.
The
Walkers' builder testified he explained to the Committee it would be extremely
difficult to build the Walkers' house 40 feet further back because of the steep
drop-off of the land and the cost would probably be prohibitive. The builder
testified moving the house back 25 feet would cost an additional $25,000.
However, he did not remember if he told the members about this cost. He stated
he would not build the house at the Committee's proposed location because the
slope would be too great.
Committee
members Joel Herbert and Donald Wafer both testified they would have accepted
the compromise location proposed by the Walkers' builder, but the Walkers never
filed an application for that location. Although he acknowledged that moving
the house back would increase the building cost, Britt stated the Committee was
never informed what that cost would be. Britt stated that if the Walkers moved
the house back an additional 40 feet as proposed by the Committee, it would not
be affected by the drop-off. He explained that is why the Committee proposed
moving the house back only 40 feet rather than 75 feet, which would put the
Walkers' house in a better alignment with the other houses. Although the
Walkers' builder testified that he would not build the particular house chosen
by the Walkers at the Committee's selected location, other houses on that side
have been built on a slope. Many of them have basements.
We
find the Committee's decision to deny the Walkers' application was not
arbitrary and bore a sufficient relation to the subdivision's general plan of
development. Although the Covenants dictate a minimum set-back of 40 feet, the
Committee in its discretion can require a house to be constructed further back
than that. An architectural review board's disapproval does not have to be
grounded upon a violation of a specific restrictive covenant. River Hills
Prop. Owners Ass'n, Inc., 326 S.C. at 259, 487 S.E.2d at 181. Thus, we
find no error in the trial court upholding the Committee's decision rejecting
the Walkers' proposed location for their house.
C.
Notice of Committee's decision
The
Walkers' assert the Committee failed to provide them with written notice of the
denial of their application in a timely manner. The Covenants provide:
Application
for approval as required herein shall be made to the Architectural Committee
and at the time of making such application, the building plans, specifications,
plot plans, and landscaping plans shall be submitted in duplicate. One copy of
such plans and specifications will be retained by the committee and the other
copy will be returned to the applicant with approval or disapproval plainly
noted thereon. In the event that the Architectural Committee fails to approve
or disapprove such plans within thirty (30) days after they have been submitted
to it, or if no suit to enjoin the erection or alteration of such building or
improvement has been commenced before such erection or alteration is
substantially completed, approval of the Architectural Committee will be
conclusively presumed and this covenant will be deemed to have been fully
complied with.
The
Walkers submitted their application at the beginning of December 2005. Britt
called Mr. Walker on December 13, 2005 to inform him the Committee had rejected
his application due to the proposed location of the house. The Walkers'
builder soon thereafter contacted the members of the Committee to propose the
alternate location. In a letter dated January 11, 2006, the Committee's
attorney gave the Walkers official written notice that the Committee had
disapproved the plans. The attorney stated one basis for the disapproval was
the Walkers had failed to provide two sets of plans as required by the
Covenants.
The
Covenants provide the Committee should note its decision on the second set of
plans submitted with an application. They require no other written notice.
Britt testified the Walkers submitted only one copy of plans. From the cover
sheet, it appears they only submitted one copy of the elevation and house plans
for "Bagwell Place," as well as only one copy of the landscaping plan
and subdivision map in their application. Mr. Walker acknowledged he had only
submitted one copy of the landscaping plan but maintained he had submitted two
copies of the house plan.[1]
We find the Walkers failed to submit two copies of all of the plans in their
application as required by the Covenants. As the Walkers failed to provide the
Committee with two copies, the Committee was unable to provide them with its
decision noted on the second copy of plans as provided by the Covenants. It is
undisputed the Committee provided the Walkers verbal notice of its decision
within thirty days of the application and also provided written notice through
its attorney. We find no error on this issue.
D.
Appointment of Members of the Committee
The
Walkers assert the trial court erred in determining that general compliance was
all that was required in the appointment of the members of the Committee. The
Covenants provide:
The
Architectural Committee of said subdivision shall initially be composed of
David Porter, Robert W. Dorsey and Joel Herbert and one other lot owner chosen
by the above named. In the event of a vacancy on the Architectural Committee,
or the failure or inability of any member to act, the vacancy shall be filled
by majority vote of the remaining members on said committee.
At
the time the Walkers submitted their application to the Committee, the members
of the Committee were Joel Herbert, Toby Britt, Donald Wafer, and T.J. Fusco.
Herbert was one of the original members of the Committee and was named to the
Committee in the Covenants. Wafer testified he and Britt volunteered at the
annual meeting to serve on the Committee. There is no testimony of when Fusco
joined the Committee. The Covenants do not prescribe the technical manner in
which the remaining members of the Committee were to vote on new members.
There is no evidence that the remaining members of the Committee did not vote
for Wafer, Britt, and Fusco when they joined the Committee. We find no basis
for reversal on this issue. See Weaver v. Recreation Dist., 328
S.C. 83, 88, 492 S.E.2d 79, 82 (1997) (noting an appealed order comes to the
appellate court with a presumption of correctness and the burden is on
appellant to demonstrate reversible error).
E.
Failure to Provide Guidelines
The
Walkers take issue with the Committee's failure to provide the homeowners with
guidelines to be used in considering applications. In the spring of 2001, the
members of the SPHA voted to amend the Covenants to include a provision that
the homeowners would be provided with a Statement of Understanding listing the
guidelines used by the Committee when reviewing plans. The document was to
"include the requirements necessary to ensure the conformity and harmony
of homes in the neighborhood." The Committee, however, has never prepared
or distributed the guidelines. The Walkers have offered no evidence the
Committee's review of their application would have been any different if the
Committee had created the guidelines. We find no reversible error on this
issue. See McCall v. Finley, 294 S.C. 1, 4, 362 S.E.2d 26, 28
(Ct. App. 1987) ("[W]hatever doesn't make any difference, doesn't
matter."). We find no reversible error.
F.
Vote of Homeowners in Favor of Litigation
The
Walkers also contend the SPHA acted improperly in sending what they contend to
be a biased ballot asking the homeowners whether they supported bringing an
action against the Walkers. The vote by the members was advisory only. The
By-Laws of the SPHA authorize the Board of the SPHA "to bring proceedings
on behalf of or against the Owners concerning Sandy Pointe, and to defend
proceedings brought against Sandy Pointe." The SPHA was authorized to
defend this action without a vote by the homeowners. Thus, even if the vote
were somehow improper, it is irrelevant to our decision. See Finley,
294 S.C. at 4, 362 S.E.2d at 28 ("[W]hatever doesn't make any difference,
doesn't matter."). We find no reversible error.
G.
Election of Board of Directors
The
Walkers assert "None of the Defendants could testify that there was a duly
elected board of directors . . . ." They fail, however, to direct this
court's attention to any evidence in the record that would support a finding
that the SPHA Board of Directors was not duly-elected. See Weaver,
328 S.C. at 88, 492 S.E.2d at 82 (noting an appealed order comes to the
appellate court with a presumption of correctness and the burden is on
appellant to demonstrate reversible error); McCall v. IKON, 380 S.C.
649, 660, 670 S.E.2d 695, 701 (Ct. App. 2008) (stating the appellate court is
"obliged to reverse when error is called to our attention, but we are not
in the business of figuring out on our own whether error exists").
Accordingly, we find the Walkers failed to meet their burden of demonstrating
reversible error.
H.
Record Keeping
The
Walkers claim the HOA and Committee failed to maintain adequate records. Even
if this assertion is true, it would make no difference to the court's
decision. See Finley, 294 S.C. at 4, 362 S.E.2d at 28 ("[W]hatever
doesn't make any difference, doesn't matter.").
CONCLUSION
For the
above stated reasons, the order of the trial court is
AFFIRMED.
HUFF,
SHORT, and WILLIAMS, JJ., concur.
[1] Mr. Walker may have been including the plans he
had submitted in 2001 for the "Bagwell" home, which he had printed
off the internet. The plan he submitted in 2005 was for "Bagwell
Place," which was a revision of the house the Walkers had originally
submitted to the Committee.