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2010-UP-354 - Walker v. Sandy Pointe Homeowners

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Unpublished Opinion No.  2010-UP-354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.