               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.

                                                -2-
           POOVEY V. VISTA NC LTD. P’SHIP

                      Opinion of the Court



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


                             -3-
                        POOVEY V. VISTA NC LTD. P’SHIP

                                   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


                                          -4-
                        POOVEY V. VISTA NC LTD. P’SHIP

                                  Opinion of the Court



             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.




                                         -5-
                            POOVEY V. VISTA NC LTD. P’SHIP

                                       Opinion of the Court



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.

                                               -6-
                             POOVEY V. VISTA NC LTD. P’SHIP

                                         Opinion of the Court



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).

                                                  -7-
                        POOVEY V. VISTA NC LTD. P’SHIP

                                   Opinion of the Court



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,


                                          -8-
                          POOVEY V. VISTA NC LTD. P’SHIP

                                     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.

                                            -9-
                         POOVEY V. VISTA NC LTD. P’SHIP

                                       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



                                              - 10 -
                        POOVEY V. VISTA NC LTD. P’SHIP

                                  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



                                         - 11 -
                         POOVEY V. VISTA NC LTD. P’SHIP

                                   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, 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.




                                          - 12 -
                        POOVEY V. VISTA NC LTD. P’SHIP

                                   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. 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


                                          - 13 -
                        POOVEY V. VISTA NC LTD. P’SHIP

                                  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, 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,



                                         - 14 -
                        POOVEY V. VISTA NC LTD. P’SHIP

                                  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


                                         - 15 -
                         POOVEY V. VISTA NC LTD. P’SHIP

                                   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,

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.



                                          - 16 -
                        POOVEY V. VISTA NC LTD. P’SHIP

                                 Opinion of the Court



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




                                        - 17 -
                         POOVEY V. VISTA NC LTD. P’SHIP

                                   Opinion of the Court



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



                                          - 18 -
                         POOVEY V. VISTA NC LTD. P’SHIP

                                   Opinion of the Court



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



                                          - 19 -
                            POOVEY V. VISTA NC LTD. P’SHIP

                                        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


6Some 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.



                                               - 20 -
                           POOVEY V. VISTA NC LTD. P’SHIP

                                       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.”

                                              - 21 -
                        POOVEY V. VISTA NC LTD. P’SHIP

                                   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



                                          - 22 -
                         POOVEY V. VISTA NC LTD. P’SHIP

                                   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.




                                          - 23 -
