Appeals Court Finds In Favor Of Association On Arb Non-compliance

A North Carolina Appeals Court recently upheld a decision of the lower Court that held an owner who failed to follow Board-approved architectural plans liable for fines and attorneys fees of the Association. Ultimately, the Court granted an injuction for the unapproved pool house and deck to be removed.

Initially, the lot owner submitted plans for a pool and deck to be added to his backyard. The Board, acting as the ARB, determined that there were some issues with his proposal that needed to be altered. By this time, the owner had already poured a foundation for the project.

After a meeting with the Board, an agreement was reached regarding the remaining construction, which included a 10’ x 14’ pool house. The owner then went to the city requesting a permit to build a 10’ x 42’ pool house, in violation of the Declaration, which stated that no detached structure could be larger than 320 square feet.

The owner sued the Association, stating that the Declaration could not prevent him from constructing the larger pool house on his lot, because the city permitted such a structure. The Association filed a counterclaim for declaratory judgment and injunctive relief to remove the structure.

The owner argued, among other things, that a disapproval of his request was illegal because the Association never appointed an ARB as provided for in the governing documents.

The trial court found the central issue to be that the owner never had the larger structure approved by the Association, which was required by the governing documents of the Association and by statute.

The appeals court affirmed the decision of the trial court.

Bodine v. Harris Village Property Owners Association, Inc., No. COA09-1458, N.C. App. Ct., September 7, 2010

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