{ "id": 9080278, "name": "WILLIAM J. WISE and LYNN P. WISE, Plaintiffs v. HARRINGTON GROVE COMMUNITY ASSOCIATION, INC., and TOM FITZGERALD, TAMARA JAMES, DAVE BECHERER, STEWART JOSLIN, BILL SCHULTZ, and MIKE DALTON, in their official capacities as members of the Harrington Grove Community Association Board of Directors, Defendants", "name_abbreviation": "Wise v. Harrington Grove Community Ass'n", "decision_date": "2002-07-16", "docket_number": "No. COA01-661", "first_page": "344", "last_page": "356", "citations": [ { "type": "official", "cite": "151 N.C. App. 344" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "291 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "621", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "306 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567694 ], "year": 1982, "pin_cites": [ { "page": "137", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0132-01" ] }, { "cite": "408 S.E.2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "731" } ], "opinion_index": 0 }, { "cite": "330 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2510111 ], "year": 1991, "pin_cites": [ { "page": "97-98" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0093-01" ] }, { "cite": "495 S.E.2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "347 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551134 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/347/0412-01" ] }, { "cite": "423 S.E.2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "80", "parenthetical": "citing N.C.R. App. P. 10(a)" } ], "opinion_index": 0 }, { "cite": "332 N.C. 544", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2503217 ], "year": 1992, "pin_cites": [ { "page": "554", "parenthetical": "citing N.C.R. App. P. 10(a)" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0544-01" ] }, { "cite": "22 Campbell L. Rev. 1", "category": "journals:journal", "reporter": "Campbell L. Rev.", "year": 1999, "pin_cites": [ { "page": "51" } ], "opinion_index": 0 }, { "cite": "552 S.E.2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "applying G.S. \u00a7 47F-3-102(4) retroactively to homeowners' associations formed prior to the PCA's effective date of 1 January 1999" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 159", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11355165 ], "year": 2001, "pin_cites": [ { "parenthetical": "applying G.S. \u00a7 47F-3-102(4) retroactively to homeowners' associations formed prior to the PCA's effective date of 1 January 1999" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0159-01" ] }, { "cite": "1998 N.C. Sess. Laws 674", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 } ], "analysis": { "cardinality": 869, "char_count": 27227, "ocr_confidence": 0.77, "pagerank": { "raw": 4.5046715916883656e-08, "percentile": 0.2819681765230328 }, "sha256": "91bfaba7e0632b1631bee29f54a641688a081c08a7f3cf7e3a4e457077d3c6a1", "simhash": "1:cbf99dc7786aa8cd", "word_count": 4245 }, "last_updated": "2023-07-14T16:47:19.620477+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McGEE concurs.", "Judge WYNN dissents." ], "parties": [ "WILLIAM J. WISE and LYNN P. WISE, Plaintiffs v. HARRINGTON GROVE COMMUNITY ASSOCIATION, INC., and TOM FITZGERALD, TAMARA JAMES, DAVE BECHERER, STEWART JOSLIN, BILL SCHULTZ, and MIKE DALTON, in their official capacities as members of the Harrington Grove Community Association Board of Directors, Defendants" ], "opinions": [ { "text": "TYSON, Judge.\nWilliam J. Wise and Lynn P. Wise (\u201cplaintiffs\u201d) appeal from a declaratory judgment entered in favor of Harrington Grove Community Association, Inc. (\u201cAssociation\u201d). We affirm the trial court\u2019s judgment.\nI. Facts\nPlaintiffs purchased their home in the spring of 1999, automatically became members of the Association by virtue of their status as homeowners in the Harrington Grove Subdivision (\u201cSubdivision\u201d), and became subject to the recorded \u201cDeclaration of Covenants, Conditions, and Restrictions\u201d (\u201cDeclaration\u201d) of the Subdivision. Article VII, Section 2(a) of the Declaration requires prior written approval from the Association\u2019s Architectural Committee (\u201cCommittee\u201d) before any \u201cbuilding, fence, or other structure\u201d is \u201cerected, placed, or altered\u201d on a homeowner\u2019s lot.\nPlaintiffs constructed a retaining wall around the perimeter of their back yard without obtaining prior written approval from the Committee. The Association requested that plaintiffs file an application for the retaining wall post facto. Plaintiffs complied. After review, the Committee denied plaintiffs\u2019 application to approve the previously constructed retaining wall.\nPlaintiffs were provided written notice of the Association\u2019s Board of Directors\u2019 intention to fine plaintiffs $150.00 for their violation of the Declaration. Prior to the imposition of the fine, the Association afforded plaintiffs notice and an opportunity to be heard on the matter. Plaintiffs presented their case through counsel, and the Committee presented its case at a hearing conducted on 7 July 1999. Following the hearing, the Association issued a written decision that imposed a one-time fine of $150.00 for plaintiffs\u2019 failure to obtain written approval prior to constructing the retaining wall.\nPlaintiffs filed an amended complaint on 26 May 2000 against defendants seeking: (1) a declaratory judgment that the Association\u2019s approval of plaintiffs\u2019 swimming pool application on 2 March 1999 constituted approval of a wall, (2) a declaratory judgment that the Association\u2019s attempt to levy a fine was ultra vires and void, (3) injunctive relief, (4) unfair and deceptive trade practices, and (5) damages. Defendants answered on 14 June 2000. Plaintiffs moved for partial summary judgment on 23 February 2001. Prior to hearing, the parties entered into a settlement agreement that resolved all issues except plaintiffs\u2019 declaratory judgment claim.\nThe trial court conducted a hearing on 5 March 2001. On 25 March 2001, the trial court: (1) denied plaintiffs\u2019 motion for partial summary judgment, (2) denied plaintiffs\u2019 request for injunctive relief, and (3) declared that the Association had authority, pursuant to the North Carolina Planned Community Act (\u201cPCA\u201d), to levy a fine against plaintiffs. Plaintiffs appeal.\nII. Issue\nThe sole issue presented is whether G.S. \u00a7 47F-3-102(12) of the PCA grants the Harrington Grove Community Association, formed prior to 1 January 1999, authority to charge reasonable fines against its members without the Declaration expressly providing for such power.\nPlaintiffs contend that the \u201cAssociation\u2019s Articles expressly provide that its power is strictly limited to those [powers] conferred in the Declaration.\u201d They argue that the Declaration does not contain any power to impose fines, and G.S. \u00a7 47F-3-102(12) cannot automatically confer such power on the Association, unless \u201cthe Declaration is amended to allow for the Association to exert power against homeowners beyond what is already provided in the Declaration.\u201d Plaintiffs claim that the \u201cplain meaning of [G.S.] \u00a7 47F-3-102(12) is obvious: the association may impose a fine upon reasonable notice to the homeowner if the declaration or articles of incorporation so allow.\" (Emphasis supplied).\nIII. North Carolina Planned Community Act\nThe PCA is codified at Chapter 47F of the North Carolina General Statutes. G.S. 47F-1-102(a) states that \u201cThis Chapter applies to all planned communities within this State except as provided in subsection (b) of this section.\u201d N.C. Gen. Stat. \u00a7 47F-1-102(a) (2001). Subsection (b) excludes from the PCA planned communities which contain twenty or fewer lots and planned communities in which all lots are exclusively restricted for non-residential purposes, \u201cunless the declaration provides or is amended to provide that this Chapter does apply to that planned community.\u201d N.C. Gen. Stat. \u00a7 47F-1-102 (b)(l)-(2) (2001).\nIt is undisputed that Harrington Grove Subdivision: (1) contains more than twenty lots, (2) contains lots which are not all restricted to non-residential purposes, (3) is located within the State of North Carolina, (4) that the Association was incorporated on 29 April 1987, and (5) the Declaration was enacted on 11 May 1987 and filed on 17 May 1987. We hold that the Subdivision is a planned community as defined by the PCA.\nA. PCA\u2019s Applicability\n1. Associations Formed After 1 January 1999\nThe PCA is generally applicable prospectively from 1 January 1999. The official North Carolina Comment (\u201cComment\u201d) to G.S. \u00a7 47F-1-102, \u201cApplicability\u201d, states that \u201cThe Act is effective January 1, 1999 and applies in its entirety to all planned communities created on or after that date . . . .\u201d (Emphasis supplied). The Comment reiterates Section 3 of the Session Law, enacting the PCA: \u201cThis act becomes effective January 1, 1999 and applies to planned communities created on or after that date.\u201d North Carolina Planned Community Act of October 15, 1998, ch. 199, sec. 3, 1998 N.C. Sess. Laws 674-692, 691.\nIn addition to the PCA applying to all planned communities formed after 1 January 1999, the PCA limits associations\u2019 flexibility to vary or modify the PCA\u2019s applicability. The PCA provides that: \u201cExcept as specifically provided in specific sections of this Chapter, the provisions of this Chapter may not be varied by the declaration or bylaws.\u201d N.C. Gen. Stat. \u00a7 47F-l-104(a) (2001). \u201cTo be sure, there are many central statutory provisions that can not [sic] be varied by the declaration or bylaws; however, there are also numerous instances throughout the act where the declaration or bylaws can alter significant provisions of the PCA.\u201d James A. Webster, Jr., Webster\u2019s Real Estate Law in North Carolina \u00a7 30A-28, at 1243 (Patrick K. Hetrick & James B. McLaughlin, Jr. eds., 5th ed. 1999).\nArticle 3 of the PCA entitled \u201cManagement of Planned Community\u201d contains a section entitled \u201cPowers of owners\u2019 association.\u201d G.S. \u00a7 47F-3-102 lists seventeen \u201cpowers\u201d the Act confers upon \u201cowners\u2019 associations.\u201d N.C. Gen. Stat. \u00a7 47F-3-102(1)-(17) (2001). All seventeen powers apply to associations formed on or after 1 January 1999. See Comment to N.C. Gen. Stat. \u00a7 47F-1-102.\n2. Associations Formed Before 1 January 1999\nThe PCA also provides a procedure that allows associations formed prior to 1 January 1999 to \u201copt in\u201d and adopt the entire Act. N.C. Gen. Stat. \u00a7 47F-l-102(d) (2001) provides that:\nAny planned community created prior to the effective date of this Chapter may elect to make the provisions of this Chapter applicable to it by amending its declaration to provide that this Chapter shall apply to that planned community. The amendment may be made by affirmative vote or written agreement signed by lot owners of lots to which at least sixty-seven percent (67%) percent of the votes in the association are allocated or any smaller majority the declaration specifies. To the extent the procedures and requirements for amendment in the declaration conflict with the provisions of this subsection, this subsection shall control with respect to any amendment to provide that this Chapter applies to that planned community.\nCertain provisions of the PCA apply retroactively. The Session Law enacting the PCA and the Comment to the codified version of the PCA states that certain provisions apply to associations formed prior to 1 January 1999. At bar, we focus only on the powers contained in section 47F-3-102.\nThe official transcript of the Session Law enacted by the North Carolina General Assembly includes sections 2 and 3, which are not contained in the codified version of the Session Law found in the North Carolina General Statutes. Section 3 of the Session Law states: \u201cG.S. 47E-3-102(l) through (6) and (11) through (17), G.S. 47E-3-107(a)(b), and (c), G.S. 47E-3-115, and G.S. 47E-3-116 as enacted by Section 1 of this act apply to planned communities created prior to the effective date. . . .\u201d North Carolina Planned Community Act of October 15, 1998, ch. 199, sec. 3, 1998 N.C. Sess. Laws at 691.\nSection 2 of the Session Law states: \u201cThe Revisor of Statutes shall cause to be printed with this act all relevant portions of the official comments to the North Carolina Planned Community Act and all explanatory comments of the drafters of this act, as the Revisor deems appropriate.\u201d North Carolina Planned Community Act of October 15, 1998, ch. 199, sec. 2, 1998 N.C. Sess. Laws at 691.\nChapter 47E as written in the Session Law was later codified as Chapter 47F in the North Carolina General Statutes. The Comment to G.S. \u00a7 47F-1-102 states that \u201cG.S. 47F-3-102(l) through (6) and (11) through (17), G.S. 47F-3-107(a)(b) and (c), G.S. 47F-3-115 and G.S. 47F-3-116 also apply to planned communities created prior to January 1, 1999.\u201d (Emphasis supplied). N.C. Gen. Stat. \u00a7 47F-102, North Carolina Comment. The Comment to G.S. \u00a7 47F-3-102 also states that: \u201cSubdivisions (1) through (6) and (11) through (17) apply to planned communities formed prior to January 1, 1999.\u201d N.C. Gen. Stat. \u00a7 47F-3-102, North Carolina Comment. See also Creek Pointe Homeowner\u2019s Ass\u2019n, Inc. v. Happ, 146 N.C. App. 159, 552 S.E.2d 220 (2001) (applying G.S. \u00a7 47F-3-102(4) retroactively to homeowners\u2019 associations formed prior to the PCA\u2019s effective date of 1 January 1999).\nWe hold that the plain language of the Session Law enacting the PCA states that the power contained in section 47F-3-102(12) applies to homeowner associations formed prior to 1 January 1999.\nB. N.C. Gen. Stat.. \u00a7 47F-3-107.1\nG.S. \u00a7 47F-3-107.1, \u201cProcedures for fines and suspension of planned community privileges or services,\u201d provides procedures by which an association may impose fines or suspensions upon homeowners within an association.\nUnless a specific procedure for the imposition of fines or suspension of planned community privileges or services is provided for in the declaration, a hearing shall be held before an adjudicatory panel appointed by the executive board to determine if anv lot owner should be fined or if planned community privileges or services should be suspended pursuant to the powers granted to the association in G.S. 47F-3-102Q1) and (12). If the executive board fails to appoint an adjudicatory panel to hear such matters, hearings under this section shall be held before the executive board. The lot owner charged shall be given notice of the charge, opportunity to be heard and to present evidence, and notice of the decision. If it is decided that a fine should be imposed, a fine not to exceed one hundred fifty dollars ($150.00) may be imposed for the violation and without further hearing, for each day after the decision that the violation occurs. Such fines shall be assessments secured bv liens under G.S. 47F-3-116. If it is decided that a suspension of planned community privileges or services should be imposed, the suspension may be continued without further hearing until the violation or delinquency is cured.\nN.C. Gen. Stat. \u00a7 47F-3-107.1 (2001) (emphasis supplied).\nC. N.C. Gen. Stat. \u00a7 47F-3-102\nWhile G.S. \u00a7 47F-3-107.1 provides the procedure, G.S. \u00a7 47Fr3-102(12) grants associations power to fine or suspend privileges of homeowners within the association.\nSubject to the provisions of the articles of incorporation or the declaration and the declarant\u2019s rights therein, the association may:\n(12) After notice and an opportunity to be heard, impose reasonable fines or suspend privileges or services provided by the association (except rights of access to lots) for reasonable periods for violations of the declaration, bylaws, and rules and regulations of the association;\nN.C. Gen. Stat. \u00a7 47F-3-102(12) (emphasis supplied).\nIt is undisputed that the Association was created prior to 1 January 1999. The dispositive issue here is the meaning of the phrase \u201capply to planned communities created prior to the effective date . . . .\u201d used in Section 3 of the Session Law. Plaintiffs assert the provisions \u201cbecome available\u201d for a planned community to adopt by amendment to its declaration. If not adopted, the Association does not have the power to fine. The Association asserts that \u201cthe [PCA] allows the imposition of fines regardless of what is contained in a community association\u2019s declaration or by-laws.\u201d\nWe disagree with both interpretations. We hold that the plain language of section 47F-3-102 and the language of Section 2 and 3 of the certified transcript of the Session Laws grants specific powers to associations formed prior to 1 January 1999 \u201csubject to the provisions of the articles of incorporation or the declaration and the declarant\u2019s rights therein.\u201d\nG.S. \u00a7 47F-3-116(a) states that \u201cUnless the declaration otherwise provides, fees, charges, late fees, fines, interest and other charges imposed pursuant to G.S. 47F-3-102, 47F-3-107, 47F-3-107.1, and 47F-3-115 are enforceable as assessments under this section.\u201d N.C. Gen. Stat. \u00a7 47F-3-116(a) (2001) (emphasis supplied). The Association\u2019s Declaration is silent and does not provide \u201cotherwise\u201d regarding fines. \u201cSuch fines shall be assessments secured by liens under G.S. 47F-3-116.\u201d N.C. Gen. Stat. \u00a7 47F-3-107.1. Pursuant to the plain language of the PCA, fines imposed by section 47F-3-102(12) are \u201cassessments.\u201d\nThe PCA\u2019s grant of the power to fine contained in G.S. \u00a7 47F-3-102(12), by the statute\u2019s plain language, is not absolute. The power is \u201c[s]ubject to the provisions of the articles of incorporation or the declaration and the declarant\u2019s rights therein.\u201d We must determine whether there are provisions in the Association\u2019s Articles of Incorporation, or the Declaration and the Declarant\u2019s rights therein, that limits the Association\u2019s power to fine the Association\u2019s members as granted by the PCA. We have thoroughly reviewed the Association\u2019s Articles of Incorporation, Declaration and the Declarant\u2019s rights therein. We hold that no provision contained in those documents limits the Association\u2019s power to fine, which the North Carolina General Assembly granted to all community associations formed prior to 1 January 1999 by enacting the PCA.\nPlaintiffs interpret the plain language \u201csubject to\u201d essentially to mean that if the Association \u201c[did] not have the power in their Declaration or Articles to impose the fines at issue, the action of Defendants to do so was ultra vires and void.\u201d We disagree.\nPlaintiffs\u2019 and the dissent\u2019s reading of the phrase \u201csubject to\u201d is synonymous with the language the General Assembly used in section 47F-3-120: \u201cthe court may award reasonable attorneys\u2019 fees to the prevailing party if recovery of attorneys\u2019 fees is allowed in the declaration.\u2019\u2019 N.C. Gen. Stat. \u00a7 47F-3-120 (2001) (emphasis supplied). The phrase \u201csubject to\u201d is unambiguous, and its meaning is clear. The General Assembly did not grant the power to fine if \u201callowed in the declaration.\u201d \u201cSubject to\u201d cannot mean \u201cif allowed in the declaration.\u201d The dissent\u2019s exegesis of the phrase \u201csubject to\u201d renders the distinction between \u201csubject to\u201d and \u201cif allowed in the declaration\u201d non-existent.\n\u201cSubject to\u201d means that the Declaration and/or Articles of Incorporation can restrict or limit the power that the PCA grants to community associations created prior to 1 January 1999. Not allocating a power is different than limiting a power. The former is a condition precedent to receiving the power, and the latter limits the power already given. Plaintiffs\u2019 argument is overruled.\nD. The Association\u2019s Declaration and Articles\nArticle 111(a) of the Association\u2019s Articles of Incorporation states that to further the purposes of the Association it can \u201cexercise all of the powers and privileges and perform all of the duties and obligations of the Association as set forth in the Declaration.\u201d Plaintiff claims that this statement \u201cstrictly limits\u201d the Association\u2019s powers to what is contained in the Declaration. This provision of the Association\u2019s Articles of Incorporation is not written that restrictively. Two listed Association purposes are: (1) \u201cto provide for architectural control of the Lots within Harrington Grove;\u201d and (2) \u201cto promote the health, safety and welfare of the residents within Harrington Grove.\u201d The statutory power to fine plaintiffs for violating the Declaration by constructing a retaining wall without obtaining prior written approval promotes both stated purposes listed in the Articles of Incorporation.\nThe Declaration specifically provides for the power to charge assessments. Both annual and special assessments may be charged to the Association\u2019s members. The Declaration only limits the amount of the annual and special assessments. The Declaration is silent concerning the Association\u2019s ability to fine and assess its members for violating the Declaration.\nWhile the Declaration does not expressly provide for the power to fine, the PCA provides that additional power. We find no language in the Articles of Incorporation or the Declaration that limits or restricts the Association\u2019s power to fine, which is granted by the PCA.\nArticle VIII, Section 4 of the Declaration entitled \u201cEnforcement\u201d states that:\nThe Association or any Member shall have the right to enforce these covenants and restrictions by any proceeding at law or in equity against any person or persons violating or attempting to violate enforcement of these covenants against the land and to enforce any lien created by these covenants. Enforcement mav be to restrain violation or to recover damages resulting therefrom. (Emphasis supplied).\nThis provision in the Declaration grants the Association the power to enforce \u201cany lien created by these covenants.\u201d It also grants power to \u201cenforce these covenants and restrictions by any proceeding at law. \u201d It is undisputed that the plaintiffs violated the covenants. The PCA provides an additional power to the Association\u2019s arsenal of enforcement.\nThe dissent states that \u201cthe declarations specifically limit the remedy that the association may obtain against a homeowner.\u201d The dissent reads \u201cmay\u201d as \u201cmay only.\u201d The language of the Declaration is not that restrictive.\nThere is no requirement that an older planned community opt in to the PCA in order to receive the benefits of most of the powers conferred by that Act. Through the application of the powers section to pre-1999 planned communities, formerly impotent associations will soon discover that they are now strong. These reinvigorated associations will probably surprise homeowners when they start flexing their enforcement muscles.\nPatrick K. Hetrick, Of \u201cPrivate Governments\u201d and the Regulation of Neighborhoods: The North Carolina Planned Community Act, 22 Campbell L. Rev. 1, 51 (1999); See also Webster, \u00a7 30A-28, at 1261-1272 (discussing in detail the sweeping changes and the powers the PCA confers upon associations, including retroactivity of thirteen of the seventeen powers enumerated in the statute).\nThe Association is not prohibited by its Declaration or Articles of Incorporation from fining its members for violation of the Declaration. The PCA grants that power to the extent not prohibited by the Articles of Incorporation or the Declaration and the Declarant\u2019s rights therein.\nIV. Constitutional Argument\nAlternatively, plaintiffs attempt to argue that if the PCA allows the Association to \u201cimpose fines and liens upon homeowners . . . [the PCA] would violate fundamental constitutional principles protecting against the denial of due process and the impairment of property rights.\u201d Plaintiffs failed to preserve this issue for appellate review. \u201cThe scope of appellate review is limited to those issues presented by assignment of error set out in the record on appeal.\u201d State v. Thomas, 332 N.C. 544, 554, 423 S.E.2d 75, 80 (1992) (citing N.C.R. App. P. 10(a)), disapproved on other grounds, State v. Richmond, 347 N.C. 412, 495 S.E.2d 677 (1998); see also Koufman v. Koufman, 330 N.C. 93, 97-98, 408 S.E.2d 729, 731 (1991)). Plaintiffs did not assign any error in the record regarding unconstitutional impairment of property or contract rights. N.C.R. App. P. 10(a) (2002). The trial court did not make any finding or conclusion concerning this argument. State v. Cooke, 306 N.C. 132, 137, 291 S.E.2d 618, 621 (1982) (citations omitted) (constitutional questions not raised before the trial court will not ordinarily be considered on appeal). This issue is not properly preserved or presented for our consideration.\nV. Conclusion\nThe trial court correctly held that the PCA provides the Association with the power to impose reasonable fines against its members. We must give effect to the plain meaning of G.S. \u00a7 47F-3-102. There is nothing contained in the Association\u2019s Articles of Incorporation or Declaration which limits the powers contained in G.S. 47F-3-102(12).\nWe hold that the trial court properly applied the statutes to the facts of this case. The judgment of the trial court is affirmed.\nAffirmed.\nJudge McGEE concurs.\nJudge WYNN dissents.", "type": "majority", "author": "TYSON, Judge." }, { "text": "WYNN, Judge\ndissenting.\nHomeowners William J. Wise and his wife, Lynn P. Wise, argue that a 1998-enacted statute does not confer upon their 1987-created homeowner\u2019s association the authority to levy fines upon them where the declarations of that association only authorizes the restraint of the violation or the recovery of damages. I agree with the homeowners.\nThe issue on appeal is whether Chapter 47F subordinates the statutory authority granted by N. C. Gen. Stat. \u00a7 47F-3-102(12) to impose fines to the expressed declarations of an association that restricts the authority of the association to impose a fine. I would find that the declarations in this case prohibits the association to impose a fine against the homeowners.\nN.C. Gen. Stat. \u00a7 47F-3-102(12) which authorizes an association to impose fines against homeowners states that the association may:\n(12) [a]fter notice and an opportunity to be heard, impose reasonable fines or suspend privileges or services provided by the association (except rights of access to lots) for reasonable periods for violation of the declaration, bylaws, and rules and regulations of the association.\nHowever, the introductory language of N.C. Gen. Stat. \u00a7 47F-3-102 specifically states that the authority of an association to impose fines against homeowners under subsection (12) is:\nSubject to the provisions of the articles of incorporation or the declaration and the declarant\u2019s rights therein ....\n(emphasis added). The majority implies that there is ambiguity in the \u201csubject to\u201d language of Chapter 47F. However, not every legislative act requires judicial interpretation; for assuredly, our courts have recognized that when the meaning of a statute is clear and unambiguous, we do not engage in discussions of legislative intent. Rather, we accord the legislature the respect of following the plain meaning of its words. In my opinion there is no ambiguity in the \u201csubject to\u201d language of N.C. Gen. Stat. \u00a7 47F-3-102. The term \u201csubject to\u201d means that the provisions of the declarations control as between statute and the declarations. Thus, N.C. Gen. Stat. \u00a7 47F-3-102 subjects the applicability of subsection (12) to the provisions under the declarations of the association.\nIn the subject case, the powers of the homeowners\u2019 association are specified in its articles of incorporation, bylaws and declarations. Additional burdens, restrictions and obligations are imposed on the homeowners in their restrictive covenants.\nUnder the declarations, the homeowners\u2019 association is empowered to enforce covenants, such as the one in this case, by proceeding in law or equity against the homeowner. However, the declarations specifically limit the remedy that the association may obtain against a homeowner:\nEnforcement may be to restrain violation or to recover damages resulting therefrom.\nThus, the declarations limit the authority of the association to any remedy other than a restraint of the violation or damages. Moreover, the declarations expressly limit the power of the homeowners\u2019 asso- , ciation to \u201cexercise all of the powers and privileges and perform all of the duties and obligations of the Association as set forth in the Declaration.\u201d\nIn sum, there is no dispute that the homeowners in this case never amended their declarations to allow the imposition of a fine against them. To the contrary, their declarations limit the remedy for covenant violations to the restraint of the violation or damages. Since N.C. Gen. Stat. \u00a7 47F-3-102 respects the rights of homeowners to limit their exposure to fines by their homeowners association, I dissent from the majority opinion upholding the imposition of a fine against the Wises.\n. The majority opinion undertakes an extensive discussion on the applicability of G.S. \u00a7 47F-3-102(12) (2001) to an association created before the enactment of the Act. However, the answer to that query is found in the comments to N.C. Gen. Stat. \u00a7 47F-1-102:\nG.S. \u00a7 47F-3-102 . . . (11) through (17) . . . also apply to planned communities created prior to January 1, 1999.\nNothing more need be said on this issue.", "type": "dissent", "author": "WYNN, Judge" } ], "attorneys": [ "Hunton & Williams, by William D. Dannelly and Carolyn A. Dubay, for plaintiffs-appellants.", "Jordan Price Wall Gray Jones & Carlton, by Henry W. Jones, Jr., Hope Derby Carmichael, and Brian S. Edlin, for defendants-appellees." ], "corrections": "", "head_matter": "WILLIAM J. WISE and LYNN P. WISE, Plaintiffs v. HARRINGTON GROVE COMMUNITY ASSOCIATION, INC., and TOM FITZGERALD, TAMARA JAMES, DAVE BECHERER, STEWART JOSLIN, BILL SCHULTZ, and MIKE DALTON, in their official capacities as members of the Harrington Grove Community Association Board of Directors, Defendants\nNo. COA01-661\n(Filed 16 July 2002)\nAssociations\u2014 homeowners \u2014 violating declaration of covenants \u2014 authority to charge reasonable fines\nThe trial court did not err in a declaratory judgment action by concluding that N.C.G.S. \u00a7 47F-3-102(12) of the North Carolina Planned Community Act (PCA) granted defendant homeowners\u2019 association formed prior to 1 January 1999 the authority to charge reasonable fines against its members without the subdivision\u2019s declaration of covenants expressly providing for such power, because: (1) while the declaration does not expressly provide for the power to fine, the PCA provides that additional power; (2) there is no language in the articles of incorporation or the declaration that limits or restricts the association\u2019s power to fine; and (3) plaintiffs failed to preserve any constitutional issue regarding impairment of property or contract rights by failing to assign any error as required by N.C. R. App. P. 10(a).\nJudge Wynn dissenting.\nAppeal by plaintiffs from declaratory judgment entered 25 March 2001 by Judge Gary Trawick in Wake County Superior Court. Heard in the Court of Appeals 13 March 2002.\nHunton & Williams, by William D. Dannelly and Carolyn A. Dubay, for plaintiffs-appellants.\nJordan Price Wall Gray Jones & Carlton, by Henry W. Jones, Jr., Hope Derby Carmichael, and Brian S. Edlin, for defendants-appellees." }, "file_name": "0344-01", "first_page_order": 374, "last_page_order": 386 }