{ "id": 4357823, "name": "ROBERT L. SANFORD, Plaintiff v. ROGER WILLIAMS, SR., and wife KESIA H. WILLIAMS and the CITY OF HICKORY, a North Carolina Municipal Corporation, Defendants", "name_abbreviation": "Sanford v. Williams", "decision_date": "2012-06-05", "docket_number": "No. COA11-1066", "first_page": "107", "last_page": "120", "citations": [ { "type": "official", "cite": "221 N.C. App. 107" } ], "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": "665 S.E.2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641757 ], "weight": 4, "year": 2008, "pin_cites": [ { "page": "570" }, { "parenthetical": "quotation and quotation marks omitted" }, { "page": "569", "parenthetical": "quotation omitted" }, { "page": "569-70" } ], "opinion_index": 0, "case_paths": [ "/se2d/665/0561-01" ] }, { "cite": "657 S.E.2d 356", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640448, 12640449 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/657/0356-01", "/se2d/657/0356-02" ] }, { "cite": "646 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638887 ], "year": 2007, "pin_cites": [ { "page": "809", "parenthetical": "Geer, K, dissenting" } ], "opinion_index": 0, "case_paths": [ "/se2d/646/0801-01" ] }, { "cite": "616 S.E.2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633582, 12633583 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/616/0542-01", "/se2d/616/0542-02" ] }, { "cite": "611 S.E.2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632676 ], "pin_cites": [ { "page": "466" } ], "opinion_index": 0, "case_paths": [ "/se2d/611/0463-01" ] }, { "cite": "649 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639168 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "385", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0382-01" ] }, { "cite": "380 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 15, "year": 1989, "pin_cites": [ { "page": "575", "parenthetical": "citations omitted" }, { "page": "575", "parenthetical": "citation omitted" }, { "page": "572" }, { "page": "573" }, { "page": "573-74" }, { "page": "574" }, { "page": "574" }, { "page": "575", "parenthetical": "citation omitted" }, { "parenthetical": "internal citations omitted" }, { "page": "574", "parenthetical": "distinguishing the plaintiffs claims \"which arise as result of the permits\" from \"those which would be the result of a refusal by town officials to enforce the ordinance\"" }, { "page": "575", "parenthetical": "holding that the plaintiff's argument that the defendant's pool, bathhouse, and fence violated zoning ordinances due to the distance from various right-of-ways \"specifically concern[ed] [the] defendants' special use, or building permits\"" }, { "page": "575", "parenthetical": "emphasis added" }, { "page": "575", "parenthetical": "\"Plaintiff's complaints specifically concerning defendants' special use, or building permits, may only be remedied by first appealing to the board of zoning adjustment. She failed to do so and therefore she cannot now attack these permits.\"" } ], "opinion_index": 0 }, { "cite": "94 N.C App. 498", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527459 ], "weight": 4, "year": 1989, "pin_cites": [ { "page": "502", "parenthetical": "citations omitted" }, { "page": "502-03" }, { "page": "498" }, { "page": "503" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0498-01" ] }, { "cite": "595 S.E.2d 773", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "775", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 366", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8897426 ], "year": 2004, "pin_cites": [ { "page": "369", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0366-01" ] }, { "cite": "192 N.C. App. 391", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4159992 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "404" }, { "page": "403-04" } ], "opinion_index": 0, "case_paths": [ "/nc-app/192/0391-01" ] }, { "cite": "674 S.E.2d 444", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "446" } ], "opinion_index": 0 }, { "cite": "196 N.C. App. 126", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4166662 ], "year": 2009, "pin_cites": [ { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/nc-app/196/0126-01" ] }, { "cite": "362 N.C. 225", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150129 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/nc/362/0225-01" ] }, { "cite": "184 N.C. App. 629", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8187152 ], "year": 2007, "pin_cites": [ { "page": "641", "parenthetical": "Geer, K, dissenting" } ], "opinion_index": 0, "case_paths": [ "/nc-app/184/0629-01" ] }, { "cite": "424 S.E.2d 660", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1993, "pin_cites": [ { "page": "662", "parenthetical": "citation and quotation marks omitted" }, { "page": "682" }, { "page": "662", "parenthetical": "citation omitted" }, { "page": "663", "parenthetical": "applying a definition from the 1982 edition of The American Heritage Dictionary to determine the customary definition of the term \"mobile home\" as used in a restrictive covenant executed in 1981" }, { "page": "663" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 679", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525358 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "681", "parenthetical": "citation and quotation marks omitted" }, { "page": "683" }, { "page": "683" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0679-01" ] }, { "cite": "359 N.C. 635", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3800390, 3801911, 3796688, 3804371, 3798739, 3795063, 3794298 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0635-04", "/nc/359/0635-05", "/nc/359/0635-03", "/nc/359/0635-02", "/nc/359/0635-07", "/nc/359/0635-01", "/nc/359/0635-06" ] }, { "cite": "170 N.C. App. 151", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9004620 ], "pin_cites": [ { "page": "155" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0151-01" ] }, { "cite": "274 S.E.2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1981, "pin_cites": [ { "page": "179", "parenthetical": "internal citation omitted" }, { "page": "179" }, { "page": "179", "parenthetical": "citations omitted" }, { "page": "179", "parenthetical": "internal citation omitted" }, { "page": "182", "parenthetical": "stating that restrictive covenants must be \"clearly and unambiguously drafted\"" } ], "opinion_index": 0 }, { "cite": "302 N.C. 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563796 ], "weight": 4, "year": 1981, "pin_cites": [ { "page": "70", "parenthetical": "internal citation omitted" }, { "page": "71" }, { "page": "70" }, { "page": "75" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0064-01" ] }, { "cite": "702 S.E.2d 303", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "opinion_index": 0 }, { "cite": "364 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "opinion_index": 0 }, { "cite": "62 S.E.2d 88", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "90-91" } ], "opinion_index": 0 }, { "cite": "232 N.C. 707", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613737 ], "year": 1950, "pin_cites": [ { "page": "710-11" } ], "opinion_index": 0, "case_paths": [ "/nc/232/0707-01" ] }, { "cite": "695 S.E.2d 484", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "490-91" } ], "opinion_index": 0 }, { "cite": "205 N.C. App. 103", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 3734053 ], "pin_cites": [ { "page": "112" } ], "opinion_index": 0, "case_paths": [ "/nc-app/205/0103-01" ] }, { "cite": "683 S.E.2d 707", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2009, "pin_cites": [ { "page": "712", "parenthetical": "quotation omitted" }, { "page": "713", "parenthetical": "\"Unless the covenants set out a specialized meaning, the language of a restrictive covenant is interpreted by using its ordinary meaning.\"" }, { "page": "713" } ], "opinion_index": 0 }, { "cite": "198 N.C. App. 472", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4168794 ], "weight": 3, "year": 2009, "pin_cites": [ { "page": "478", "parenthetical": "quotation omitted" }, { "page": "480" }, { "page": "480" } ], "opinion_index": 0, "case_paths": [ "/nc-app/198/0472-01" ] }, { "cite": "548 S.E.2d 704", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "707", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "353 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135724 ], "year": 2001, "pin_cites": [ { "page": "651", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0647-01" ] }, { "cite": "361 N.C. 519", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3739573 ], "year": 2007, "pin_cites": [ { "page": "524", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0519-01" ] } ], "analysis": { "cardinality": 1039, "char_count": 32021, "ocr_confidence": 0.753, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14848684228308293 }, "sha256": "37d19bec917d9bd88b28a9ed7e894e99b137ec0401a549b81ef7ebbefb698ee7", "simhash": "1:0f6dce6c269e6624", "word_count": 5188 }, "last_updated": "2023-07-14T16:36:11.101860+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and McCULLOUGH concur." ], "parties": [ "ROBERT L. SANFORD, Plaintiff v. ROGER WILLIAMS, SR., and wife KESIA H. WILLIAMS and the CITY OF HICKORY, a North Carolina Municipal Corporation, Defendants" ], "opinions": [ { "text": "THIGPEN, Judge.\nRobert Sanford (\u201cMr. Sanford\u201d), Roger Williams, Sr., and his wife, Kesia H. Williams (\u201cMr. and Mrs. Williams\u201d), and the City of Hickory appeal from a summary judgment order. We must determine whether the trial court erred by (I) granting summary judgment to Mr. and Mrs. Williams on Mr. Sanford\u2019s claim for specific performance of certain restrictive covenants; (II) granting Mr. Sanford\u2019s motion for summary judgment on his request for a writ of mandamus against the City of Hickory; and (III) ordering the City of Hickory to \u201cmake a decision as to the zoning matters in this case within thirty (30) days[.]\u201d Because there is no genuine issue of material fact as to whether the carport violates the restrictive covenants, we affirm the portion of the trial court\u2019s order granting summary judgment to Mr. and Mrs. Williams. Furthermore, because the trial court was without subject matter jurisdiction to rule on Mr. Sanford\u2019s request for a writ of mandamus against the City of Hickory, we vacate the portions of the order granting Mr. Sanford\u2019s motion for summary judgment on his request for a writ of mandamus and ordering the City of Hickory to make a decision within thirty days.\nI. Factual and Procedural History\nMr. Sanford and Mr. and Mrs. Williams are neighbors who own property in the Huntington Forest Subdivision in Hickory, North Carolina. Mr. Sanford and Mr. and Mrs. Williams purchased their properties subject to certain restrictive covenants executed on 17 October 1969 by A B C & M, Inc., the developer of the subdivision.\nIn late May or early June of 2008, Roger Williams entered into a contract to construct a detached carport at his residence. On 3 June 2008, the City of Hickory issued a zoning permit and Catawba County issued a building permit for the construction of the carport. Both permits included a side setback requirement of five feet.\nIn August 2008, the City of Hickory Planning and Development Department (\u201cPlanning and Development Department\u201d) received a request from Mr. Sanford\u2019s daughter to investigate the carport. On 7 August 2008, the Planning and Development Department issued a verbal stop work order in connection with its investigation of the carport. However, because the carport was essentially complete at that time, the Catawba County building inspector proceeded with his final inspection. On 18 August 2008, the carport passed final inspection and a certificate of compliance was issued by the Catawba County building inspector.\nOn 10 October 2008, the City of Hickory Zoning Enforcement Division sent a letter to Mr. and Mrs. Williams regarding a potential zoning violation. The letter stated that \u201c[i]t is the determination of the City that a zoning violation appears to exist regarding an encroachment of the newly constructed carport on your property into the setback area\u201d and \u201cthe City will stay any fines or actions for a period of 30 days\u201d to allow Mr. and Mrs. Williams to obtain a survey of their property. Mr. Sanford obtained a survey of his property in September 2008. No further action was taken by the City of Hickory.\nOn 16 January 2009, Mr. Sanford filed a complaint against Mr. and Mrs. Williams seeking specific performance of certain restrictive covenants and zoning requirements and alleging a claim of trespass. The City of Hickory was later joined as a necessary party. Mr. and Mrs. Williams and the City of Hickory filed motions to dismiss for failure to state a claim and also filed answers alleging several defenses. On 10 March 2011, Mr. Sanford filed a motion for summary judgment. After a hearing on Mr. Sanford\u2019s motion, the trial court entered an order on 5 April 2011. The trial court ordered (1) summary judgment be entered against Mr. Sanford, as the moving party, and granted summary judgment to Mr. and Mrs. Williams on Mr. Sanford\u2019s claim for specific performance; (2) Mr. Sanford\u2019s motion for summary judgment be granted as to his request for a writ of mandamus against the City of Hickory; and (3) the City of Hickory to \u201cmake a decision as to the zoning matters in this case within thirty (30) days of the entry of this Order and . . . notify each party in writing of its decision.\u201d\nMr. Sanford appeals from the portion of the trial court\u2019s order granting summary judgment to Mr. and Mrs. Williams on Mr. Sanford\u2019s claim for specific performance. Mr. and Mrs. Williams and the City of Hickory appeal from the portions of the trial court\u2019s order granting Mr. Sanford\u2019s motion for summary judgment on his request for a writ of mandamus against the City of Hickory and ordering the City of Hickory to \u201cmake a decision as to the zoning matters in this case within thirty (30) days[.]\u201d\nII. Standard of Review\n\u201cThe standard of review for summary judgment is de novo.\u201d Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007) (citation omitted). Summary judgment is appropriate \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2011). \u201cSummary judgment, when appropriate, may be rendered against the moving party.\u201d Id. \u201c[T]he trial judge must view the presented evidence in a light most favorable to the nonmoving party and the party moving for summary judgment bears the burden of establishing the lack of any triable issue.\u201d Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d 704, 707 (2001) (citations omitted). Where the trial court\u2019s order does not state the legal basis for its ruling, \u201cif the granting of summary judgment can be sustained on any grounds, it should be affirmed on appeal.\u201d Wein II, LLC v. Porter, 198 N.C. App. 472, 478, 683 S.E.2d 707, 712 (2009) (quotation omitted).\nIII. Mr. Sanford\u2019s Appeal\nMr. Sanford contends the trial court erred by granting summary judgment to Mr. and Mrs. Williams on Mr. Sanford\u2019s claim for specific performance of the restrictive covenants. Specifically, Mr. Sanford contends that he has a right to enforce the covenants against Mr. and Mrs. Williams and that Mr. and Mrs. Williams violated the covenants.\nA. Right to Enforce Covenants\nMr. Sanford first contends that he has a right to enforce the covenants against Mr. and Mrs. Williams. We agree.\nRegarding the enforcement of restrictions on the use of real property in conjunction with a general plan of development, our Supreme Court has outlined the following principles:\n1. Where the owner of a tract of land subdivides it and sells distinct parcels thereof to separate grantees, imposing restrictions on its use pursuant to a general plan of development or improvement, such restrictions may be enforced by any grantee against any other grantee, either on the theory that there is a mutuality of covenant and consideration, or on the ground that mutual negative equitable easements are created.\n2. The right to enforce the restrictions in such case is not confined to immediate purchasers from the original grantor. It may be exercised by subsequent owners who acquire lots in the subdivision covered by the general plan through mesne conveyances from such immediate purchasers.\n3. The restrictions limiting the use of land in the subdivision embraced by the general plan can be enforced against a subsequent purchaser who takes title to the land with notice of the restrictions.\n4. A purchaser of land in a subdivision is chargeable in law with notice of restrictions limiting the use of the land adopted as a part of a general plan for the development or improvement of the subdivision if such restrictions are contained in any recorded deed or other instrument in his line of title, even though they do not appear in his immediate deed.\nRice v. Coholan, 205 N.C. App. 103, 112, 695 S.E.2d 484, 490-91 (quoting Sedberry v. Parsons, 232 N.C. 707, 710-11, 62 S.E.2d 88, 90-91 (1950)), disc. review denied, 364 N.C. 435, 702 S.E.2d 303 (2010).\nIn this case, Mr. and Mrs. Williams state in their brief that Mr. Sanford purchased his property \u201cin 1981 from Jerry and Hortense Jordan\u201d and that Mr. and Mrs. Williams are \u201csuccessors in interest\u201d to the developer who \u201cpurchased their property in 2004 from Temple Baptist Church of Hickory, Inc.\u201d Mr. and Mrs. Williams\u2019 brief also states that both they and Mr. Sanford \u201cpurchased their properties subject to certain restrictive covenants[.]\u201d Mr. and Mrs. Williams do not contend they did not have notice of the restrictive covenants. Accordingly, pursuant to the principles outlined in Rice, as a subsequent purchaser of a lot in the subdivision, Mr. Sanford may enforce the restrictive covenants against Mr. and Mrs. Williams, who are also subsequent purchasers who took title to the land with notice of the restrictions. See id.\nB. Summary Judgment\nMr. Sanford next contends the trial court erred by granting summary judgment to Mr. and Mrs. Williams because Mr. and Mrs. Williams violated the restrictive covenants. We disagree.\ni. Judicial Construction of Restrictive Covenants\nRestrictive covenants \u201care not favored by the law and they will be strictly construed to the end that all ambiguities will be resolved in favor of the unrestrained use of land.\u201d J. T. Hobby & Son, Inc. v. Family Homes of Wake County, Inc., 302 N.C. 64, 70, 274 S.E.2d 174, 179 (1981) (internal citation omitted). However, \u201cclearly and narrowly drawn restrictive covenants . . . are legitimate tools which may be utilized by developers and other interested parties to guide the subsequent usage of property.\u201d Id. at 71, 274 S.E.2d at 179. Restrictive covenants may be enforced at the summary judgment stage \u201cunless a material issue of fact exists as to the validity of the contract, the effect of the covenant on the unimpaired enjoyment of the estate, or the existence of a provision that is contrary to the public interest.\u201d Page v. Bald Head Ass\u2019n, 170 N.C. App. 151, 155, 611 S.E.2d 463, 466 (quotation and quotation marks omitted), disc. review denied, 359 N.C. 635, 616 S.E.2d 542 (2005).\n\u201cSound judicial construction of restrictive covenants demands that if the intentions of the parties are to be followed, each part of the covenant must be given effect according to the natural meaning of the words, provided that the meanings of the relevant terms have not been modified by the parties to the undertaking.\u201d J. T. Hobby & Son, 302 N.C. at 71, 274 S.E.2d at 179 (citations omitted). \u201cIn interpreting ambiguous terms in restrictive covenants, the intentions of the parties at the time the covenants were executed ordinarily control, and evidence of the situation of the parties and the circumstances surrounding the transaction is admissible to determine intent.\u201d Angel v. Truitt, 108 N.C. App. 679, 681, 424 S.E.2d 660, 662 (1993) (citation and quotation marks omitted). \u201cIntent is ... properly discovered from the language of the document itself, the circumstances attending the \u25a0 execution of the document, and the situation of the parties at the time of execution.\u201d Id. at 682, 424 S.E.2d at 662 (citation omitted).\nii. Carport as a Permissible Structure\nMr. Sanford first contends Mr. and Mrs. Williams\u2019 carport violates the following restriction:\n4. All lots in said subdivision as shown on said plat shall be used for residential purposes. No buildings shall be erected, altered, placed or permitted to remain on any lot other than one detached single family dwelling not to exceed two and one-half stories in height and a private garage which may have as a part of said garage, a storage room.\nPursuant to paragraph 4, the only buildings permitted to remain on a subdivision lot are \u201cone detached single family dwelling\u201d and \u201ca private garage[.]\u201d Mr. Sanford contends the carport is not a \u201cgarage\u201d for purposes of paragraph 4; therefore, the carport is prohibited by the restrictive covenants unless it is part of the \u201csingle family dwellingf.]\u201d Mr. and Mrs. Williams contend the carport is a \u201cgarage\u201d, and alternatively, that it is a permissible type of auxiliary structure. We agree with Mr. and Mrs. Williams.\nThe restrictive covenants do not specifically define \u201ccarport\u201d or \u201cgarage\u201d; however, both terms are mentioned in paragraph 8 as types of auxiliary structures to the single-family residence. Paragraph 8 provides as follows:\nThat no single-family residence having less than 1,400 square feet of heated floor space exclusive of garage, carport, basement, or other auxiliary structure shall be erected on the lot. Any residence having living quarters of more than one floor must contain at least 1,000 square feet of heated floor space on the principal floor and a total of not less than 1,800 square feet of heated floor space exclusive of garage, carport, basement, or other auxiliary structure.\nFurthermore, we conclude the ordinary or customary meaning of \u201cgarage\u201d in 1969, the time the restrictive covenants were executed, is sufficiently broad to include a \u201ccarport.\u201d See Wein II, 198 N.C. App. at 480, 683 S.E.2d at 713 (\u201cUnless the covenants set out a specialized meaning, the language of a restrictive covenant is interpreted by using its ordinary meaning.\u201d). A dictionary with the copyright date on or about the time the restrictive covenant was executed \u201cis an appropriate place to ascertain the then customary definitions of words and terms.\u201d Angel, 108 N.C. App. at 683, 424 S.E.2d at 663 (applying a definition from the 1982 edition of The American Heritage Dictionary to determine the customary definition of the term \u201cmobile home\u201d as used in a restrictive covenant executed in 1981) (citation omitted). The 1967 edition of Webster\u2019s Seventh New Collegiate Dictionary defines \u201cgarage\u201d as \u201ca shelter... for automotive vehicles[.]\u201d Webster\u2019s Seventh New Collegiate Dictionary 344 (1967). The same dictionary defines \u201ccarport\u201d as \u201can open-sided automobile shelter usu[ally] formed by extension of a roof from the side of a building[.]\u201d Id. at 128. Using these accepted definitions, and considering the language in the restrictive covenants, we conclude the developer intended for a \u201ccarport\u201d to be a permissible type of \u201cgarage\u201d or \u201cshelter for automotive vehicles\u201d under the restrictive covenants.\nAdditionally, although the parties dispute whether the carport is attached to Mr. and Mrs. Williams\u2019 residence, the restrictive covenants do not require that a garage be attached to the single family dwelling to be a permissible structure. Finally, we reiterate that restrictive covenants \u201cwill be strictly construed to the end that all ambiguities will be resolved in favor of the unrestrained use of land.\u201d J. T. Hobby & Son, 302 N.C. at 70, 274 S.E.2d at 179 (internal citation omitted). Accordingly, we conclude that Mr. and Mrs. Williams\u2019 carport is a permissible structure under the restrictive covenants.\niii. Carport as Part of the \u201cHome\u201d\nMr. Sanford also contends Mr. and Mrs. Williams\u2019 carport violates the following restriction:\n9. All homes constructed shall be at least forty (40) feet from the front property line and ten (10) feet from either side property line. Side yard, rear yard and corner lot requirements shall conform to Section RA-12 Residential Zoning Ordinance of City of Hickory.\nSpecifically, Mr. Sanford contends the ten feet side setback requirement in paragraph 9 applies to the carport because \u201chome\u201d refers to the house and all adjacent structures, including the carport. Mr. and Mrs. Williams contend, however, that the term \u201chome\u201d in paragraph 9 refers only to the \u201cdwelling place\u201d and does not include the carport; therefore, the ten feet side setback requirement does not apply to the carport. We agree with Mr. and Mrs. Williams.\nThe restrictive covenants do not specifically define \u201chome\u201d; however, several paragraphs treat a \u201csingle family dwelling\u201d or \u201cresidence\u201d separately from a \u201cgarage\u201d or \u201ccarport[.]\u201d Paragraph 4 states that the only buildings permitted on a subdivision lot are \u201cone detached single family dwelling\u201d and \u201ca private garage[.]\u201d Paragraph 8 states in part that \u201cno single-family residence having less than 1,400 square feet of heated floor space exclusive of garage, carport, basement, or other auxiliary structure shall be erected on the lot.\u201d Moreover, paragraph 7 specifically restricts the use of outbuildings, including a garage, and states, \u201cNo trailer, basement, tent, shack, garage, or other outbuildings erected on these residential lots shall be, at any time, used as a residence, temporarily or permanently!.]\u201d\nAdditionally, in looking at the ordinary meaning of the word \u201chome,\u201d we find the 1967 edition of Webster\u2019s Seventh New Collegiate Dictionary instructive. See Wein II, 198 N.C. App. at 480, 683 S.E.2d at 713; Angel, 108 N.C. App. at 683, 424 S.E.2d at 663. This dictionary defines \u201chome\u201d as \u201ca family\u2019s place of residence!.]\u201d Webster\u2019s Seventh New Collegiate Dictionary 397. Using this accepted definition, along with the language in the restrictive covenants, we conclude the developer did not intend for the term \u201chome\u201d to include a \u201cgarage\u201d or any other \u201coutbuildings\u201d in which a person or family did not reside.\nFurthermore, if the developer intended for the ten feet side setback requirement in paragraph nine to apply to the garage, carport, or other auxiliary structures, it could have clearly expressed such an intention. For example, the developer could have written that \u201call homes, garages, carports, or other auxiliary structures shall be at least ten feet from either side property line.\u201d Because the developer did not express such an intention, \u201c[t]his Court may not restrict the use of the property when the restrictive covenant has failed to do so in a clear manner.\u201d Winding Ridge Homeowners Ass\u2019n, Inc. v. Joffe, 184 N.C. App. 629, 641, 646 S.E.2d 801, 809 (2007) (Geer, K, dissenting), rev\u2019dper curiam for the reasons stated in the dissent, 362 N.C. 225, 657 S.E.2d 356 (2008); see J. T. Hobby & Son, 302 N.C. at 75, 274 S.E.2d at 182 (stating that restrictive covenants must be \u201cclearly and unambiguously drafted\u201d).\nFor the foregoing reasons, we conclude the ten feet side setback requirement which applies to \u201c[a]ll homes\u201d pursuant to paragraph 9, does not apply to a \u201cgarage\u201d or \u201ccarport.\u201d Thus, there is no genuine issue of material fact regarding whether Mr. and Mrs. Williams\u2019 carport violated the restrictive covenants. See Hodgin v. Brighton, 196 N.C. App. 126, 129, 674 S.E.2d 444, 446 (2009) (holding that the language of the restrictive covenant was clear and unambiguous as to whether the side lot limits applied to a garage where the restrictions \u201cexpressly except!] attached garages from the setback restrictions applicable to other outbuildings\u201d and \u201c[n]othing in the restrictions suggests that an attached garage is subject to the twenty-five feet setback for the primary residence\u201d). We hold the trial court did not err by granting summary judgment to Mr. and Mrs. Williams on Mr. Sanford\u2019s claim for specific performance.\nIV. Defendants\u2019 Appeal\nMr. and Mrs. Williams and the City of Hickory (collectively \u201cDefendants\u201d) contend the trial court erred by (I) failing to dismiss Mr. Sanford\u2019s request for a writ of mandamus due to a lack of subject matter jurisdiction; (II) granting Mr. Sanford\u2019s motion for summary judgment on his request for a writ of mandamus and failing to enter summary judgment against Mr. Sanford, as the moving party, and in favor of Defendants on Mr. Sanford\u2019s request for a writ of mandamus; and (III) ordering the City of Hickory to \u201cmake a decision as to the zoning matters in this case within thirty (30) days[.]\u201d\nA. Subject Matter Jurisdiction\nDefendants first contend the trial court erred by failing to dismiss Mr. Sanford\u2019s request for a writ of mandamus due to a lack of subject matter jurisdiction. Defendants raised the issue of subject matter jurisdiction before the trial court at the hearing on summary judgment, but admit they \u201cdid not file a motion to dismiss for lack of subject matter jurisdiction before the hearing[.]\u201d However, \u201cit is well-established that an issue of subject matter jurisdiction may be raised at any stage of a case and may be raised by a court on its own motion.\u201d Laurel Valley Watch, Inc. v. Mountain Enterprises of Wolf Ridge, LLC, 192 N.C. App. 391, 404, 665 S.E.2d 561, 570 (2008). \u201cFurthermore, a universal principle as old as the law is that the proceedings of a court without jurisdiction of the subject matter are a nullity.\u201d Id. (quotation and quotation marks omitted). Thus, we will first address the issue of whether the trial court had subject matter jurisdiction over Mr. Sanford\u2019s request for a writ of mandamus.\n\u201cAs a general rule, where the legislature has provided by statute an effective administrative remedy, that remedy is exclusive and its relief must be exhausted before recourse may be had to the courts.\u201d Id. at 403, 665 S.E.2d at 569 (quotation omitted). \u201cIf a plaintiff has failed to exhaust its administrative remedies, the court lacks subject matter jurisdiction and the action must be dismissed.\u201d Justice for Animals, Inc. v. Robeson County, 164 N.C. App. 366, 369, 595 S.E.2d 773, 775 (2004) (citation omitted).\n\u201cThe board of adjustment is an administrative body with quasi-judicial power whose function is to review and decide appeals which arise from the decisions, orders, requirements or determinations of administrative officials, such as building inspectors and zoning administrators.\u201d Midgette v. Pate, 94 N.C App. 498, 502, 380 S.E.2d 572, 575 (1989) (citations omitted). North Carolina General Statutes \u00a7 160A-388(b) \u201cconfers on the board [of adjustment] appellate jurisdiction to review the acts of those charged with enforcing the zoning ordinance.\u201d Id. at 502, 380 S.E.2d at 575 (citation omitted). Specifically, N.C. Gen. Stat. \u00a7 160A-388(b) (2011) provides that \u201cthe board of adjustment shall hear and decide appeals from and review any order, requirement, decision, or determination made by an administrative official charged with the enforcement of that ordinance.\u201d \u201cOnce the municipal official has acted, for example by granting or refusing a permit, any person aggrieved may appeal to the board of adjustment.\u201d Midgette, 94 N.C. App. at 502-03, 380 S.E.2d at 575 (citing N.C. Gen. Stat. \u00a7 160A-388(b)).\nThe ordinance at issue in this case tracks the procedures set forth in Chapter 160A. Namely, Article 2, Section 2.12.1 of the City of Hickory Land Development Code (the \u201cLand Development Code\u201d) provides that \u201c[t]he Board of Adjustment shall be authorized to hear and decide appeals where it is alleged there is an error in any order, requirement, decision, or determination made by an administrative official in the administration or enforcement of the provisions of this Land Development Code.\u201d\nIn this case, Defendants contend that because Mr. Sanford is contesting the issuance of the zoning and building permits, he should have first appealed to the board of adjustment to exhaust his administrative remedies. Mr. Sanford contends, however, that he is not contesting the issuance of the zoning and building permits because he never contended that Mr. and Mrs. Williams could not construct a carport. Rather, Mr. Sanford argues the issue is whether the side setback requirement has been violated, an issue the City of Hickory has not yet determined. Because we conclude the side setback requirement is an issue directly related to the issuance of the zoning permit, we agree with Defendants.\nWe find this case analogous to Midgette, 94 N.C. App. at 498, 380 S.E.2d at 572. In Midgette, the defendant town issued building and special use permits to the plaintiffs neighbors, the defendant property owners, for the construction of a swimming pool and bathhouse. Id. at 499, 380 S.E.2d at 573. After the swimming pool and bathhouse were built, plaintiff filed a complaint alleging that the pool, bathhouse, and fence enclosing them violated the town\u2019s zoning ordinances and the subdivision\u2019s protective covenants due to their distance from various right-of-ways. Id. at 500, 380 S.E.2d at 573-74. The plaintiff also alleged that the sale of memberships to the defendants\u2019 pool violated the zoning ordinances and protective covenants. Id. at 500, 380 S.E.2d at 574. Plaintiff sought, among other things, that \u201ca writ of mandamus issue to direct the town officials to enforce the zoning ordinance].]\u201d Id. This Court distinguished the plaintiff\u2019s complaints \u201cwhich arise as result of the permits which were granted to the [defendants] [from] those which would be the result of a refusal by town officials to enforce the ordinance].]\u201d Id. at 501, 380 S.E.2d at 574. Regarding the plaintiff\u2019s claims for \u201csale of memberships for use of the pool, the building of structures not covered by the permits, and parkingf,]\u201d this Court held that \u201cplaintiff has stated a proper claim against the Town for mandamus ... as there has been no decision by a zoning administrator from which she may appeal, she may not go forward under N.C.G.S. \u00a7 160A-388(b) to contest the use ... of the pool[.]\u201d Id. at 503, 380 S.E.2d at 575 (citation omitted). However, regarding the complaints that arose as result of the defendants\u2019 permits, this Court held as follows:\nPlaintiff has alleged the special damages required to assert standing under N.C.G.S. \u00a7 160A-388(b) as an aggrieved person. Thus, she could have contested the permits had she timely filed with the board of adjustment. Plaintiff\u2019s complaints specifically concerning defendants\u2019 special use, or building permits, may only be remedied by first appealing to the board of zoning adjustment. She failed to do so and therefore she cannot now attack these permits.\nId. (internal citations omitted).\nHere, the zoning and building permits authorize the construction of a detached carport with a five foot side setback. Both of the permits and the certificate of compliance state that the carport \u201cmust be detached from home for the 5\u2019 setback.\u201d Although Mr. Sanford contends he is not challenging the issuance of the permits, he also argues that because the carport is not an accessory structure under the Land Development Code, \u201cit is part of the principal structure and must meet the ten feet [side] setback.\u201d We conclude that the issue of whether a five or ten foot side setback applies, and the issue of whether the carport violates the side setback, \u201carise as result of the permits\u201d that were granted to Mr. and Mrs. Williams, see id. at 501, 380 S.E.2d at 574 (distinguishing the plaintiffs claims \u201cwhich arise as result of the permits\u201d from \u201cthose which would be the result of a refusal by town officials to enforce the ordinance\u201d), and \u201cspecifically concern[]\u201d Mr. and Mrs. Williams\u2019 zoning and building permits. See id. at 503, 380 S.E.2d at 575 (holding that the plaintiff\u2019s argument that the defendant\u2019s pool, bathhouse, and fence violated zoning ordinances due to the distance from various right-of-ways \u201cspecifically concern[ed] [the] defendants\u2019 special use, or building permits\u201d).\n\u201cOnce the municipal official has acted, for example by granting or refusing a permit, any person aggrieved may appeal to the board of adjustment.\u201d Id. at 502-03, 380 S.E.2d at 575 (emphasis added) (quotation and quotation marks omitted); see also N.C. Gen. Stat. \u00a7 160A-388(b). Because Mr. Sanford\u2019s request for a writ of mandamus specifically concerns Mr. and Mrs. Williams\u2019 zoning and building permits, he should have timely appealed the issuance of these permits to the board of adjustment. See Midgette, 94 N.C. App. at 503, 380 S.E.2d at 575 (\u201cPlaintiff\u2019s complaints specifically concerning defendants\u2019 special use, or building permits, may only be remedied by first appealing to the board of zoning adjustment. She failed to do so and therefore she cannot now attack these permits.\u201d). Mr. Sanford failed to first appeal to the board of adjustment, and therefore he cannot now attack the permits. See id.; Laurel Valley Watch, 192 N.C. App. at 403-04, 665 S.E.2d at 569-70 (holding that the trial court was without subject matter jurisdiction to rule on the plaintiff\u2019s claims because the plaintiff \u201cdid not exhaust its administrative remedies before seeking relief in the courts\u201d when the plaintiff filed its case directly in the superior court, thereby \u201cbypass [ing] the statutorily prescribed procedures for resolving zoning disputes\u201d) (citation omitted). Having failed to exhaust his administrative remedies, we conclude the trial court was without subject matter jurisdiction to rule on Mr. Sanford\u2019s request for a writ of mandamus against the City of Hickory. We, therefore, will not address Defendants\u2019 remaining argument on appeal.\nIn summary, we affirm the portion of the trial court\u2019s order granting summary judgment to Mr. and Mrs. Williams on Mr. Sanford\u2019s claim for specific performance. Additionally, we vacate the portions of the trial court\u2019s order granting Mr. Sanford\u2019s motion for summary judgment on his request for a writ of mandamus and ordering the City of Hickory to \u201cmake a decision as to the zoning matters in this case within thirty (30) days[.]\u201d\nAFFIRMED in part; VACATED in part.\nJudges HUNTER and McCULLOUGH concur.\n. We note that pursuant to paragraph two of the restrictive covenants, Mr. Sanford, as an owner of real property in the subdivision, can enforce the restrictions against \u201cthe parties hereto, or any of them or their heirs, or assigns[.]\u201d The developer is the only party to the restrictive covenants; thus, Mr. and Mrs. Williams contend Mr. Sanford cannot enforce the restrictive covenants against them because they are not \u201cheirs\u201d or \u201cassigns\u201d of the developer. We, however, find Rice controlling and reject this argument.\n. Mr. Sanford also contends the trial court erred by denying his motion for summary judgment on his claim for specific performance of the restrictive covenants. We first note that the trial court did not specifically deny Mr. Sanford\u2019s motion for summary judgment; rather, the trial court entered summary judgment against him, as the moving party, and granted summary judgment in favor of Mr. and Mrs. Williams. Moreover, because we hold the trial court did not err by granting summary judgment in favor of Mr. and Mrs. Williams, we will not address this argument.", "type": "majority", "author": "THIGPEN, Judge." } ], "attorneys": [ "Wesley E. Starnes, P.C., by Wesley E. Starnes, for the plaintiff", "Patrick Harper & Dixon, LLP, by Michael J. Barnett, for Defendants Roger Williams, Sr. and Kesia H. Williams.", "Gorham, Crone, Green & Steele, LLP, by John W. Crone, III, for Defendant the City of Hickory." ], "corrections": "", "head_matter": "ROBERT L. SANFORD, Plaintiff v. ROGER WILLIAMS, SR., and wife KESIA H. WILLIAMS and the CITY OF HICKORY, a North Carolina Municipal Corporation, Defendants\nNo. COA11-1066\n(Filed 5 June 2012)\n1. Real Property \u2014 restrictive covenants \u2014 specific performance \u2014 covenants enforceable \u2014 covenants not violated\nThe trial court did not err by granting summary judgment in favor of defendants on plaintiff\u2019s claim for specific performance of restrictive covenants. Although plaintiff had a right to enforce the covenants against defendants, defendants\u2019 carport was a permissible structure under the restrictive covenants and the ten-foot side setback requirement which applied to all \u201chomes\u201d pursuant to the covenants did not apply to the carport.\n2. Jurisdiction \u2014 building permit \u2014 subject matter jurisdiction \u2014 administrative remedies not exhausted\nThe trial court erred in a zoning and building permit case by failing to dismiss plaintiff\u2019s request for a writ of mandamus due to a lack of subject matter jurisdiction. Plaintiff\u2019s request for a writ of mandamus specifically concerned defendants\u2019 zoning and building permits and plaintiff should have timely appealed the issuance of those permits to the board of adjustment. Having failed to exhaust his administrative remedies, the trial court was without subject matter jurisdiction to rule on plaintiffs request for a writ of mandamus.\nAppeal by plaintiff and defendants from order entered 5 April 2011 by Judge Robert C. Ervin in Catawba County Superior Court. Heard in the Court of Appeals 7 February 2012.\nWesley E. Starnes, P.C., by Wesley E. Starnes, for the plaintiff\nPatrick Harper & Dixon, LLP, by Michael J. Barnett, for Defendants Roger Williams, Sr. and Kesia H. Williams.\nGorham, Crone, Green & Steele, LLP, by John W. Crone, III, for Defendant the City of Hickory." }, "file_name": "0107-01", "first_page_order": 117, "last_page_order": 130 }