Makar v. Mimosa Bay Homeowners Association, Inc.
Sneads Ferry, Onslow · NC · North Carolina Court of Appeals
Member win · architectural
What happened
The Makars bought in Mimosa Bay (Sneads Ferry) in 2012 and in March 2015 built a wooden privacy fence, then applied for ARC approval. Gordon Frieze, acting alone as ARC chairman (later board president), denied a variance and imposed escalating daily fines and a lien. The trial court granted the HOA summary judgment. On March 19, 2019, the North Carolina Court of Appeals reversed with instructions to enter summary judgment for the Makars.
What the court (or agency) held
The declaration required ARC decisions by a multi-member committee; a single 'ARC chairman' could not validly deny a fence variance. Because no properly constituted ARC ruled within 45 days of submission, the declaration's deemed-approval clause made the fence permissible, and fines based on the invalid denial were unauthorized. Summary judgment for the HOA was reversed with instructions to enter summary judgment for the Makars.
Why this matters for members
Architectural power must be exercised by the body the declaration creates. Solo 'chairman' denials can trigger deemed approval and wipe out fines/liens that depend on a valid denial.
What the member did
Submitted the ARC application; sued for declaratory relief against the denial and fines; developed deposition proof that Frieze alone decided.
Questions for the board
- Is the ARC actually appointed with the minimum members the declaration requires?
- Who signs denial letters, and is that person's sole signature authorized?
- How is the 45-day deemed-approval clock tracked after an application is submitted?
Questions for a lawyer
- Was a properly constituted ARC ever appointed during the Period of Declarant Control or afterward?
- Do deposition admissions that one person decided defeat the association's fine and lien claims?
- What effect does unpublished Rule 30(e) status have on citing this case?
Citation
Makar v. Mimosa Bay Homeowners Association, Inc., No. COA18-547 (N.C. Ct. App. Mar. 19, 2019) (unpublished; Rule 30(e)) (2019-03-19). North Carolina Court of Appeals. Outcome chip: UNPUBLISHED. Flags: unreported. Source: https://caselaw.findlaw.com/court/nc-court-of-appeals/1987854.html
_General information, not legal advice. Outcomes turn on facts and current law._
General information, not legal advice. Outcomes turn on facts and current law.