Lawsuit over Myers Park home could have citywide impact

You’ve heard of one-story houses and two-story houses, but what’s a 1  1/2-story house?

In a case that might have implications for homeowners across Mecklenburg County, a Superior Court judge last week heard arguments about whether a restriction limiting houses to “one-and-a-half stories in height” in a neighborhood is valid and enforceable.

The hearing was spurred by a suit involving a home being built in Myers Park. A real estate developer, JDB Development Co., filed the complaint stating that a restrictive covenant limiting houses to 1  1/2 stories was too vague to be enforceable.

JDB began construction of a two-story residential property in a plot of land at 1501 Sterling Road in early 2015. The developer had bought the parcel in 2014 for almost $600,000.

In April of that year, several homeowners complained to the local homeowners association about a full second floor going up on the house. In May 2015 a cease-and-desist notice was served to the developer.

In August, JDB filed a suit asking the courts to declare the restriction “invalid and unenforceable.” Twenty-six neighborhood homeowners were named defendants.

During the hearing Thursday, Amy Hunt, the developer’s attorney, argued that restrictive covenants needed to be specific and clear. She argued that since there was no explanation of what one-and-a-half stories meant in the original document the restriction was not enforceable.

The plaintiff held that “one-and-a-half stories in height” was a height restriction going by the plain meaning of the phrase. This height restriction gave no measure of how high a building could be and was therefore too vague to be enforced, Hunt argued. In addition, the property was found to not be the tallest in the block and so cannot be in violation of the restriction, she said.

The defendants stated that the restriction was actually a design restriction and not related to the physical height of the building. Further, they stated that the term was a well-understood term of art in architecture and filed a motion asking the court to rule that the developer was in violation of the restriction.

Under the architectural definition, the living space on the upper floor is built into the roofline, said Patrick Kelly, an attorney for the defendants, during the hearing.

Kelly also made the case that if “stories in height” was determined to be a vague term by the court, it would have negative implications for thousands of homeowners, who currently comply with deed restrictions around the city stipulating story limits.

The defense also said the developer knew the house was in violation of the regulation and had changed its title insurance to cover any losses in case the second story had to be torn down later.

“We are thankful for the opportunity to present our case as to why we feel JDB Development intentionally violated the covenant,” Kelly told the Observer.

Whether the developer intentionally violated the covenant is relevant to whether the company can try to enforce the covenant on any other homes that may be in violation. If there was an intentional violation, the developer cannot seek to enforce it on other violating houses, according to a legal doctrine known as “unclean hands,” Kelly said.

Daniel Kuehnert, a Superior Court judge from Morganton, asked both sides for more supplemental documents to support their arguments before a ruling could be made. The court indicated it wanted to rule by the end of this week.

Hunt, the attorney for the plaintiff, declined to comment.

This story was originally published July 12, 2016 at 3:27 PM with the headline "Lawsuit over Myers Park home could have citywide impact."