Older Charlotte neighborhoods worry about pro-development court ruling
Eastover, Myers Park and other parts of south Charlotte had relied on deed restricts to help guard against unwanted growth
The following article appeared in the February 15, 2023, edition of The Charlotte Ledger, a newsletter with smart and original insights from experienced journalists. We offer free and paid versions. Find out more.
Dispute over Eastover home expansion leads to N.C. Supreme Court ruling that voids deed restrictions; will it ‘destroy the character’ of historic neighborhoods?
Many owners of homes on Cherokee Road in Charlotte’s Eastover neighborhood thought deed restrictions dating from the 1920s would prevent multifamily housing and other development. But the state Supreme Court said a 1970s-era law makes those protections invalid.
By Tony Mecia
Residents in some of Charlotte’s older neighborhoods say they’re alarmed by a recent N.C. Supreme Court decision that could lead to bigger houses and multifamily buildings in their single-family neighborhoods.
The court’s December ruling, which has statewide significance, held that certain older deed restrictions that limited building heights, imposed setback requirements and excluded multifamily housing are no longer valid. Those kinds of restrictions were typically put in place when subdivisions were developed decades ago as a means of regulating a neighborhood’s look.
Many Charlotte neighborhood associations have been monitoring the case and are now trying to understand what the elimination of longstanding development rules might mean. No central authority tracks deed restrictions, but they are believed to be prevalent in dozens of neighborhoods throughout south Charlotte and close to uptown.
The court’s decision sprang from three lawsuits — one in Eastover, one off Providence Road near Kuykendall Road in south Charlotte and one in Asheville.
Residents on the losing side of the 4-3 decision warn the effects could be significant.
“It will have the effect of destroying the character of neighborhoods all over North Carolina, creating a Wild West not unlike housing was before zoning was adopted,” said former Charlotte Mayor Richard Vinroot, an Eastover resident and lawyer with law firm Robinson Bradshaw who argued the case before the Supreme Court in September.
Many Charlotte neighborhoods had assumed that their deed restrictions shielded them from parts of the city’s 2040 Comprehensive Plan and Unified Development Ordinance, adopted by the Charlotte City Council last year, which allows duplexes and triplexes in single-family neighborhoods. But if those restrictions are no longer valid, developers could now build those structures, subject to city development rules.
The case hinged on the court’s interpretation of a 1973 North Carolina law called the Real Property Marketable Title Act. It attempted to encourage property sales and development by eliminating certain outdated and hard-to-find property restrictions that were part of real estate deeds older than 30 years. The justices disagreed over one passage that had seemingly ambiguous meaning, and a narrow majority found that the wording extinguished many residential deed restrictions. The law does not eliminate restrictions that originated or were restated in deeds in the last 30 years, and it does not apply to neighborhoods with homeowners’ associations.
Eastover dispute: The Eastover case sprang from a dispute among homeowners on Cherokee Road, a stately residential street off Providence Road that is lined with multi-million-dollar homes that date to the 1920s. At the time, the developer of the subdivision placed 10 restrictions in the deeds that were intended to last in perpetuity, according to court documents. The rules called for houses to be at least 90 feet from Cherokee Road and at least 20 feet from side property lines. They also called for “no apartment house” on any of the parcels.
Like many such restrictions in the South at the time, they also provided that the land be “owned, occupied and used only by members of the white race.” The U.S. Supreme Court ruled in 1948 that such racial restrictions were unenforceable.
But the other restrictions remained and were generally believed to have passed down to subsequent property owners. Although deed restrictions are prevalent throughout Charlotte, some neighborhoods are more aware of their existence than others. They tend to be well-known in Eastover and Myers Park, for example. Myers Park’s neighborhood association, for instance, says on its website that it is “dedicated to seeing that the deed restrictions are observed and enforced” in order to “maintain the original charter of the Myers Park neighborhood.”
That’s why Ward Williams was surprised one day in 2018 when his next-door neighbors on Cherokee, Michael and Karyn Reardon, started building an addition close to his property line.
“We called them and said, ‘What are you doing here? We know that your side yard setback is 20 feet, and you’re within 6 feet of the property line,’” he recalled. “They said, ‘Well, we talked to some people, and they thought it would be all right.”
Building permit records show that in 2018, the Reardon house was approved for a $106,000 master bedroom and bathroom addition and a $61,000 garage renovation. The house is 5,800 square feet and is valued at $2.6 million. Their lawyer was unable to provide a comment to The Ledger on the matter this week.
Williams said his neighbors wouldn’t back down, even though their addition was “right in our face.” He and his wife sued and were backed by nearly 50 other neighbors, including some big names, such as former Wachovia CEO Ken Thompson, former Belk CEO Tim Belk, Childress Klein founding partner Landon Wyatt and Bank of America chief administrative officer Steve Boland, according to court documents.
Eastover residents started a GoFundMe page, titled the “Charlotte Home Preservation Fund,” to help defray the Williams’ legal bills. “They have been carrying the financial and emotional burden for all of us and need our support to continue the fight,” the page said. It raised $58,000.
But the court backed the Reardons’ right to build the addition.
“We thought we would win, quite honestly,” Williams told The Ledger. “We thought it was pretty black and white.”
Nancy Carlton, who serves on the board of the Eastover Residents’ Association, says many residents are disappointed with the decision because it changes the rules from what they expected when they bought houses in the neighborhood. The most important restrictive covenant in Eastover is the single-family-only restriction, she said.
“It was not the decision we wanted, that’s for sure,” she said. “Do I think it’s going to completely ruin our neighborhood? I certainly hope not.”
Carlton said it’s not just the Eastover neighborhood that will be harmed, because neighborhoods of all kinds throughout North Carolina have development restrictions that now could be wiped away. The ruling could accelerate gentrification in lower-income neighborhoods, she said, by encouraging new development. The decision is exacerbated in Charlotte by the 2040 Plan, she said.
“In general, I don’t think [the ruling] benefits the majority of homeowners in affected neighborhoods. Perhaps it benefits builders and developers,” she said. She said the neighborhood association plans to meet in the next month to discuss its options “to keep the integrity of the neighborhood.”
Some real estate lawyers who closely followed the case, though, doubt that the decision will be significant.
“I don’t believe the effect is going to be as dramatic as some of the parties to this litigation seem to think it would be,” said Zipporah Edwards, a real estate litigator in the Charlotte office of Offit Kurman who filed a friend of the court brief in the case on behalf of the N.C. Land Title Association, a professional association serving the title insurance industry. “It’s not just a blanket ‘all these restrictions are gone.’ It’s really going to depend. It’s going to vary property to property, and what is in that property’s chain of title.”
More lawsuits to clarify the ruling are possible.
There’s a silver lining for the Williams family, though. Williams says the couple who bought the Reardons’ property last year is removing the addition that’s close to their property line because “they wanted to be good neighbors.”
“We won that battle,” he says, “but we lost the war.”
Tony Mecia is The Ledger’s executive editor. Reach him at tony@cltledger.com.
➡️ Read the Supreme Court decision: C Investments 2 LLC vs. Auger (involving development off Providence Road); Eastover case is Williams vs. Reardon (Court of Appeals decision that was affirmed)
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Executive editor: Tony Mecia; Managing editor: Cristina Bolling; Staff writer: Lindsey Banks; Contributing editor: Tim Whitmire, CXN Advisory; Contributing photographer/videographer: Kevin Young, The 5 and 2 Project