Beverly Island Ass'n v. Zinger

• Decision Date: 06 April 1982
• Docket Number: Docket No. 53451
• Citation: 317 N.W.2d 611,29 A.L.R.4th 723,113 Mich.App. 322
• Parties: BEVERLY ISLAND ASSOCIATION, a Michigan Association, Plaintiff-Appellee, v. William ZINGER and Jeanette Zinger, his wife, Defendants-Appellants. 113 Mich.App. 322, 317 N.W.2d 611, 29 A.L.R.4th 723
• Court: Court of Appeal of Michigan — District of US

Page 611

317 N.W.2d 611

BEVERLY ISLAND ASSOCIATION, a Michigan Association Plaintiff-Appellee, v. William ZINGER and Jeanette Zinger, his wife Defendants-Appellants.

Docket No. 53451.

113 Mich.App. 322, 317 N.W.2d 611, 29 A.L.R.4th 723

Court of Appeals of Michigan.

Submitted Nov. 10, 1981.

Decided Feb. 17, 1982.

Released for Publication April 6, 1982.

[113 MICHAPP 323] Yuille, Plourde & Russell by Peter M. Keenan, Pontiac, for plaintiff-appellee.

Richard Ericksen, Pontiac, for defendants-appellants.

Schaden & Heldman, Detroit, amicus curiae for the Women Lawyers Association of Michigan.

Before MAHER, P. J., and WALSH and RILEY, JJ.

RILEY, Judge.

Defendants appeal as of right from a judgment which permanently enjoined them from operation of a licensed family day care home in their subdivision residence. The trial court found the activities of the family day care [113 MICHAPP 324] home were in violation of a restrictive covenant contained in all subdivision deeds.

M.C.L. Sec. 722.111(f)(iii); M.S.A. Sec. 25.358(11)(f)(iii) defines a family day care home as:

"a private home in which 1 but less than 7 minor children are received for care and supervision for periods of less than 24 hours a day, unattended by a parent or legal guardian, except children related to an adult member of the family by blood, marriage, or adoption. It includes a home that gives care to an unrelated minor child for more than 4 weeks during a calendar year."

The restrictive covenant at issue in this case states as follows:

"Land Use and Building Type.

"A. No lot or building plot shall be used except for residential purposes. No structure shall be erected, altered, placed, or permitted to remain on any lot or building plot other than one detached single family private dwelling not to exceed 2 stories in height above grade level." (Emphasis added.)

The plaintiff is the local homeowners association. It filed a complaint on August 13, 1979, seeking injunctive relief. Defendants answered, admitting that their deed contained such a restriction and that Mrs. Zinger was engaging in child care activities. Cross motions for summary judgment, pursuant to GCR 1963, 117.2(1) and (3), were filed by defendants and plaintiff respectively. The trial court granted partial summary judgment in plaintiff's favor. The court also ruled that an evidentiary hearing was necessary to determine whether plaintiff was estopped by its conduct from bringing suit. The testimony presented at that [113 MICHAPP 325] hearing will be detailed later in this opinion as necessary. The trial court determined that plaintiff was not estopped from bringing this action. Therefore, defendants were permanently enjoined from operating a family day care home at their Beverly Island premises.

Defendants raise two issues on appeal: (I) whether the use of their home as a family day care home violates the residential use restriction in their deed and (II) whether the trial court erred in ruling that the plaintiff should not be estopped from bringing this action. The issue of whether child care activities in a home which rise to the level of a family day care home are violative of a residential use restrictive covenant is one of first impression in Michigan.

The trial court stated in its October 15, 1979 opinion:

"While it is true that the children are cared for in the same manner as Mrs. Zinger's [three] children and participate in the same types of activities, it must be apparent to all adjacent homeowners that a day care facility is indeed being conducted upon these premises. I do not feel that it can reasonably be stated that the maintenance of these children within the Zinger residence constitutes 'family use'. Accordingly, I am satisfied on the facts presented that the alleged use of these premises is in violation of the restrictive covenants."

Building and use restrictions in residential deeds are favored by public policy. Johnstone v. Detroit, Grand Haven & Milwaukee R. Co., 245 Mich. 65, 74, 222 N.W. 325 (1928). However, " '[r]estrictive covenants in deeds are construed strictly against grantors and those claiming the right to enforce them, and all doubts are resolved in favor of the free use of property.' James v. Irvine, 141 Mich. 376 [104 [113 MICHAPP 326] N.W. 631 (1905) ]." Wood v. Blancke, 304 Mich. 283, 287, 8 N.W.2d 67 (1943).

With this rule of law before us, we note the deed permits residential uses rather than prohibiting business or commercial uses. See, Anno: Construction and application of covenant restricting use of property to "residence" or "residential purposes", ALR 1191. In Miller v. Ettinger, 235 Mich. 527, 209 N.W. 568 (1926), the Court determined that the restriction in a deed that lots "shall be used solely for residence purposes" did not forbid erection of an apartment house. A restriction allowing residential uses permits a wider variety of uses than a restriction prohibiting commercial or business uses.

The covenant involved here stating that no lot shall be used except for residential purposes has not been interpreted by any Michigan appellate courts with regard to family day care homes. Restrictive covenant cases uniquely depend upon the facts of the particular case. Scott v. Armstrong, 330 Mich. 504, 509, 47 N.W.2d 712 (1951).

The Supreme Court stated roughly 40 years ago: "No clear and definite line can be drawn as to residential use of premises. It is a safe rule that the usual, ordinary and incidential use of property as a place of abode does not violate a covenant restricting such use to 'residence purposes only', but that an unusual and extraordinary use may constitute a violation." Wood, supra, 304 Mich. at 288-289, 8 N.W.2d 67. The Wood Court also wrote that a business or professional use may not violate a residential use covenant so long as the nonresidential use was casual, infrequent or unobtrusive and was not detrimental to the property values of neighbors.

The plaintiff contends that the fact that defendants receive compensation for taking care of the [113 MICHAPP 327] children renders the operation a business and thereby violates the covenant. We do not find this to be the pivotal question. In Wood, the Court found a violation of the covenant even though the venture was purely noncommercial. In O'Neal v. Hutt, 28 Mich.App. 295, 299, 184 N.W.2d 297 (1970), the Court determined that a psychologist could consult or meet with others for the planning or writing of books, articles or papers, which would generate income, and that that activity would not violate a residential use covenant. The receipt of compensation may be a factor to consider but its existence or absence is not controlling. Instead, the focus must be on the activity involved and how it parallels the ordinary and common meaning of use for residential purposes.

Child caring and rearing violates a residential building and use restriction when it involves boarding ten children and conducting summer school for as many as fifteen. Nerrerter v. Little, 258 Mich. 462, 243 N.W. 25 (1932). The defendant in Nerrerter was licensed by the state to take care of ten children. The Court held: "The gathering together of a large number of children into one group by a person who makes it a business to board and room them for pay is a distinct violation of the restriction." Id., 466-467, 243 N.W. 25. We agree with the Nerrerter Court but find the large number of children, the seven-days-a-week overnight rooming and boarding of the children, and the business aspect of that case distinguish it from this one.

The size of the group of children was also a critical factor in Berry v. Hemlepp, 460 S.W.2d 352 (Ky.1970). Neighboring property owners in Berry brought action against an operator of a child day care center on the basis that the center activities violated restrictive residential use covenants. Mrs. [113 MICHAPP 328] Berry conducted a licensed child care business which was so listed in the telephone directory. She had built an additional room and bath on her house to accomodate the children she kept daily. She also employed a full-time worker. The number of children cared for six days a week ranged between 15 and 25. The Kentucky Court of Appeals correctly decided that Mrs. Berry was violating the covenant. The Berry Court noted that in Davis v. Hinton, 374 S.W.2d 723, 727 (Tex.Civ.App., 1964), the Court of Appeals tangentially decided that the operation of a day nursery did not violate a residential use covenant. Shoaf v. Bland, 208 Ga. 709, 69 S.E.2d 258 (1952), was also cited in Berry. The Georgia Supreme Court in Shoaf held that a trial court had not abused its discretion in denying an injunction based on a finding that operation of a kindergarten in a home did not, as a matter of law, violate a residential use covenant.

The activities involved in this case are on a much smaller and less intrusive scale than those in Nerrerter or Berry. Mrs. Zinger, by state regulation, cares for no more than seven unrelated children at a time. The preschool age children are cared for in the home and the adjoining yard, in the manner Mrs. Zinger cares for her own children. The only observable factor which would indicate to an observer...