Craig v. Bossenbery

• Court: Court of Appeal of Michigan
• Writing for the Court: GRIBBS; McGregor
• Citation: Craig v. Bossenbery, 134 Mich.App. 543, 351 N.W.2d 596 (Mich. App. 1984)
• Decision Date: 12 July 1984
• Docket Number: Docket No. 68499,No. 3,P,3
• Parties: William E. CRAIG, Marie E. Craig, Duane D. Kuzak, Martha L. Kuzak, Individually and as representatives of all persons owning or having an interest in land in the Lake Oakland Woods Subdivisionlaintiffs-Appellees, v. Patrick R. BOSSENBERY, an Individual and Kay-Jan, Inc., a Michigan Non-Profit Corporation, Jointly and Severally, Defendants-Appellants. 134 Mich.App. 543, 351 N.W.2d 596

Page 596

351 N.W.2d 596

William E. CRAIG, Marie E. Craig, Duane D. Kuzak, Martha L Kuzak, Individually and as representatives of all persons owning or having an interest in land in the Lake Oakland Woods Subdivision No. 3, Plaintiffs-Appellees, v. Patrick R. BOSSENBERY, an Individual and Kay-Jan, Inc., a Michigan Non-Profit Corporation, Jointly and Severally, Defendants-Appellants.

Docket No. 68499.

134 Mich.App. 543, 351 N.W.2d 596

Court of Appeals of Michigan.

Submitted Dec. 19, 1983.

Decided May 14, 1984.

Released for Publication July 12, 1984.

[134 MICHAPP 544] Stern, Milmet, Vecchio, Goll & Carnago, P.C. by Donald E. Schuster, Detroit, for plaintiffs-appellees.

Garrett & Rogers, P.C. by Jon R. Garrett, Detroit, for defendants-appellants.

Before GRIBBS, P.J., and WAHLS and HOOD, JJ.

GRIBBS, Judge.

This case of first impression involves a restriction on adult foster care facilities. The plaintiffs are property owners in the Lake Oakland Woods Subdivision Number 3 in Independence Township. A subdivision use restriction limits subdivision lots to single-family dwellings. ¹ The [134 MICHAPP 545] defendants are a subdivision property owner, Patrick R. Bossenbery, and his lessee, Kay-Jan, Inc. Kay-Jan is licensed to provide adult foster care and supervision to six or fewer mentally retarded adults in a small group home. See M.C.L. Sec. 400.701 et seq.; M.S.A. Sec. 16.610(51) et seq. Kay-Jan is using Mr. Bossenbery's property as a small group home; this prompted the plaintiffs to sue to enjoin the use.

The Oakland County Circuit Court granted summary judgment for the plaintiffs and denied summary judgment for the defendants. The defendants appeal as of right.

The defendants argue that Michigan public policy considers a group of retarded citizens living together to be a "family", and thus the Kay-Jan home does not violate the restrictive covenant. Alternatively, they argue that public policy in Michigan strongly supports placing retarded citizens in normal community environments whenever possible and that this policy negates the covenant.

I. DEFINING "FAMILY"

In other cases this Court has interpreted "family" in various restrictive covenants broadly to allow group homes. The Court in Bellarmine Hills Ass'n v. Residential Systems Co., 84 Mich.App. 554, 269 N.W.2d 673 (1978), lv. den. 405 Mich. 836 (1979), was faced with a covenant which allowed only [134 MICHAPP 546] "one single private family dwelling" per lot. Bellarmine, 84 Mich.App. p. 557 n. 3, 269 N.W.2d 673. Relying on early Michigan Supreme Court cases, ² the Court held that "family" included six or fewer mentally retarded children and their resident foster parent.

In Malcolm v. Shamie, 95 Mich.App. 132, 290 N.W.2d 101 (1980), a similar covenant permitted only single family dwellings. The Court, noting that the living arrangement was not a temporary one, held that "family" included five mentally retarded adult women living with a foster parent.

A restrictive covenant allowing only single private family dwellings was interpreted in Leland Acres Homeowners Ass'n, Inc. v. R.T. Partnership, 106 Mich.App. 790, 308 N.W.2d 648 (1981), to include six mentally disabled adults with 24-hour supervision as a "family".

Another panel applied the preceding cases to a home providing care for six or fewer mentally retarded adults in Livonia v. Dep't of Social Services, 123 Mich.App. 1, 333 N.W.2d 151, lv. gtd. 418 Mich. 874 (1983). That panel also interpreted "family" in a restrictive covenant liberally to include the residents of a small group home.

A related case allowed a woman to operate a family day care home in a residential neighborhood. Beverly Island Ass'n v. Zinger, 113 Mich.App. 322, 317 N.W.2d 611 (1982). The Beverly Island case, however, is distinguishable from the other covenant cases. In Beverly Island the Court was interpreting language in a covenant which provided that "no lot or building plot shall be used [134 MICHAPP 547] except for residential purposes." 113 Mich.App. 324, 317 N.W.2d 611. The Court's opinion addressed only the meaning of "residential purposes" and did not involve the definition of "family". 113 Mich.App. 331, 317 N.W.2d 611. ³

To date, only one case from this Court has contradicted the preceding set of cases. In Jayno Heights Landowners Ass'n v. Preston, 84 Mich.App. 443, 271 N.W.2d 268 (1978), lv. den. 405 Mich. 828 (1979), this Court ruled that "family" did not include six elderly residents of a group home. Judge McGregor dissented, stating that he would follow the holding of Bellarmine Hills and liberally interpret "family". 84 Mich.App. 449, 452, 271 N.W.2d 268.

Other panels have attempted to harmonize the differing results of Bellarmine Hills and Jayno Heights. The Court in Malcolm v. Shamie, supra, correctly pointed out that Jayno Heights involved a commercial venture while the organization in Bellarmine Hills was a government-subsidized nonprofit corporation. 95 Mich.App. 135, 290 N.W.2d 101. See also Leland Acres, 106 Mich.App. 796, 308 N.W.2d 648.

The Malcolm Court also attempted to distinguish Jayno Heights by saying that Bellarmine Hills involved the kind of structure which could be constructed while Jayno Heights involved the kind of structure which could be built and occupied. 95 Mich.App. 134-135, 290 N.W.2d 101. We believe this is a point without distinction. As Judge Bashara noted in the Bellarmine Hills opinion, "[w]here restrictive covenants describe the character of permissible structures to be erected upon the property, they also contemplate that use and occupancy of the [134 MICHAPP 548] property shall be commensurately restricted". 84 Mich.App. 559, 269 N.W.2d 673.

The defendants argue that the foregoing cases (with the exception of Jayno Heights ) demonstrate that the Michigan courts have, for public policy reasons, defined "family" to include residents of licensed foster care facilities. ⁴ Although there is merit in the defendants' public policy argument, we think the key element of the above cases was the absence of any definition of "family" in the various covenants. As such, there was an ambiguity open to judicial interpretation. See McMillan v. Iserman, 120 Mich.App. 785, 802, 327 N.W.2d 559 (1982) (McKenzie, J., dissenting).

Our case does not present an ambiguous term. Instead, "family" is clearly defined in the covenant:

"A family shall mean one person or a group of two or more persons living together and inter-related by bonds of consanguinity, marriage, or legal adoption. The persons thus constituting a family may also include foster children, gratuitous guests and domestic servants."

Covenants are contracts. 20 Am.Jur.2d, Covenants, Conditions, and Restrictions, Sec. 1, p. 575. Contractual terms are not subject to judicial interpretation unless they are ambiguous. Id., Sec. 185, pp. 752-753. Although "family" may be assigned many "flexible" meanings, see Boston-Edison Protective Ass'n v. Paulist Fathers, Inc., 306 Mich. 253, 259, 10 N.W.2d 847 (1943), the property owners here have prevented flexibility by ascribing a fixed, unambiguous defintion. The residents of the Kay-Jan home do not fit within the covenant's definition of "family". If the covenant is valid, the defendants are [134 MICHAPP 549] precluded from operating their group home in the subdivision. We now turn to the validity of the covenant.

II. PUBLIC POLICY

There is a strong policy supporting the right of property owners to enforce the restrictions of covenants affecting their land. Wood v. Blancke, 304 Mich. 283, 287-288, 8 N.W.2d 67 (1943). We will not, however, enforce contracts which violate public policy:

"If the contract is at war with the established interests of society, and is in conflict with the morals of the time, the fact that individuals may suffer can in no manner affect the question, as the interests of individuals must in many cases be subservient to public welfare." McNamara v. Gargett, 68 Mich. 454, 461, 36 N.W. 218 (1888).

See Oosterhouse v. Brummel, 343 Mich. 283, 72 N.W.2d 6 (1955) (restrictive covenants).

The policy supporting community placement of the mentally retarded is very strong. Recognizing the modern development of physical and mental rehabilitation beyond institutional treatment, the 1963 Constitutional Convention revised the narrow language of the 1908 Constitution. ⁵ See Const.1963, art. 8, Sec. 8, Convention Comment. The 1963 Constitution provides:

"Institutions, programs and services for the care, treatment, education or rehabilitation of those inhabitants who are physically, mentally or otherwise seriously[134 MICHAPP 550] handicapped shall always be fostered and supported." Const.1963, art. 8, Sec. 8.

The Michigan Legislature has affirmatively fostered and supported institutions, programs and services for the handicapped. The handicapped have special needs which must be served, yet the Legislature has determined that mainstreaming--bringing the handicapped back into the community where they can live more "normalized" lives--is a worthy goal. To support this goal the Legislature has enacted the now-repealed mandatory special education act, 1971 P.A. 198; Secs. 708 and 712 of the Mental Health Code, 1974 P.A. 258; M.C.L. Sec. 330.1708; M.S.A. Sec. 14.800(708); M.C.L. Sec. 330.1712; M.S.A. Sec. 14.800(712), the Michigan Handicappers' Civil Rights Act 1976 P.A. 220; M.C.L. Sec. 37.1101 et seq.; M.S.A. Sec. 3.550(101) et seq., and the 1977 amendments to the Township Rural Zoning Act 1977 P.A. 29; M.C.L. Sec. 125.286a; M.S.A. Sec. 5.2963(16a), and the County Rural Zoning Enabling Act, 1977 P.A. 30; M.C.L. Sec. 125.216a; M.S.A. Sec. 5.2961(16a). Most important is the Adult Foster Care Facility Licensing Act, 1972 P.A. 287, as amended by 1979 P.A. 218; M.C.L. Sec. 400.701 et seq.; M.S.A. Sec. 16.610(51) et seq. This statute provides for community placement when such placement is appropriate and institutionalization is not beneficial.

Judicial decisions based on the Adult...