Double D Manor, Inc. v. Evergreen Meadows Homeowners' Ass'n, 87SC246

• Decision Date: 24 April 1989
• Docket Number: No. 87SC246,87SC246
• Citation: 773 P.2d 1046
• Parties: DOUBLE D MANOR, INC. and Marjorie Rust, Petitioners, v. EVERGREEN MEADOWS HOMEOWNERS' ASSOCIATION, Lillian Pauline Miller, Robert Eugene Miller, William L. Weaver, Nancy Weaver, Theodore Ziegers, Marianne Ziegers, Coleman Gulley, and Mrs. Coleman Gulley, Respondents.
• Court: Colorado Supreme Court

Page 1046

773 P.2d 1046

DOUBLE D MANOR, INC. and Marjorie Rust, Petitioners, v. EVERGREEN MEADOWS HOMEOWNERS' ASSOCIATION, Lillian Pauline Miller, Robert Eugene Miller, William L. Weaver, Nancy Weaver, Theodore Ziegers, Marianne Ziegers, Coleman Gulley and Mrs. Coleman Gulley, Respondents.

No. 87SC246.

Supreme Court of Colorado En Banc.

April 24, 1989.

Holme Roberts & Owen, Edmond F. Noel, Jr., Katherine J. Peck, Denver, for petitioners.

Veto & Scott, Peter B. Scott, Lakewood, for respondents.

ROVIRA, Justice.

We granted certiorari to review the court of appeals' opinion in Evergreen Meadows Homeowners' Association v. Double D Manor, Inc., 743 P.2d 39 (Colo.App.1987). The court of appeals affirmed the trial court's order which declared that Double D Manor (Double D) violated a restrictive covenant governing the use of the subject properties and granted a permanent injunction against the use of the properties as a group home for the developmentally disabled. We conclude that the proposed use of the premises does not violate the restrictive covenant in question. Therefore, we reverse.

I.

The facts material to an understanding of this case were stipulated to by the parties. The stipulation reflects that Double D is a Colorado nonprofit corporation whose purpose is to provide a "home life" situation for developmentally disabled persons between the ages of five and twenty- one years. On September 1, 1984, Double D moved its staff and six developmentally disabled residents into a house on Lot 18 in the Evergreen Meadows subdivision (Subdivision), a residential community in Jefferson County, Colorado. After modification and enlargement of the septic system for the adjoining house on Lot 17, Double D located seven developmentally disabled persons there. The houses which Double D occupies are single-family dwelling structures. Double D has received a state license to operate these homes as "residential child care facilities" as defined in section 26-6-102(8), 11 C.R.S. (1982).

The residents of the homes are developmentally disabled children who are mildly or moderately emotionally disturbed. None of the children are legally or biologically related to any of the staff or employees of Double D. All meals are prepared, served, and consumed as a family unit. The various housekeeping chores are shared. The children attend public schools and participate in extracurricular activities at school. On occasion, the children go on recreational outings together.

Both homes are staffed by Double D employees. No employees permanently reside in one of the homes, and night supervision of the residents is provided by rotating staff members. A staff advocate is assigned to each resident. The staff advocate attends school functions and parent-teacher meetings with the child. The staff advocates, however, do not reside in the home with the children. The employees work in shifts and are responsible for the care of the residents and the operation and maintenance of the property. The employees consult outside professionals for the care of the children. The outside professionals do not treat the residents in the homes.

Less than a week after Double D began occupying one of the houses, several homeowners and residents of the Subdivision and the Evergreen Meadows Homeowners' Association (Association) commenced an action in the district court claiming that covenants contained in the deeds of all tracts of land within the subdivision precluded Double D's use of the property.

The covenants, which were recorded on the plat by the subdivider in 1969, and subsequently amended in 1978, provide that they are to run with the land and bind all parties claiming under them. The covenant, which, according to the Association, prohibits Double D's use of the subject properties, states:

All sites shall be for residential use only, with only one single-family dwelling permitted on any site.

After considering the stipulated facts and the briefs submitted by the parties, the trial court concluded that, "as a matter of law, [Double D's] use of the property as a group home for the developmentally disabled is not in keeping with the contemplated residential nature of the neighborhood, and violates the restrictive covenants governing the use by [Double D] of their land." The court went on to find that "the plain and unambiguous purpose expressed in [the covenant quoted above] is to restrict the use of the property to a single family residence." It also found that, while a state licensed group home for eight developmentally disabled persons is a residential use of the property for zoning purposes, "such is distinguishable from a situation such as this where property owners are seeking to enforce the provisions of restrictive covenants which run with the land." The trial court enjoined Double D from using the houses as group homes for the developmentally disabled, but stayed enforcement pending appellate review.

In affirming the trial court's order, the court of appeals concluded that the language of the covenant is clear, and "[n]othing within that language would indicate an intent that it govern only architectural design to the exclusion of use." Evergreen Meadows Homeowners' Ass'n v. Double D Manor, Inc., 743 P.2d 39, 40 (Colo.App.1987). The court of appeals also concluded that the phrase "single-family dwelling" "would not include a group residence for the developmentally impaired lacking the characteristics of a normal and permanent family unit maintaining the usual family-style living arrangement." Id. at 40.

Judge Tursi dissented, stating:

The covenant in this case is ambiguous since it is subject to two possible interpretations. The trial court followed one possible interpretation, finding "single-family" modified "residential use" such that the property could be used only for single-family residential purposes. However, the covenant can also be interpreted as two independent restrictions, a residential use restriction and a single-family structure restriction. I would adopt this second interpretation since it provides the least restriction on the use of the property.

Id. at 40-41 (Tursi, J., dissenting).

We granted certiorari on two issues: (1) whether the court of appeals erred in holding that a restrictive covenant which provides that "all sites shall be for residential use only, with only one single-family dwelling permitted on any site" constitutes both a usage restriction and a restriction on the type of structure; and (2) whether the court of appeals erred in holding that the phrase "single-family dwelling" excludes a group residence for developmentally impaired children.

II.

We first consider whether the phrase "single-family dwelling" constitutes a use restriction or only a structural restriction. To assist us in our task of interpretation, we look to section 38-34-103, 16A C.R.S. (1982), which provides in pertinent part: "Building restrictions and all restrictions as to the use or occupancy of real property shall be strictly construed...." Similarly, this court has stated the rule as follows: "[I]n construing a building restriction, all doubts must be resolved against the restriction and in favor of free and unrestricted use of property." Flaks v. Wichman, 128 Colo. 45, 48, 260 P.2d 737, 739 (1953). However, we have also recognized that this rule "has no application when the language is definite in its terms. One must follow the dictates of plain English." D.C. Burns Realty & Trust Co. v. Mack, 168 Colo. 1, 4, 450 P.2d 75, 76 (1969).

The Association argues that the phrase "single-family dwelling" restricts the use of the properties to single families only. Double D contends that the phrase is ambiguous because it can be interpreted as a restriction on the type of use and structure permitted or a restriction only on the type of structure allowed; therefore, the phrase must be construed in the least restrictive manner. Based upon our interpretation, we conclude that the phrase "single-family dwelling" describes only the type of structure permitted on the property and not the type of use that can be made of the property.

This interpretation is apparent when each part of the covenant is examined. The word "dwelling" is the object of the preposition "with." The term "single-family" is an adjective modifying the noun "dwelling." The entire prepositional phrase beginning with "with" modifies the subject of the sentence "site." It does not modify "use," which is the object of the preceding preposition "for." The assertion that "single-family" modifies both "use" and "dwelling" is not consistent with a plain reading of the sentence. The covenant as written restricts only the type of structure to single-family dwellings.

To understand this conclusion, it is helpful to examine another covenant applicable to the Subdivision. That covenant provides in pertinent part: "Each site shall provide at least a two-car family, non-business, garage which may be separate or attached." It is clear that the term "two-car garage" describes only a structural restriction. The Association would not argue that it limits the use of the garage to only housing two cars. Likewise, the phrase "single-family dwelling" limits only the type of structure permitted on any site. Cf. Omega Corp. v. Malloy, 228 Va. 12, 319 S.E.2d 728, 733 note (1984) (Thomas, J., dissenting) (In a case involving a similar issue, the dissent points out in an unnumbered footnote that "[n]o one would dispute that a 'two-car garage' may be used for purposes other than housing cars.").

Other jurisdictions which have addressed similar questions have concluded that the phrase "single-family dwelling" is merely a structural restriction. See, e.g., Clark v. Manuel, 463 So.2d 1276, 1279 (La.1985); Blevins v. Barry-Lawrence County Ass'n, 707 S.W.2d 407, 410 (Mo.1986); Knudtson v. Trainor, 216 Neb. 653, 345 N.W.2d 4, 8 (1984); Berger v. State, 71 N.J. 206, 364 A.2d 993, 997 (1976); J.T....