Mains Farm Homeowners Ass'n v. Worthington

• Decision Date: 05 February 1992
• Docket Number: No. 13085-8-II,13085-8-II
• Parties: MAINS FARM HOMEOWNERS ASSOCIATION, and Rod Grant, Individually, Respondents, v. Salima WORTHINGTON and Raymond E. Miller, Appellants.
• Court: Washington Court of Appeals

Page 171

64 Wn.App. 171

824 P.2d 495

MAINS FARM HOMEOWNERS ASSOCIATION and Rod Grant, Individually, Respondents, v. Salima WORTHINGTON and Raymond E. Miller, Appellants.

No. 13085-8-II.

Court of Appeals of Washington Division 2.

Feb. 5, 1992.

Review Granted May 5, 1992.

[824 P.2d 496] Alan Millet, Millet & Mauhar, Sequim, for Salima worthington.

Joseph Lavin, Taylor & Taylor, Port Angeles, for Raymond E. Miller.

Kenneth Williams, Johnson & Williams, Port Angeles, for Mains Farm Homeowners Ass'n & Rod Grant.

ALEXANDER, Judge.

Salima Worthington and Raymond E. Miller appeal an order of the Clallam County Superior Court. The order denied their motion for summary judgment and granted summary judgment to Mains Farm Homeowners Association for an injunction preventing Worthington from operating an adult family home in the Mains Farm Subdivision in Sequim. Worthington and Miller contend on appeal that the superior court wrongly concluded that: (1) the operation of an adult family home violated restrictive covenants limiting the use of the lots in the subdivision to "single family residential purposes only"; and (2) the restrictive covenants did not violate public policy. We affirm.

In December, 1986, Salima Worthington obtained a license from the Department of Social and Health Services to run what is referred to as an "adult family home." WAC 388-76-030(2). Worthington's license permitted her to provide full family care for up to four unrelated, elderly adults. Worthington ran the family home in a residence she rented in the Sol Mar area of Clallam County.

In December, 1987, Worthington purchased a home in the Mains Farm subdivision near Sequim. Worthington was aware at the time she purchased the home that there were restrictive covenants governing the subdivision. The pertinent restrictive covenant reads as follows:

All lots or tracts permitted in Mains Farm shall be designated as "Residence Lots," and shall be used for single family residential purposes only. (Italics ours.)

Worthington admits that at the time that she made the purchase she intended to operate an adult home facility in the residence. The Mains Farm Homeowner's Association eventually became aware of the intended use and, in January, 1988, the President of the Association sent a letter to Worthington stating that the Association's board of directors had decided that the proposed use of the residence violated the Mains Farm restrictive covenants. Nevertheless, Worthington continued with her plans to operate an adult family home facility.

After completing some remodeling of her home to accommodate four unrelated, elderly adults in need of "full family care," ¹ Worthington, together with her two daughters and four unrelated adults, moved into the home. Worthington generally provided the care to the elderly residents herself, but when unable to do so, she employed other persons to provide the 24-hour services in her stead. Worthington received compensation from the elderly residents in amounts ranging between $500 and $1,000 per month per person, depending on the degree of care required.

After making several additional requests that Worthington discontinue using her home for an "adult foster care commercial enterprise," the Mains Farm Homeowner's Association filed a complaint in the Clallam County Superior Court, alleging that Worthington's use of her home violated the restrictive covenants. It sought to enjoin Worthington from running the adult foster care facility in her home. The Association and Worthington filed cross-motions for summary judgment. The superior court granted the Association's motion and denied Worthington's. It concluded that Worthington's use of her home violated the restrictive covenants because the use was not "residential only," the "commercial elements" of the adult family home operation overriding the residential aspects of the use.

Initially, we observe that the issues in this case were ripe for summary judgment, the parties conceding that there are no material factual disputes about the nature of the activities carried on in Worthington's residence. Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. CR 56(c). On review of a summary judgment, this court reviews all questions of law de novo. Hoffer v. State, 110 Wash.2d 415, 755 P.2d 781 (1988).

MEANING OF THE RESTRICTIVE COVENANT

In order to determine if the trial court erred in ruling, as a matter of law, that Worthington's use of her home was not residential, we must look to the language of the restrictive covenant in question. We do this because, although courts should not give a covenant a broader than intended application, "it is well settled that a covenant should not be read in such a way that defeats the plain and obvious meaning of the restriction." The Lakes at Mercer Island Homeowners Ass'n v. Witrak, 61 Wash.App. 177, 180, 810 P.2d 27 (1991). The meaning of words in a restrictive covenant are questions of law for the court. Krein v. Smith, 60 Wash.App. 809, 811, 807 P.2d 906 (1991).

In construing the meaning of a covenant, clear and unambiguous language will be given its manifest meaning; restrictions in derogation of the free use of land will not be extended to include any use not clearly expressed; doubts will be resolved in favor of the free use of land; and the instrument containing the restriction will be considered in its entirety with any attendant circumstances taken into consideration when the meaning is doubtful.

Hagemann v. Worth, 56 Wash.App. 85, 90, 782 P.2d 1072 (1989). The words in the covenant should be given their "ordinary and common use." Krein v. Smith, supra.

As noted above, the superior court reasoned that Worthington's use of her residence was not for "single family residential purposes only" because of what it concluded In a strikingly similar case, Division Three of this court, after noting that the terms "business" and "residential" are antonyms, held that the providing of a residence for elderly paying customers is a business use and not a residential use. Hagemann v. Worth, 56 Wash.App. at 91, 782 P.2d 1072. In Hagemann, the covenant restricted building to "single family residences" and prohibited "business, industry or commercial enterprise of any kind or nature ..." Hagemann, 56 Wash.App. at 87, 782 P.2d 1072. The word "business" has been said to be "a very comprehensive term, ... embrac[ing] everything about which a person can be employed.... [t]hat which occupies the time, attention, and labor of men for the purpose of livelihood or profit." International Shoe Co. v. State, 22 Wash.2d 146, 169, 154 P.2d 801 (1945); State ex. rel. Columbia Broadcasting Co. v. Superior Court of King Cy., 1 Wash.2d 379, 383, 96 P.2d 248 (1939), reversed on other grounds, 310 U.S. 613, 60 S.Ct. 1085, 84 L.Ed.2d 1389 (1940). In Hagemann, the court observed that the word "business" in its ordinary and common use, is defined as "human efforts which have for their end living or reward." Hagemann, 56 Wash.App. at 90, 782 P.2d 1072, citing Burton v. Douglas Cy., 65 Wash.2d 619, 623, 399 P.2d 68 (1965), quoting Easterbrook v. Hebrew Ladies Orphan Soc., 85 Conn. 289, 299, 82 A. 561 (1912). We reach the same conclusion about the activity here as did the court in Hagemann. The use Worthington intended to make of her home was essentially a business use. It was inconsistent with a residential purpose.

                were "commercial element[s]" of the adult family home operation.   Worthington argues to us, as she did at the trial court, that the use of her home as an adult family home was not violative of the restrictive covenants, because the use was for "single family residential purposes only," and not for a commercial enterprise.   We disagree
                

In support of her position, Worthington cites Hunter Tract Improvement Co. v. Corporation of the Catholic Bishop of Nisqually, 98 Wash. 112, 167 P. 100 (1917), a case in which the court was faced with a claim that the use of a residence as a convent for the We do not find the opinion in Hunter to be inconsistent with Hagemann. In Hunter, the court determined that simply because occupants of a house were members of a particular group and were holding religious services did not convert an essentially residential use to a business or commercial use. It held that the use that the Order made of their home was mainly residential and that any other use was incidental to that residential purpose. Hunter, 98 Wash. at 115, 167 P. 100. The court did acknowledge, however, that if the home had been used for the training of women who were seeking admission to the convent, the home might lose its residential character. Hunter, 98 Wash. at 115, 167 P. 100.

                Ursuline Catholic Sisterhood violated a covenant restricting the use of any lots described in the deed to "residence purposes only".   The court concluded there that the use of the home as a convent was a residential purpose because the restriction of use for " 'residence purposes' referred to the mode of occupancy, and so long as the building was used as a place of abode and no business was carried on there, it would be used for residence purposes only."  Hunter, 98 Wash. at 117, 167 P. 100
                

The use that Worthington made of her home is unlike that which the court reviewed in Hunter. It is more akin to the use in Hagemann. Worthington's use of her home for a commercial purpose was not incidental to the residential purpose. Rather, the residential purpose was incidental to the business purpose. The uncontroverted facts are that Worthington provides 24-hour care to four elderly residents for fees of $500-$1000 per person per month. In addition, she occasionally hires outside help to assist her in this enterprise. Although a purpose of this enterprise was to provide a residence for elderly persons, a substantial entrepreneurial purpose was at the core of her efforts.

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