BLOOMFIELD ESTATES IMPROVEMENT ASSOCIATION, INC v CITY OF BIRMINGHAM
Docket No. 130990
Supreme Court of Michigan
Decided July 18, 2007
479 MICH 206
Argued April 10, 2007 (Calendar No. 1)
In an opinion by Justice MARKMAN, joined by Chief Justice TAYLOR and Justices CORRIGAN and YOUNG, the Supreme Court held:
- The use of the lot both as a park and as a dog park violatеs the deed restriction that limits the lot‘s use to “strictly residential purposes only.” The term “residential” refers to homes where people reside. Moreover, because the deed restriction permits only a “single dwelling house” to be built, the restricted land may be used solely for a “single dwelling house” and immediately related purposes. Therefore, the phrase “strictly residential purposes only” precludes the use of the lot as a dog park.
- The plaintiff may enforce the deed restriction despite the plaintiff‘s failure to contest the use of the lot as a park because the use of the lot as a dog park constitutes a “more serious” violation of the deed restriction. The violation is “more serious” because it
involves the erection of a permanent structure on the lot, creates continuous and systematic use of the lot whereas previous use was irregular, affirmatively encourages people to bring their dogs to the lot whereas dogs were previously prohibited from it, and generates more traffic in the surrounding neighborhoods.
Justice CAVANAGH concurred in the result only.
Affirmed and remanded to the trial court for the entry of an order of summary disposition in favor of the plaintiff and for the determination of the appropriate remedy.
Justice KELLY, joined by Justice WEAVER, dissenting, disagreed with the determinations by the majority that the use of the lot in question as a dog park violates the deed restriction and that the plaintiff can enforce the restriction even though it failed to object to the use of the lot as a park for over 75 years. By defining “residential purposes” to include only single dwelling houses and immediately related purposes, the majority reduces other language in the deed restriction to a redundancy and violates well-established rules of construction that restrictions on the otherwise free use of land must be explicit in terms and cannot be enlarged or expanded by construction and that restrictive covenants are to be strictly construed against the party seeking to enforce them and all doubts resolved in favor of the free use of property. The Supreme Court should follow the definition of “residential purposes” adopted by most other states and hold that covenants restricting property to “residential purposes” merely limit the use of the property to living purposes as distinguished from businesses or commercial purposes. A use that is of the same nature as a previous, unobjected-to use does not amount to a flagrant violation. A dog park is of the same nature as a park. The plaintiff waived the right to object to the use of the lot as a dog park by acquiescing in the use of the lot as a park for over 75 years. The judgment of the Court of Appeals should be reversed and the judgment of the trial court should be reinstated.
1. COVENANTS — WORDS AND PHRASES — RESIDENTIAL — SINGLE DWELLING HOUSE.
A deed restriction limiting use of land to “residential” purposes and permitting only a “single dwelling house” to be built indicates that the intended use is as a “single dwelling house” and immediately related purposes.
2. COVENANTS — ACQUIESCENCE — WAIVER.
A plaintiff may contest a “more serious” violation of a deed restriction, even if that plaintiff has not contested less serious violations of the deed restriction in the past.
3. COVENANTS — ACQUIESCENCE — WAIVER — SERIOUSNESS OF SUBSEQUENT VIOLATION.
A “more serious” violation of a deed restriction occurs when a particular use of property constitutes a more substantial departure from what is contemplated or allowable under a deed when compared to a previous violation; that is, use that constitutes a “more serious” violation imposes a greater burden on the holder of a deed restriction than the burden imposed by a previous violation.
Kemp, Klein, Umphrey, Endelman & May, P.C. (by Raymond L. Morrow and Ronald S. Nixon), for the plaintiff.
Beier Howlett, P.C. (by Timothy J. Currier and Jeffrey S. Kragt), for the defendant.
MARKMAN, J. We granted leave to appeal to consider: (1) whether the use of a park as a “dog park” violates a deed restriction limiting use of the land to “residential purposes only“; and (2) whether a plaintiff has waived the ability to challenge a violation of a deed restriction when the plaintiff has failed to challenge less serious violations of the deed restriction in the past. We affirm the judgment of the Court of Appeals that use of land for a “dog park” violates a deed restriction limiting use of the land to “residential purposes only.” Moreover, we also affirm the judgment of the Court of Appeals that a plaintiff may contest a “more serious” violation of a deed restriction, even if such plaintiff has not contested less serious violations of the deed restriction in the past. Accordingly, we remand this case to the trial court for the entry of an order of summary disposition in favor of plaintiff, and for a determination of the appropriate remedy.
I. STATEMENT OF FACTS
In 1915, the Bloomfield Estates Company recorded deed restrictions on lots in the Bloomfield Estates
Springdale Park has been used over the years for a variety of park-related activities, including those that might be characterized as involving unusual amounts of noise. For example, the park has been used for dances, Girl Scout camping, and baseball games. However, the Girl Scout camping and the dances did not occur on land burdened by the deed restrictions. Although baseball games took place on lots burdened by the deed restrictions in 1947, plaintiff requested that defendant cease allowing baseball games on these lots. Defendant responded by stating that “restrictions will be placed on the use of the park,” and “it is not our intent to use Lots 57 and 58 for baseball games.” Another 1947 letter challenged a building on Lot 42 that violated the deed restrictions, and defendant responded by stating that it would remove the building. In 1951, plaintiff again challenged the use of restricted lots for baseball games
In 2003, plaintiff became aware that defendant planned to use Lot 52 of Springdale Park as a “dog park,” a fenced area within which dogs could roam unleashed. Plaintiff alerted defendant that plaintiff would enforce its rights under the deed restriction if the dog park was built. In 2004, defendant built the dog park. At the time the dog park was erected, dogs were not allowed in Springdale Park, and signs indicated that dogs were prohibited. Plaintiff filed suit against defendant, seeking enforcement of the deed restriction and injunctive relief against use of Lot 52 as a dog park. Plaintiff also asked the trial court to order defendant to tear down the fence.
Defendant moved for summary disposition under
Plaintiff appealed to the Court of Appeals, and the Court of Appeals reversed in a split decision. Unpublished opinion per curiam of the Court of Appeals, issued March 14, 2006 (Docket No. 255340). The Court
The dissenting judge would have held that plaintiff could not object to the use of Lot 52 аs a dog park, because “common sense would suggest that while [Lot 52] has been a park for the past seventy-five years, people have brought their dogs to this park.” Id., slip op at 2. For that reason, the use of Lot 52 as a dog park did not constitute a “‘more serious violation of the deed restrictions.‘” Id. We granted defendant‘s application for leave to appeal. 477 Mich 958 (2006).
II. STANDARD OF REVIEW
We review de novo the grant or denial of a motion for summary disposition. Saffian v Simmons, 477 Mich 8, 12; 727 NW2d 132 (2007). The scope of a deed restriction is a question of law that is reviewed de novo. Terrien v Zwit, 467 Mich 56, 60-61; 648 NW2d 602 (2002).
III. ANALYSIS
A. VIOLATION OF DEED RESTRICTION
A deed restriction represents a contract between the buyer and the seller of property. Uday v City of Dearborn, 356 Mich 542, 546; 96 NW2d 775 (1959). “Undergirding this right to restrict uses of property is, of course, the central vehicle for that restriction: the freedom of contract, which is ... deeply entrenched in the common law of Michigan.” Terrien, supra at 71 n 19, citing McMillan v Mich S & NIR Co, 16 Mich 79 (1867). The United States Supreme Court has listed the “right to make and enforce contracts” among “those fundamental rights which are the essence of civil freedom.” United States v Stanley, 109 US 3, 22; 3 S Ct 18; 27 L Ed 835 (1883). We “respect[] the freedom of individuals freely to arrange their affairs via contract” by upholding the “fundamental tenet of our jurisprudence ... that unambiguous contracts are not open to judicial construction and must be enforced as written,” unless a contractual provision “would violate law or public policy.” Rory v Continental Ins Co, 473 Mich 457, 468, 470; 703 NW2d 23 (2005) (emphasis in original). As one court has stated:
Courts do not make contracts for parties. Parties have great freedom to choose to contract with each other, to choose not to do so, or to choоse an intermediate course that binds them in some ways and leaves each free in other ways. [Rarities Group, Inc v Karp, 98 F Supp 2d 96, 106 (D Mass, 2000).]
The deed restriction at issue here states:
Each lot or lots shall be used for strictly residential purposes only, and no buildings except a single dwelling house and the necessary out-buildings shall be erected or moved upon any lot or lots except that Lot 1 may be used for four dwelling houses and the necessary out-buildings, and that three houses may be erected on Lots 40 and 41. [Emphasis added.]
The deed restriction limits the use of restricted land to “strictly residential purposes only.” The term “residential” means “pertaining to residence or to residences.” Random House Webster‘s College Dictionary (1997). “Residence” means “the place, esp[ecially] the house, in which a person lives or resides; dwelling place; home.” Id. The term “residential” in the deed restriction thus refers to homes where people reside. By using the terms “strictly” and “only,” the deed restriction seeks to underscore or emphasize that restricted land may only be used for this purpose.
This conclusion is bolstered by the remaining language in the deed restriction, which states that “no buildings except a single dwelling house and the necessary out-buildings shall be erected or moved upon any lot or lots.” This language indicates that when the deed restriction refers to “residential purposes,” the intended use is as a “single dwelling house” and immediately related purposes. The only exceptions listed—“that Lot 1 may be used for four dwelling houses and the necessary out-buildings, and that three houses may be erected on Lots 40 and 41“—further clarify that the
Because use of the restricted land as a park violated the deed restriction, the use of Lot 52 as a dog park violated the deed restriction as well. Our prior holdings support this conclusion. Cf. Wood v Blancke, 304 Mich 283, 288-289; 8 NW2d 67 (1943) (The raising of 40 carrier pigeons for private use did not constitute use for “residence purposes.“). Defendant argues that the deed should be construed to allow a broad range of activity to be considered “residential.” Although our courts have noted that “[a] restriction allowing residential uses permits a wider variety of uses than a restriction prohibiting commercial or business uses,” Beverly Island Ass‘n v Zinger, 113 Mich App 322, 326; 317 NW2d 611 (1982), those cases have concerned a landowner who was using his or her home for business purposes in addition to residential use. In Beverly, the Court of Appeals permitted a homeowner to run a small day care facility from her home because this use was indistinguishable from the use rеsulting if the homeowner “simply ha[d] a large family.”2 Id. at 328. In Miller v Ettinger, 235 Mich 527; 209 NW 568 (1926), we allowed a landowner burdened by a restriction that the land be used “solely for residence purposes” to build an apartment building on the land. Here, Lot 52 is being used as a park, and prospectively as a dog park. Neither of these uses involves the use of Lot 52 as a dwelling place, and consequently these uses do not conform to the deed restriction.
Thus, use of Lot 52 as both a park and a dog park violates the deed restriction, which limits the use of the land to “residential purposes only.”
B. CONTESTING USE OF LOT 52
Defendant argues that, even if the deed restriction was violated by use of Lot 52 as a dog park, plaintiff cannot enforce the deed restriction in light of its acquiescence to prior violations of the deed restriction. That is, defendant contends that the deed restriction was effectively waived.
With regard to whether a restriction has been waived, we likewise have said that “whether or not there has been a waiver of a restrictive covenant or whether those seeking to enforce the same are guilty of laches are questions to be determined on the facts of each case as presented.” [Id., quoting Grandmont Improvement Ass‘n v Liquor Control Comm, 294 Mich 541, 544; 293 NW 744 (1940).]
We have found that waiver did not occur if a plaintiff “promptly filed” suit “[w]hen it became apparent to plaintiff that the owner of [a restricted lot] was about to use it for commercial purposes [in violation of a deed restriction].” Baerlin v Gulf Refining Co, 356 Mich 532, 536; 96 NW2d 806 (1959). Defendant assеrts that plaintiff‘s failure to “promptly file” suit to preclude the use of Lot 52 as a park effectively waived plaintiff‘s ability to contest the use of Lot 52 as a dog park.
Plaintiff argues, however, that though it has never contested the use of Lot 52 as a park, it may still contest the proposed use of Lot 52 as a dog park. In Jeffery v Lathrup, 363 Mich 15; 108 NW2d 827 (1961), we stated
The dog park constitutes a “more serious” violation of the deed restriction than the previous uses of Lot 52. First, the dog park includes a permanent structure—an enclosed, fenced area—on Lot 52. Before the dog park, no such structures existed on the restricted lots. Second, the dog park will create continuous and systematic use of Lot 52, whereas previously the use of the restricted lots was irregular and sporadic. Third, the dog park will affirmatively encourage people to bring their dogs to Lot 52. Before Lot 52 was used as a dog park, dogs were prohibited from the park by posted “No
Because plaintiff has previously objected to “more serious” violations of the deed restrictions that also raised similar concerns of noise and the erection of permanent structures on restricted land, plaintiff has not, in our judgment, waived its ability to contest this “more serious” violation.
Defendant raises several arguments in opposition to the application of this rule. It argues that the park had previously been subject to noisy uses, and thus plaintiff acquiesced to noisy uses of the park, pointing to the park‘s previous use for overnight Girl Scout camping, large dances, and baseball on permanent baseball diamonds. However, these uses occurred in sections of the park that were unburdened by the relevant deed restrictions.11 Defendant would thus require plaintiff to object to “violations” of the deed restriction that occurred on unrestricted land, i.e., land uses that simply did not violate deed restrictions. However, plaintiff would have no authority or basis on which to object to violations of deed restrictions that did not apply to the land on which
Defendant also argues that allowing plaintiff to contest the dog park after acquiescing to the park itself will permit those with the right to enforce deed restrictions to “pick and choose” which violations will be tolerated. However, allowing a plaintiff to enforce a deed restriction against a “more serious” violation does not grant that plaintiff an unlimited right to “pick and choose” which violations to allow and which violations to contest. A plaintiff can only contest “more serious” violations of the relevant deed restriction. Therefore, a plaintiff who acquiesces to one violation is thereafter prevented from contesting violations of an equivalent nature. However, a plaintiff who acquiesces to a seemingly innocuous violation would not forever be prevented from challenging more serious violations.
IV. RESPONSE TO THE DISSENT
The dissent first concludes that the dog park constitutes a “residential” use under the terms of the deed restriction. To reach this conclusion, instead of simply examining the language that the parties themselves employed, the dissent defines the terms in the deed restriction by considering how other states have construed altogether different deed restrictions.13 This in-
terpretative technique fails for two reasons. First, the intent of the parties is properly determined from the words used by the parties themselves, not from the decisions of foreign (or even Michigan) courts addressing different deeds containing different language. Second, the majority of the cases cited by the dissent involve deed restrictions that merely limit the use of property to “residential purposes,” and hence are readily distinguishable.14 Furthermore, Baker v Smith, 242 Iowa 606; 47 NW2d 810 (1951), merely held that a restriction limiting use to a “dwelling place” did not preclude use as an apartment building. The instant case obviously does not involve the use of Lot 52 as a residence in any form. See also Isbrandtsen v North Branch Corp, 150 Vt 575; 556 A2d 81 (1988) (restriction limiting use to “single-family residence purposes only” did not preclude an owner from inviting guests to spend the night).
After arguing that the dog park is a “residential” use, the dissent further concludes that, even if the dog park is not “residential,” it does not constitute a “more serious” violation of the deed restriction. The dissent principally relies on Cherry to conclude that a “more serious” violation did not occur because a “dog park is of the same nature as a park.” Post at 238. However,
In rejecting our determination that the dog park constitutes a “more serious” violation, the dissent criticizes this opinion by arguing that “there are no court findings” in support of our conclusion that the dog park constitutes a “more serious” violation. Post at 239. However, no “court findings” are necеssary. When a city affirmatively encourages the use of a park for a purpose that previously has been prohibited,15 the record supports the conclusion that a “more serious” violation is shown because some number of people will, in fact, use the park for that purpose.16
In conclusion, the dissent‘s argument that the parties intended to include a dog park within the ambit of “residential” use erroneously relies on foreign precedent rather than on the actual language used by the parties to the deed restriction. Moreover, although the dissent relies on Cherry to support its claim that a “more serious” violation did not occur here, Cherry does not support its argument because, unlike the instant case, the prior use in Cherry was indistinguishable from the use objected to. Further, the dissent‘s arguments that the dog park is not a “more serious” violation of the deed restriction fail to demonstrate that we have improperly applied the relevant factors in this case.17
acknowledging several times at oral argument that “we don‘t know when the [‘No Dogs‘] sign went up.” Even supposing that dogs were permitted in the park for some unknown period before their prohibition, the dissent simply ignores the difference between an occasional dog in the park and the regular and continuous use encouraged by a dog park.
V. CONCLUSION
We affirm the Court of Appeals holding that the use of Lot 52 both as a park and as a dog park violates the
TAYLOR, C.J., and CORRIGAN and YOUNG, JJ., concurred with MARKMAN, J.
CAVANAGH, J. I concur in the result only.
KELLY, J. (dissenting). This is a dispute over a dog park. Three years ago, defendant city of Birmingham fenced off one acre of property in a city park1 to allow dogs to run off-lead under the supervision of their owners. Plaintiff Bloomfield Estates Improvement Association, Inc., sued to block defendant from this use by seeking to enforce a deed restriction that limited portions of the park to residential purposes. A majority of this Court holds that using the lot as a dog park violates the deed restriction. It also holds that plaintiff can enforce the deed restriction even though plaintiff failed to object to use of the lot as a park for over 75 years. Because I disagree on both points, I respectfully dissent.
FACTS
This case arises out of defendant‘s use of lot 52 of Bloomfield Estates Subdivision. Deed restrictions on
In 2004, defendant fеnced off a grassy part of lot 52 to be used exclusively as a dog park.2 After construction of the off-leash dog area, plaintiff, which had been deeded the rights of Bloomfield Estates Company in 1955, sued to close the dog park. Defendant moved for summary disposition, and the trial court granted the motion, finding that plaintiff had not shown that defendant‘s use of the lot violated the deed restriction. Plaintiff appealed. In a two-to-one decision, the Court of Appeals reversed. Unpublished opinion per curiam of the Court of Appeals, issued March 14, 2006 (Docket No. 255340). The Court of Appeals majority found that use of the lot as a park violated the deed restriction. It also found that plaintiff had acquiesced in the use and that plaintiff could no longer seek enforcement of the deed restriction against that use. However, the majority limited the acquiescence to the actual use to which plaintiff had acquiesced. And because it found that a dog park was a
Plaintiff aрplied for leave to appeal in this Court. We granted the application and directed the parties to include among the issues to be briefed “whether the use of Bloomfield Estates Subdivision lots in Springdale Park violates the deed restrictions, whether plaintiff is estopped from seeking enforcement of the deed restrictions, and what remedies may be available if there are violations of the deed restriction.” 477 Mich 958 (2006).
STANDARD OF REVIEW
This court reviews de novo a decision whether to grant or deny a motion for summary disposition. Haynes v Neshewat, 477 Mich 29, 34; 729 NW2d 488 (2007). The scope of a deed restriction is also reviewed de novo. Terrien v Zwit, 467 Mich 56, 60-61; 648 NW2d 602 (2002).
USING THE LOT AS A DOG PARK DOES NOT VIOLATE THE DEED RESTRICTION
The relevant portion of the deed restriction provides that lot 52 must be used for residential purposes. The initial consideration, therefore, is whether a dog park is consistent with a residential purpose. If it is, then the restriction has not been violated. Only if use as a dog park is not a residential purpose must the Court decide whether to enforce the restriction against the dog park.
In giving meaning to the phrase “residential purpose,” an important concept should be considered. This Court has long held that restrictions on the otherwise free use of land must be explicit in terms and cannot be enlarged or extended by construction. In re Nordwood Estates Subdivision, 291 Mich 563, 568; 289 NW 255 (1939). As recently as eight years ago, we reiterated our rule: restrictive covenants are to be strictly construed against the party seeking to enforce them and all doubts resolvеd in favor of the free use of property. O‘Connor v Resort Custom Builders, Inc, 459 Mich 335, 340; 591 NW2d 216 (1999).
Although Michigan courts have been called on to construe restrictions containing language similar to the covenant involved here, no Michigan court has ever explicitly defined the phrase “residential purpose.” The majority now does that. In giving meaning to the phrase, it relies heavily on a dictionary and defines “residential purpose” to include only “a ‘single dwelling house’ and immediately related purposes.” Ante at 215. On the basis of this definition, the majority finds that use as a dog park is not a residential purpose.
The majority‘s decision is flawed for several reasons. First, ignoring this Court‘s long-established principle of construction, it construes the deed restriction against, not in favor of, the free use of property. The majority spends pages discussing the right to contract, never even mentioning the fundamental right of a landowner to use his or her property as he or she sees fit.3 Because of the vital importance of this right, any restriction on
Second, the majority‘s definition essentially reads language out of the deed restriction. The full restriction provides that “[e]ach lot or lots shall be used for strictly residence purposes only and no buildings except a single dwelling house and the necessary out-buildings shall be erected or moved upon any lot or lots....” There are two components to the restriction, one limiting the use of the lots to residential purposes and a second prohibiting “buildings except a single dwelling house and the necessary out-buildings.” By defining residential purposes to include only single dwelling homes and immediately related purposes, this Court reduces to a redundancy the language prohibiting buildings other than single dwelling houses. If residential purposes include only “a ‘single dwelling house’ and immediately related purposes,” then the language in the restriction explicitly limiting buildings to single dwelling houses would be unnecessary. It is well established that a construction that would entirely neutralize part of the language that is being construed should be discarded. See, e.g., DeBoer v Geib, 255 Mich 542, 544; 238 NW 226 (1931).
Because the majority‘s dictionary-derived definition of “residential purposes” violates well-established rules of construction and reduces other language in the restriction to a redundancy, it must be rejected. In its place, I would accept the definition adopted by most other states.
Here are but a few of them: In 1994, the Indiana Court of Appeals decided whether the defendants’ use of their property as a baseball facility violated a restrictive covenant limiting the property to residential purposes. Bagko Dev Co v Damitz, 640 NE2d 67, 68 (Ind App, 1994). Because the covenant did not define the term “residential purposes,” the court found it necessary to give it meaning. Id. at 70. After reviewing caselaw from other jurisdictions, the court concluded that a use is for residential purposes as long as the use is “‘distinguishable from commercial or business use.‘” Id. at 70 (citation omitted). And because the defendants were not using the baseball diamond for business or commercial purposes, the court held that the restrictive covenant had not been violated. Id. at 71.
Similarly, in 1992, the New Hampshire Supreme Court decided that using property as a dock did not violate a deed restriction that limited its use to residential purposes. Voedisch v Town of Wolfeboro, 136 NH 91, 96; 612 A2d 902 (1992). The court held that “covenants restricting the use of property to ‘residential purposes’ merely limit the use of the property to living purposes as distinguished from business or commercial purposes.” Id.
And in 1985, the Texas Court of Appeals was called upon to decide whether building a tree house on a lot violated a residential purposes restriction that ran with the deed. Winn v Ridgewood Dev Co, 691 SW2d 832, 833 (Tex App, 1985). The court held:
The term “residential purposes” requires the use of property for living purposes as opposed to business or commercial purposes. Considering only the evidence favorable to the jury‘s finding, we can find no evidence that Lot 2 was not being used for living purposes. Since there was no evidence that Lot 2 and the treehouse were being used for business or commercial purposes, the only logical conclu-
sion is that it was being used for “living purposes” and that the character of the treehouse is consistent with a residential use. [Id. at 835 (citations omitted).]
These three decisions are illustrative of how other states have treated residential purposes restrictions. They are far from exhaustive. As recognized by the American Law Reports, “[a]s a general proposition, restrictive covenants built around the terms ‘residence’ or ‘residential purposes‘... merely limit the use of the property to living purposes as distinguished from business or commercial purposes.”5 Many more state court decisions have employed the same reasoning.
These decisions not only reflect the weight of authority across the country, they are consistent with Michigan caselaw. See, e.g., O‘Connor, 459 Mich at 340 (“‘[a] restriction allowing residential uses permits a wider variety of uses than a restriction prohibiting commercial or business use‘“) (citation omitted); Beverly Island Ass‘n v Zinger, 113 Mich App 322, 326; 317 NW2d 611 (1982) (“A restriction allowing residential uses permits a wider variety of uses than a restriction prohibiting commercial or business uses.“).
It is not uncommon for this Court to adopt other states’ definitions of legal terms when those states have grappled with similar facts and law.6 In this case, I would take instruction from some of these jurisdictions and hold that covenants restricting property to residen-
Here, nothing suggests that the dog park has any business or commercial purpose. Rather, owning dogs and walking them is a typical, generally accepted activity for the residents of Birmingham. Accordingly, because a dog park for residents is a living use of municipal land, I would hold that the deed restriction has not been violated.7 The trial court was correct and its decision should be reinstated.
PLAINTIFF WAIVED THE RIGHT TO OBJECT TO USE OF THE LOT AS A DOG PARK
Because I would hold that the use as a dog park is a residential purpose, I find it unnecessary to determine whether plaintiff waived the right to enforce the deed restriction. But, because the majority holds that plaintiff can enforce it, I will offer my thoughts on this issue.
The majority finds that plaintiff is estopped from contesting use of the lot as a park. Lot 52 has been in a park for at least 75 years. Plaintiff was well aware of this use. Yet, at no time did it object to or take action to stop it. Even now, plaintiff does not ask the Court to prevent lot 52 from reverting to being part of Springdale Park. Even if it did, the majority opines, equity would bar plaintiff from preventing use of the land as a
Nonetheless, the majority holds that plaintiff may challenge use of the lot as a dog park. The reason it gives is that a dog park is a more serious violation of the deed restriction than a city park. Once again, I disagree.
In Boston-Edison Protective Ass‘n v Goodlove, this Court was called upon to decide whether the plaintiff homeowners association was estopped from enforcing deed restrictions limiting the property in question to single dwelling houses. Goodlove, 248 Mich at 627. The defendant, a practicing physician, had incorporated his medical office into his home and worked there for years without objection. Id. at 628. When the defendant, because of increasing business, decided to build an office building on the land, the plaintiff objected, claiming that this use violated the deed restrictions running with the property. The issue was whether the plaintiff had waived the right to enforce the restriction by failing for years to object to use of the property as a doctor‘s office. Id. at 629. The Court decided that the plaintiff could enforce the restriction. It stated:
While it is true that there has been no objеction made to the defendant‘s practicing medicine at his home and using it as a doctor‘s office where patients consulted him, nevertheless, the defendant should not be able to violate further rights of plaintiffs on account of his theretofore slight breach of the restrictive covenants in his deed. Plaintiffs are not estopped from preventing a most flagrant violation of the restrictions on account of their theretofore failure to stop a slight deviation from the strict letter of such restrictions. While it is true that by their acquiescence they may not be able to enjoin defendant from continuing to use
his present home to the extent that it has been heretofore used as a doctor‘s office, they are still in a position to stop the more serious violation of the restrictions that would result from the erection of a new or adjoining building, one story in height, without basement, etc., which does not conform with the restrictions of the subdivision. [Id. at 629-630.]
Accordingly, the general rule is that a plaintiff is “not estopped from preventing a most flagrant violation of the restrictions on account of their theretofore failure to stop a slight deviation from the strict letter of such restrictions.” Id. at 629 (emphasis added). See also Jeffery v Lathrup, 363 Mich 15, 22; 108 NW2d 827 (1961) (a deed restriction that has been violated in some degree “does not thereby become void and unenforceable when a violation of a more serious and damaging degree occurs“).
In Cherry, this Court applied this rule and decided whether the plaintiff property owners should be estopped from enforcing deed restrictions that limited use of certain property. Cherry, 254 Mich at 497-499. Despite the fact that the deed restricted the property to dwelling house purposes, the defendant planned to replace its existing church with a new church on the same property. Id. at 499. Ultimately, this Court refused to allow the plaintiffs to enforce the deed restriction.
We are not impressed with plaintiffs’ claim that defendant‘s building program will constitute an extension of the violation of the building restrictions which has already been countenanced. It is true the new building as planned will be somewhat larger, will occupy a different portion of the lots and will face on Dexter boulevard instead of Joy road. But a church is a church; and it cannot well be asserted that only so much of a church site as is actually occupied by the edifice located thereon is used for church purposes. It is common practice to use the adjacent lot area for parking purposes. It is by no means uncommon for
outdoor church gatherings to make use of the whole or any part of the church yard. Defendant clearly has the right so to use its premises. [Id. at 501.]
Cherry is important because it illustrates that a use that is of the same nature as a previous, unobjected-to use will not amount to a “flagrant violation.”9 Here, plaintiff acquiesced in the use of the lot as a park. Plaintiff objected only when defendant began using the lot as a dog park. A dog park is of the same nature as a park. Hence, because the proposed use is of the same nature as the unobjected-to use, plaintiff cannot enforce the deed restriction against the dog park. Indeed, just as Cherry determined that the plaintiffs there could not enforce the deed restrictions because “a church is a church,” plaintiff here cannot enforce the deed restriction because a park is a park.10
The majority reaches the opposite conclusion and decides that a dog park is a more serious violation. In so doing, it considers a number of statements presumably drawn from the briefs and affidavits used during the
No factual findings were ever made to suggest that the dog park has brought continual and systematic use of lot 52 where before the use was irregular. Yet, the majority relies on this as a fact. The majority also assumes that establishment of the dog park required a
Another serious fault of the majority decision is that it effectively gives people broad discretion to pick and choose which violations of the restrictive covenant will be tolerated. This will encourage someone to try to enforce a restriction after a very minor change in usage. Using today‘s decision, a plaintiff could disregard for years a use that is arguably contrary to a dеed restric-
As a result of the above problems, the majority‘s approach should be rejected. In its place, I would hold that a use that is of the same nature as a previously unobjected-to use cannot amount to a “flagrant violation.” And because a dog park is of the same nature as a city park, I would find that plaintiff cannot enforce the deed restriction that runs with lot 52.
CONCLUSION
The city of Birmingham has set aside a small fenced portion of one of its parks for the use of city residents and their dogs. Nothing indicates that this grassy acre, called a “dog park,” has actually occasioned annoyance to anyone in the area. There is no evidence that it has been heavily used, is noisy, smelly, or has drawn increased automobile traffic. On the contrary, during the past three years, the dog park appears to have admirably filled a genuine need of dogs and dog owners in the community. It has provided a spot where canine pets can exercise off-leash, safely, under supervision, and without disturbing people.
The only nonspeculative objection raised about this community service is that a deed restriction, confining the land to residential purposes, outlaws it. On this basis, a majority of the Court has effectively closed the dog park. Presumably, now, the land will again be used as a city park, as it was for more than 70 years before. In that way, in the eyes of the law, the use will be proper.
I have great difficulty accepting that the use of this land as a city park conforms to the deed restriction
No one claims that the dog park exists for a business purpose or for an industrial purpose. In a legal sense, what other purpose remains, aside from a residential purpose? Most other courts have followed this reasoning and have defined a residential purpose to include such things as a baseball diamond, a boat dock, and a tree house. I agree with them.
But even if I did not, and assuming the use is nonconforming, the time has long since passed when plaintiff could be heard to complain. For over seven decades, plaintiff‘s members have acquiesced in the use of this property as a park. Even now, they express no displeasure in it once again reverting to parkland. But they object to the dog park. How can it be that the Court allows plaintiff to pick and choose which nonconforming use of the land to object to and which to ignore? Surely, in the eyes of the law, after all these years, plaintiff has waived its claim.
This decision is a doggone shame. It has alarming implications for tomorrow‘s interpretations of restrictive covenants in Michigan. And, coming as it does during the dog days of summer when all four-legged creatures long to romp outdoors unrestrained, it marks a howling defeat for Birmingham‘s canine residents.
WEAVER, J., concurred with KELLY, J.