*1 others, Plaintiffs-Respondents, v. Knapp, Crowley, others, Defendants-Appellants.
Supreme Court Argued September 10, March 1980. No. 76-398. 1979. Decided (Also reported 815.) N.W.2d *3 HEFFERNAN, attempt- J. This case arises out the ed enforcement of restrictive deed to two covenants lots in an area known as “Meadowlane” in the outskirts Chien, pur- Prairie du property Wisconsin. The was Knapp chased wife, Donald F. and his Bette (hereafter Knapp Knapps), M. purpose the for the establishing a non-institutional home for retarded adults. Neighbors, property who took their title to from a com- grantor, brought enjoin mon an action to the defendants using grounds purpose from this the for the on court, the violated restrictive af- covenants. enjoined trial, ter a the defendants from the use of the finding upon as a residence retarded adults Knapps following had the violated the deed coven- ants: “1) use of said shall be restricted single family dwelling, of one construction with a one or garage, pur- two car and shall used for be residential only. poses outbuilding garage “2) part No of the same shall time, any residence at
be used as a either before or after construction the residence.” finding respect
Although specific made no enjoined violated, the de- the court also the covenant activity carrying any on commercial from fendants en- appeal Knapps is from the premises. The judgment. tire undisputed question whether, on the based
The basic facts, property as a state-li- defendants’ use housing eight censed, run-for-profit group residence require- covenant unrelated retarded adults violated the . property’s to . . “shall be restricted ment that the use dwelling single family purposes . . . for one residential however, addressed, only.” question can Before that neighboring plaintiffs, it must be determined whether grant- landowners, common their titles from a who derive incorporated or, in a covenants can enforce restrictive they parties. deed to which are not original landowners that the The record demonstrates parcel known as Meadowlane were Clarence 28, Ahrens). (hereafter On March Mildred Ahrens Wright conveyed L. a lot to E. and Linda Ahrens Gerald Wrights), plaintiffs ac- are in this (hereafter conveyed May 10,1968, a lot the other Ahrens tion. On Crowley (hereafter plaintiffs, M. John F. and Eileen conveyed day, Crowleys). Ahrens lots two On same Mary (hereafter A. to Franklin A. Weeks conveyed property, Weeks). of this It is question 2,1973, in this Knapps which is on November conveyance initial At the time of the action. *4 by marked Wrights, lot of the Ahrens’ was each subsequently lots con- Each of the Meadowlane stakes. subject veyed by to restrictive covenants Ahrens substantially applicable to to those which identical property. Knapps’ privy not plaintiffs in this case were to the re- The in the deed from covenants Ahrens to the strictive Knapps. from the or the deed Weeks Weeks although land position Knapps that, an owner take the conveyed, may impose upon portion those restrictions grantor right personal in the restrictions create a apparent or it from of the instrument unless is the face right implication inure to is clear fair that will grantees acquiring title the same the benefit of other differently, owner of one tract. Stated the fact that the enforcement of restrictive lot would be benefited conveying nearby covenant in a lot to another deed party not entitle to enforce the covenant does the former privity contract, no unless it is shown where there is grantor, parties from a common derived title imposed that the restrictions were benefit seeking lot, party the coven- other that the enforce knowledge purchased of, in con- ant his lot with the of, sideration the restrictions: justify adopted
State courts have different theories the enforcement of restrictive covenants one containing privy instrument the covenant sought May generally, Annot., to be enforced. See Who seq. Covenant, Restrictive 556 et 51 A.L.R.3d Enforce seq. (1973); 2d, et Covenants, 20 Am. Jur. sec. Wisconsin, private deed this court has enforced theory grantor im- on covenants the common sold, posed parcel with restrictions each general making lots scheme mind of the individual According purchasers. to this more attractive to all contract, theory, privity absence of an- even may purchaser other of land the same tract enforce the original covenant when there is evidence show grantor carry general inserted the covenant out a development. plan question, then, scheme grantor, Ahrens, placed the common re- whether purpose carry- in the deed for the strictive covenants ing general plan development, which was to in- out grantees. of other ure to the benefit *5 426 repeatedly “general
This court accepted plan has determining or scheme person doctrine” in whether a purchasing property particular may in a tract invoke equitable powers of the court to enforce a covenant privy. Representative to which he was approv cases ing theory Prospect relief on this are v. Manor Ward Corp., 534, 188 (1926) ; Boyden Wis. 206 856 v. N.W. Roberts, 131 659, (1907). 111 Wis. court N.W. 701 recently most stated the doctrine in Hall v. Church Open Bible, 246, 4 (1958). Wis.2d N.W.2d The court said: “It is a well-established rule that a covenant restrict- ing use, land proprietor to residential inserted in a conveyance lands, of his inures to the benefit of all the purchasers purpose carry- where is inserted for the ing that it general out plan development, scheme equitable at constitutes least an upon servitude
land, property right constitutes valuable which a equity court of will enforce in the absence of facts and making circumstances equitable.” unjust such enforcement or in- The trial court specifically Crowleys held that the Wrights, grantees, the common proper parties restrictions, enforce the because it found: “That it was the intent purpose Ahrens adopt general create and plan or scheme for a sub- division to be known as Meadowlane Addition which single would contain family dwellings used exclu- sively for purposes residential . . . .”
A finding trial court’s respect grantor’s of fact in to a intention to create a running restrictive covenant with the land is weight entitled to the same appeal as are findings other of fact a court. Guy Clark v. Drews Post, 247 48, 18 Wis. N.W.2d 322 (1945). Accordingly, *6 finding contrary accepted court’s must unless great weight preponderance clear evidence. Our examination of record con- shows that Ahrens sistently substantially inserted into identical covenants original the Meadowlane deeds. he made con- When his veyances, put Ahrens stated that he intended to the same property, restrictions on all in- the Meadowlane and he representative put structed real his estate the same remaining any property deed restrictions on Meadowlane when it Additionally, was sold. when sold the Ahrens parcel, first the entire Meadowlane tract had been staked showing out, plan disposition that a common for the of all the Meadowlane existed from at least 1968. general plan assert, however, The defendants that a development proved only can be if there was evidence plan conveyances existed when the initial were Crowleys May 10, made to the 1968. Weeks and the on argue cognizable legally The defendants no there was only subdivision that date and that from the pattern conveyances subsequent any evidence gleaned argue can be plan. Knapps of a common general plan original that no existed at the time conveyance property eventually acquired by Knapps, that, therefore, the covenants the chain Knapps acquired title which the only by privies enforceable to those deeds.
The record shows that the trial court considered not representations the conduct and of the common grantor original prior at and conveyance, to the but also subsequent selling considered his conduct in other Mead- parcels. owlane
Boyden Roberts, supra, Prospect v. and Ward v. Man Corp., supra, general plan conclude that the or scheme for the subdivision could be ascertained from the common grantor’s prior conveying any manifestation of intent
part Although prior aof defined area. such manifesta- general plan, tions of intent are sufficient to show court Wisconsin not restricted the examination occurring original conveyance. prior conduct at In Eckhoff, Schneider v. 206 N.W. Wis. grantor’s (1926), court intent stated that general development plan create a could be deter- best by examining pattern all of his mined manifested conveyances. Schneider, whether the court considered grantee could residence-retail build- build combination ing containing platted in a deed subdivision individual court stated: restrictions. The *7 question “The serious involved this branch case of consists whether or not the evidence warrants the original grantors general adopted a conclusion the plan designed only or scheme which was not for the bene- grantors’ remaining fit of benefit property the but for the also grantees parcels the various lots or sold assigns. case, and their or successors ... the instant general if plan adopted, it be held a scheme or it must follow from the execution of the various deeds containing . . . respective the purchasers. restrictions the Whether not these restrictions were intended for grantees largely the benefit the matter inten- gathered tion, and only this intention can be not from the nature and form of the deeds themselves but from all the surrounding facts (pp. 556-57) and circumstances.” Perhaps significantly, most said, the court in Schneider “Even the last restrictions, deed contained these which evidentiary fact is of .” (p. value . . 558) . in Thus, Schneider, the conveyances court examined not the parties involved, subsequent but also examined conveyances subsequent by conduct common grantor as general adopt evidence of his intent plan grantees for the benefit of other of the lots. judge
The in applied trial the instant case the rationale v. Green, stated in Tubbs 151, 161, Del. Ch. 55 A.2d (1947). Therein the court said: "Implicit very plan creation of a residential practice inserting residential in deeds restrictions plan immediately the fact that evolves and not does Therefore, agree burst into full I bloom. cannot imposed subsequent restrictions posed im- the date of those may on defendant’s not be considered determining plan whether a residential was created.” accept explicitly ap- We statement Tubbs and prove expression an law. conclude Wisconsin We judge that the trial appropriately applied law Wisconsin grantor’s when conveyances he all examined the common determining and all of intent manifestations that there general plan awas The restrictive scheme. covenants part plan which equitably of that could be en- grantees forced all of the whose from titles derived grantor. judge common found facts contrary plan development show common are not great weight preponderance to the and clear of the evi- judge correctly dence. The trial determined that Crowleys Wrights, although privy and the particular conveying question, instrument the land in had right to enforce the contained covenants therein. principal question appeal, to be resolved on this however, is whether the defendants’ use *8 found, the violates restrictive covenants. The trial court fact, they as were in of violation restrictive coven- finding 2 fact, 1 and of ants the A of deed. if it indeed one, cannot contrary be be reversed it is unless great weight preponderance clear and of the evidence. However, inapplicable is that rule if is what labeled aas finding essentially fact of is conclusion of law. Boutelle 665, Chrislaw, 673, v. 84 150 (1967). Wis.2d N.W.2d 486 restricting of the construction terms of an ordinance property question use of is a law the of when there is no respect dispute in the prop- evidence the use of the 430 Ad-
erty. v. International, Board Ltd., Browndale of 199-200, 121 justment, 182, N.W.2d Wis.2d per- findings applies of fact (1973). The same rule taining ex private See, rel. deed State restrictions. 501, 508, 297 Hills, Bollenbeck 237 Wis. v. Shorewood dispute no the (1941). there about Because N.W. ques- property, the of the Meadowlane defendants’ use posed law, in- and the trial court’s tions are matters terpretation to no deed of the restrictions entitled weight appeal. special on concerning prop- of the
A review the facts use erty is, however, appropriate. The record shows defendants, Knapp Bette M. 1972 the Donald F. organized corporation Lori Knapp, known as a business organized operate Knapp, corporation Inc. This was child- for a non-institutional care home retarded successfully. suggestion operated At the ren. This home representative Department of a Wisconsin Knapps Services, Health and undertook Social type for of a similar home establishment residential negotiated July 1973, Knapps retarded adults. purchase adjacent of two lots from the for Weeks. large property on Located which residence purpose. Weeks, for could be made suitable this Ahrens, their title from the com- above, recited secured negotia- May grantor, In the mon 1968. course tions, told the defendants that Weeks might restrictive contained covenants which deed prevent group construed provided: part restrictions These home. “The real described in the estate annexed deed is sold following conveyed subject to restrictive coven- ants, in full which force and effect shall be hereafter and running in the nature covenants shall be with the land which, by acceptance conveyance, of this shall grantee grantees his,
bind her or their suc- title, cessors to-wit: *9 “1) The shall be restricted said single family dwelling, or construction of with a one one garage, purposes car two and shall be used for residential only. “2) garage outbuilding part No or of the same shall or any time, used after be residence at either before or construction of the residence. “7) No shall or residence remodeled constructed any
which will house more than one residence be nor shall higher than two stories. “13) activity No or noxious offensive trade shall nor shall be carried on premises, or conducted on the anything an may be done therein or which become thereon annoyance neighbors. nuisance the “14) any Invalidation these one of covenants any any Court in no pro- shall wise affect of the other visions which shall in full .” remain force effect . . . proceeding
Prior to transaction, with Knapps Crowleys Wrights told the plan pur- and the their explained chase the its intended use. Before closing Knapps, of the sale between the and the Weeks Crowleys Wrights and the served written notice stating they objected prop- the intended use of the erty because it violated restrictive Al- covenants. though the offered to Weeks release the from defendants contract, Knapps purchased property. the sales deed contained the covenants The restrictive set forth above. Knapps Knapp then leased the to the Lori using
Corporation. property, a Before number of im- provements premises, made to alterations were most of which was notable the conversion of the garage Through two attached into bedrooms. co- Department operation of Health Wisconsin Services, Knapp, Inc., Lori defendant, secured Social mentally eight occupants adult retarded as volunteer building of the home. was used residents as a resi- *10 432 living
dence, persons on the shared and the dining living room, common of the house —the areas they meals room, ate their rooms —and recreation during day to attend together. They left the house of them county-operated development center and some a They they paid. jobs apparently for were had which they functioning “high persons,” were able in were personal needs and assisted with to take care of their couple cooking nonprofessional housekeeping. A and the feed the on full-time to at the house basis resided eight occupants parental in role for the and to serve voluntarily eight on residents lived there residents. therapy permanent professional or No care basis. to purpose of the home was in the house. The available living for retarded provide a environment residential part of com- to enable them become citizens munity. provides: See, 46.03(22) 1977, (d), which see. Stats. “ Community living arrangements. (22) community living capacity “(d) arrangement for 8 awith A any purposes persons permissible use for be a or fewer shall single-family or limits use of deed covenant which pro- expressly 2-family . Covenants deeds which residences. . . arrangements community living are use of hibit policy.” against public void as 205, part of 1977 was enacted as of ch. Laws This subsection legisla- 28, (A.B. 383), March 1978. The statement effective purpose accompanying provides: tive this subsection Legislative purpose. legislature finds that 1. “SECTION relating language up- be statutes codes should present emphasis prevent- dated to take into consideration legislative ing reducing judicial institutionalization setting ap- provide treatment in the mandates propriate least restrictive change emphasis of the individual. This needs corrections, occurred as the result recent has advances programs. legislature’s health and social service It is mental public safety by enabling promote health, intent and welfare persons be otherwise would institutionalized to live in normal hastening settings, thus their return to their residential own home Although that, the evidence before the es- indicates home, plaintiffs were concerned tablishment the activities at the home would create a common- annoyance, law nuisance or be an is uncon- evidence problems that these retarded adults created no tradicated annoyance neighborhood. in the crucial court Two conclusions the trial must ex- light ap- uncontroverted It amined facts. finding parent that the trial the defendants court’s living prohibits in violation of which covenant *11 garage matter outbuilding, in a erroneous a as they by supervision the providing the need without them with living. To expense of institutional and structured environment community living arrange- potential, maximize a its rehabilitative not in- does ment should be located a residential area which of the facili- clude other facilities. The residents numerous such other resi- to the ties should be able to live a manner similar legislature ordinances The finds that dents of the area. community living arrangements to bar all should not be used arrangements of the families in all since these resemble senses might except not related. the that the residents word for fact legislature which restrict that deed covenants The also finds community arrangements living prohibit the use of for achieving contrary governmental purpose of these are goals. the vital legislature concern The believes these matters statewide by establishing the criteria which restrict can be achieved limiting community living arrangements density of while the types in residential which can exist number of facilities atmosphere having appropriate neighborhoods for the resi- an neighbor- dents, thereby preserving character a established community.” hood and argue applica- litigation parties to the instant did not The bility resolve to the case before us. Because we of this statute statute, do present to resort the 1977 we case without need the not consider whether prior it voids restrictive covenants. express legislative note, however, intent under- that the doWe harmony elementary prin- lying ciple provision, with the above favoring and unrestricted use of law free “persons land, be institutionalized enable who otherwise would is to settings.” residential to live in normal building used had been portion which fact. The by Knapps not garage prior purchase was a to the as portion of outbuilding, main an attached to the but was alterations, Although garage prior the house. immediately defendants, upon purchase, converted raising remodeling included area into two bedrooms. contiguous house to conform to that the floor carpeting, adding lights, insulation, windows, interior building drapes. plan floor of the remodeled part be used the structure could shows that no garage prohibit con- purposes. Covenant does contrary garage It was version of a into bedrooms. garage that a trial to conclude evidence for the court remodeling, being After used as a residence. was integral part an and bore the area of the residence garage. no resemblance to grantor, the cov- concluded
The court also single properties’ enant, use to intended to restrict “occupied group people residences marriage related to one another blood or single dwelling housekeeping who resided such unit.” reaching conclusion, judge the trial construed “family” in covenant to mean
the term the restrictive *12 by consanguinity only persons who are related those marriage. inspection An of the covenants themselves that the of the covenant did not makes it obvious drafter “family” “Family” in that manner. is used with- define out definition. consistently public policy
This court holds that favors property. Accordingly, and of the free unrestricted use zoning in contained deeds and in ordinances restrictions strictly construed to must be favor unencumbered and property. Benedict, of McKinnon v. free use 38 Wis.2d ; 607, 619, (1968) 157 665 State ex rel. N.W.2d Bollenbeck Village 501, Shorewood 237 Hills, v. Wis. 297 N.W.
435 (1941); County v. Adjustment, 568 Cohen Dane Board 87, 91, (1976). 74 246 Cohen, Wis.2d In we N.W.2d Rathkopf, Zoning Planning (4th cited 1 The Law p. ed.), 9, 9.1, proposition ch. at restrictions on the use of in are to be construed favor provision A free use. either in a or in ordinance derogation a deed purports operate restriction which the free expressed clear, use of must be unambigous, peremptory terms. employed This rationale was in Missionaries La Bay,
Salette v. 267 Wis. N.W.2d Whitefish (1954). Village case, Bay, of Whitefish zoning ordinance, purported prop- to restrict the use of erty particular dwellings. single-family district “family” The ordinance defined in- “one or more living, eating sleeping, cooking, dividuals single housekeeping (p. as a 611) Salette, unit.” In La building neighborhood in a occupied residential group lay priests brothers, at no time eight lay exceeded in number. The two brothers did housekeeping prepared and served the meals. priests performed religious lived at the home but their Village argued Bay duties elsewhere. The of Whitefish “family” meaning the term was restricted to a group of individuals related to one another blood or marriage. relying disagreed, upon public This court placed upon policy that the use of restrictions land must strictly stated that a violation construed. We of a zon- ing only plain ordinance can occur when there disre- gard by express imposed court, of limitations words. relying upon supra, Bollenbeck, said: “ restricting the use of land are ‘Covenants construed against strictly claiming most vor of free and one their benefit and in fa- property; use of unrestricted a violation plain occurs covenant when there is a dis- ” regard imposed by express of the limitations its words.’ (p. 614) *13 applic- equally rule pointed
The out that this is court building zon- private and able to deed restrictions of ing court that the Missionaries held ordinance's. Lady of the not in violation La Our of Salette zoning not ex- restriction, did the ordinance because “family” not re- pressly all who are a to' exclude define marriage relationship. The court by or lated blood stated: legislative body pleasure when of the “Had it been defining ‘family,’ dis- excluded in the to have the word any dwelling situated, a
trict of there group not one another blood of related to individuals might a marriage, Since there or complete it have done so. any limitation, it clear of seems absence such legislative the use that intent restrict was not the single family occupancy related members 615) degrees consanguinity affinity.” (p. within meaning ordinary court went on discuss word, “family”: “It is to be noted aside from definition ‘family’ ordinance, ordinary concept of term in the necessarily imply group that term not bound does relationship. ties of “ Origin- ‘Family’ is derived from Latin ‘familia.’ slave, accept- ally the word meant but servant or now its living body persons to- definition ed gether collective house, management one under the same subsisting directing in common, and attention head their object, promotion in- to a mutual common their happiness.” terests and social Salette, term, “family,” In La this court said that the necessarily meaning group did exclude from its living together persons unrelated in a home. The court eight priests lived, cooked, held slept, single upon premises as a housekeeping ate unit were not in It violation ordinance. concluded “family,” term, would import not be construed to consanguinity requirement affinity between
437 parties requirements expressly when set those were not By dicta, by forth. expanded holding the court stat- its ing: arrangement appears “The than be no different group teachers, nurses, etc., of a col school some capacity, acquire premises,
lective
the
the
same
as a
group,
pursue
residence for the
their avocations
away
place.”
from the
(pp. 616-17). 2
similarity
The factual
between the
oc-
nature
the
cupancy of
persons
Knapp
the priests and the
the
home
striking,
term, “family,”
imposing
is
and the
used in
the
purported restriction
La
identical.
Salette held
is
legal
family may
usage,
unless otherwise
a
defined,
group
live,
mean a
people
sleep, cook,
eat
upon
single
the
housekeeping
as a
unit. More-
over,
commonly
pointed
Salette,
as was also
out in La
understanding
legal
“family,”
held
term,
like its
usage,
necessarily imply only
group
not
“does
a
bound
by
relationship.”
meaning
ties of
Id. at 615. If the
limited,
that term is
further
limitation must be
expressly
Salette,
stated. As in La
the restrictive coven-
present
“family”
ant in the
did
case
not define
abe
group
consanguinity marriage.
related
or
2 Because in the
case now before
court we
conclude that
occupants
Knapp
of the Lori
Meadowlane Home
did not violate
express
deed,
restrictions of the
we do not address
ourselves to
equal protection question
“family”
whether
definition of
lim
consanguinity
marriage
ited to
would withstand attack as an
See,
Kenkel,
Timberlake v.
classification.
F.
unconstitutional
369
Supp.
(1974),
in which
held that
definition of
village zoning
term, “family,”
requiring
in a
ordinance
blood
marriage relationship
being
was unconstitutional
in violation of
equal protection
clause
the United States Constitution.
Village
Timberlake held
While
of Shorewood’s ordinance
equal protection,
constituted state action in violation of
we note
judicial
similarly
enforcement
state
court
offensive
private deed restriction would also constitute state
Bar
action.
Jackson,
Shelley
(1953);
Kraemer,
rows v.
It policy of this state upon a restriction of land that restriction the use when accordingly imposed by con- express terms.3 We occupancy re- clude that the adult of the home tarded deed residents did not violate the restrictive covenants. supported
This court’s dis conclusion is further this *15 International, v. Board Ad cussion in Browndale Ltd. justment, (1978). 121 In 60 208 Wis.2d N.W.2d violated the Browndale, this court the use found County zoning ordinances, Dane because: principally “The use of not even for is living Rather, purposes. primary is residential its provide emotionally and care treatment for disturbed children.” psychiatric
The children in Browndale
were there
and medical care. The court harkened
to the lan-
back
guage
stating:
of La Salette,
3
any authority whatsoever,
Without reference to
the dissents
ignore
private
concept
restrictions,
the fundamental
deed
like
building
strictly
ordinances,
and
must be
construed in
property.
favor of the free and unrestricted use of
authors
dissenting opinions interpret
largely
the covenant
on the basis
grantor’s probable
position
intent. That
is erroneous as a
law,
only
grantor
expressly
matter of
because
the intent
as
Eckhoff,
set forth in the covenant is relevant. Schneider
v.
550, 556,
(1926), explicitly
Wis.
N.W. 838
holds that one does
amorphous general
not look to
determining
an
intent in
the mean
ing
words, but,
instead,
very
restrictive
must look to the
words used:
original
it had been the intention of the
“[I]f
owners
exclude
business,
easily
all
readily
such intention could
have been
expressed.
most, may
At
it
language
be said that
used in the
meaning,
restriction
doubtful
its
doubt,
and in such a case all
general rule,
under the
should be resolved in favor of the free use
purposes by
thereof for all lawful
the owner of the fee. See numer-
digested
ous cases
cited
in the annotations in
An additional between Browndale distinction important. Browndale, In this court found vio- case is zoning because Browndale’s sole ordinance, lation of the zoning County purpose commercial. Under the Dane was regulations, permitted no commercial establishment was one-family-use in a district. case, are
In the instant we confronted not with a zon- ing ordinance, pri- but with a restrictive in a covenant in the vate deed. The covenants deeds here do not fore- purposes. close the use of the for commercial they fact, specifically provide noxious or “[n]o noteworthy on. It is trade” shall be carried offensive commercial prohibition whatsoever of is no there the coven- to be derived from use. A reasonable inference permissible if not “noxious ant is that commercial use is one, annoyed no or offensive.” use any of- or attempt noxious and no was made to show fensive trade. This applicable. Browndale not
The rationale Browndale, properly ac- court, excluded commercial in zoning tivity, because, ordinances under the scheme any express- law, adopted pursuant use Wisconsin County ly permitted prohibited. See, v. Dane Cohen supra. Adjustment, Hence, under Board of any Browndale, commercial use was banned ordinances hierarchy use, prohibited or in a residential zone. No applies interpretation of restrictive cov- allowed, in the by covenants, enants. a land use is restricted When unequivocal. expressed and Commercial use be must here, covenants im- per se was not banned or offensive plication a commercial use not noxious was Nothing in authorized permissible. the deed restrictions enjoin any property. commercial use of the court although equi- that, plaintiffs had the conclude We right covenants contained in to enforce restrictive table no covenant violated. deeds, all the Meadowlane present enjoining judgment the defendants from the land of their must reversed. Judgment reversed,
By cause remand- Court. — injunction. with directions to dissolve ed part DAY, (dissenting concurring part). J. part judgment affirm that of the trial court I would question enjoining facility use of the “as a persons who are not or home for related blood *17 marriage.” con- which acquired property deed Knapps
The restricting The ones its use. tained certain covenants question are: before us restricted “(1) The of said shall one single family dwelling, awith of one
the construction garage, residential car and shall be used or two purposes only. outbuilding garage part same “(2) of the or or No any time, or before at either as a residence shall be used after construction of the residence.” bought purpose of property Knapps for the The eight running boarding un- profit house house for mentally plus adult cus- two related retarded adults purchase operation. In the offer to run the todians to Knapps property that made it was stated Industrial Com- “subject approval of Wisconsin offer multi-family-residen- (for use as mission intended fully buyers use restric- tial).” aware The were the offer placed on at the time of tions this purchase. at the time plaintiffs’ Knapps knew of
The record shows prior proposed use of the objection to the agreement. purchase of their consummation correctly coven- majority opinion holds general develop- plan question part ants right Crowleys Wrights had the ment that enforce. terminology restriction majority faults being defining “family” those re- limited to
for not marriage. the term I would hold blood lated meaning commonly given held must be persons ordinarily give term, i.e., related people marriage. All are not al- blood, adoption terms in the absence ways in contracts or deeds and defined showing a modification an included definition meaning particular con- ordinary of a as used in the term *18 442
text, generally accepted I would hold that the definition apply. of the word should legislature term, “family” it
When has used the has generally commonly accepted used it of its terms meaning. Thus, says 245.001(2), 1975, sec. Stats. part: Marriage . . “. is the institution that is the founda- family society.
tion ed.) (Emphasis . . .” add- legislature designated has also as November Wis- consin month, 1975, says 256.171, sec. Stats. “to principles family responsi- focus attention on the bility spouses, parents, children and well on the as as importance marriage stability and the home for well-being. (Emphasis added.) our future .. .” 102.07(5) (c), legislature sec. Stats. 1975, de- “family corporation” fines a corporation farm as a whose marriage.1 stockholders are related blood or statutory None of “family” these of the word uses encompass eight would concept unrelated adults living falling with two custodians as within the defini- “single family.” tion of The case of Missionaries La Salette v. Of Whitefish
Bay, 267 Wis. (1954), N.W.2d 627 relied on majority distinguishable. , zoning In that case a single ordinance restricted use of certain family dwellings. However, the ordinance defined “fam- ily” living, as “one or more sleeping, individuals cook- ing eating single housekeeping aas unit.” 267 atWis. 611. The ordinance thus defined in Employe (5) (c) “102.07. ‘family defined A ... ... farm corporation’ corporation engaged farming means all of whose shareholders are related as lineal descendants, ancestors or lineal spouses, brothers, sisters, uncles, aunts, cousins, sons-in-law, daughters-in-law, fathers-in-law, mothers-in-law, brothers-in-law, or sisters-in-law such lineal ancestors or lineal descendants.” “family” purposes specific terms what Having term, Court this ordinance. defined the living eight religious order concluded that members together as unit met of the ordinance. the definition us in the before have no definition ease We such “family” interpret in the sense word should *19 Wrights original grantor Ahrens, and here and the Crowleys undoubtedly it, in ordi- interpreted is its nary meaning. “family” import in the Whitefish
To the definition of things Bay tois confuse some to the case at bar ordinance upon i.e., “live, may do, and cook eat sleep, that families single housekeeping a unit” what premises a with as family is.2 disagree majority opinion in the
1 with conclusion similarity the nature of that “the factual between priests persons Knapp home occupancy ‘family’ imposing the striking, the term used is purported is restriction identical.” dissimilarity contrary is is the factual what
On “striking.” majority’s comparison aof commercial The living boarding order, to a monastic commun- house Lady ity,3 Missionaries of Our La such as the Salette ignores culture. a and a half western millennium religious order, of a vows bound
The members religious together, carry devotions live, on work long addressing “father” or “brother” has other as each 2 frog almost, “A is a bird — leaps almost, he he When flies — sings he he croaks When —almost.” Anon. one can “It’s a miracle how roof cover such diverse characters family. name of one maintain the Abbot is father who ” honestly my say, alike.’ H. ‘No two of children are Alfred can “Refining Fire,” Deutsch, O.S.B., Bruised Reeds And Other Sto (St. University Press, 1971) ries, p. 194, Collegeville, Mn., John’s of monastic account life]. [An recognized dating special relationship
been type as back to the western St. Bene- monasticism, founder (c. 547). hardly compared dict c. It is boarding profit.4 operated transient house disagree family imposing I also that “the term used in purported contrary, restriction is identical.” On the “family” zoning La the term Salette was defined ordinance; provided “a is ordinance cooking sleeping, living, one or more individuals or eat- ing single housekeeping unit.” La Salette, 267 at 611. Wis. Court held:
This province “It within the court’s add detract meaning village from the clear pressed board has ex- ” ‘family.’ in the definition of the word 267 Wis. at 616. only holding living arrange- La Salette religious ment of the members order came within “family” *20 the my definition in opin- the ordinance. In ion, involving La Salette specific the case the definition “family” in a ordinance no has relevance to question before us.
Supporting principle of liberal construction of promote deed restrictions use of free land private require, my sanction, does not opinion nor interpret- ing “single family dwelling” boarding to include the arrangement profit house for in this case. To do so is to ignore restriction, not interpret it. Knapp Donald testified on direct that examination the resi dents home of the “are not commitment under and live at Meadow voluntary Lane on a basis.” John Lowenstein of the Wisconsin Department Services, of Health and Social Bureau of Mental Re “[a]ny
tardation testified Knapp that resident of the Lori home could the home (R. 433, 542). leave at their own choice. . . .” We reasonably any can they conclude that if one them leaves will replaced keep operation profitable. have to be Knapps argument, counsel for At of oral the time 205, by ch. argued 46.03(22) (d), created Stats., that sec. in favor principal dispositive of issue Laws parts of disagree. pertinent Knapps. I it, opinion. majority are forth statute set arrangement living community legislature says “a that per- eight persons shall be capacity or fewer with a for lim- any purposes of deed covenant which use for missible single family 2-family residences its use in the inapplicable because I hold the statute would not thus people ten are involved case before us covered. argued Wrights his Crowleys that for the
Counsel rights acquired prior to the enactment their clients application would be an and that retroactive the statute not impairment of I contract. would unconstitutional in this Even of this record. reach that issue the basis purpose, does legislatively the act stated statute in the living “the ar- say community but that not ,.” legisla- Thus, rangements . resemble families. “family” recognized a restriction word as ture living groups. encompass persons unrelated does judgment restrains part of the I would affirm facility or home enjoins marriage I con- and would persons not related blood reversing the majority remainder cur with the judgment. that Mr. Justice to state am authorized
I William joins in dissent. this Callow cannot'agree (dissenting). I with the
COFFEY, J. *21 majority which holds: restricting premises a use of the
(1) the covenant general plan development single of residence was in of all lot owners the sub- for the intended benefit by them division, can therefore be enforced even though they parties which are not deed de- property; fendants obtained title to the (2) family any is ah elastic which term can include living group arrangement;
(3) narrowly restrictive to be covenants are construed policy favoring because an free and un- owner’s property; encumbered use of his (4) therefore, restricting the covenant in this case, single family residence, use of the ato is mean- ingless, general plan development there no enforce.
I original would Ahrens, hold grantors, expressed intended and a restriction on use of premises, and that the group as a home defendants eight unrelated couple retarded adults and a married “houseparents” Therefore, violates that restriction. I judgment woud affirm the of the trial court. argument
I holding no have with the of the court in Missionaries La Bay, Salette v. 267 Wis. Whitefish (1954). N.W.2d 627 ordinance that case require contained definition which did not relationship prerequisite blood or marital aas to mem- bership family group. priests lay brothers occupied religious the residence were members of a order, and were bound their vows to enter into a relationship. marital A construction of the ordinance prohibit occupancy their would have questions raised village serious as to whether interfering religion rights with the free exercise or the conscience, I, violation art. sec. 18 of the Wis- agree consin I holding Constitution. do not applicable the court La Salette is to the facts of this case. dealing private legitimate developer’s are
We with covenant, municipal zoning not a restrictive ordinance. important. municipality The difference is A has an obli- legislate gation evenhandedly with respect per- to all *22 Legislation treatment different which accords sons. very supported, least, at must be different classes developer private obli- no such has rational basis. seeking being prohibited gation, an to enforce from the cov- claim that is no discrimination. There invidious question discrimination, nor an enant in works invidious couldthere be. my majority complains dissent, footnote “ignore the fundamental
and also that of Justice Day, concept private restrictions, and like deed strictly building in favor ordinances, construed must be property.” ma- and unrestricted use of the free forgets jority not a construction that the rule of strict to render restriction should not be used rule law. It meaningless clear and the intent is where or ordinance obviously prohibition. activity Since within the authority, majority I offer demands citation following: may “Accordingly, strict con- well be observed that it expression. of its precise rather a relative not a but
struction is much force has lost of strict construction ‘The rule and importance more become times, since it has in recent duty recognized paramount generally that the more and language upon put judicial interpreter is to of the of the faithfully, plain honestly legislature, its meaning object.’ promote con- its Strict rational and to be confined that must struction of an ordinance means obviously subjects applications as are within such require purposes, an it does not such its terms and but unreasonably that words used technical construction meaning given in ac- cannot be their sensible fair legislative body.” with the intent cord obvious Municipal Corporations, (3rd 20.49 ed. McQuillin, sec. 1969). majority aiding Certainly I am as interested as the housing provide adequate helping care, and as- the more unfortunate members our com- sistance to munity, any lawful within the confines of restrictions but provided in the deed to the land. Those individuals savings have home, invested their life “The land and a American Dream” protection are entitled to under *23 law, including covenant, they enforcement of the which relied investing restricting on when area, in of the the single family to that of residences. The majority opinion single in has effect eliminated the family by defining family group restriction “. . as . a people live, sleep, upon cook and eat the single as a housekeeping unit. . . .” Are we to assume opinion from this group that a of 30 or 40 retarded or infirm family? adults or children would constitute a
“Family” many ways. in is used Charles Manson’s group “family.” Pittsburgh was a The Pirates are “family.” obvious, But it is at least to me, re- strictive covenant prevented this case would have occupying either question. from Social family” commentators refer to the “nuclear “ex- family” having give rigorous tended without defini- convey meaning. tion of the terms to their In this case “single family.” the term used is The deed restriction is not a obligation social worker’s It document. is the this court to make a common-sense decision as to whether bearing violated, restriction has been in mind the rigorous context in which the term is used. A definition necessary, is not eight it group because is clear that a retarded adults and two caretakers does not constitute single family. legislature recognized as much in legislative purpose statement of 205, of ch. Laws length quoted at majority opinion. significant part of that statement purposes for the following this case is the sentence:1 1 agree majority I 46.03(22) with (d), Stats., sec. is applicable case. There this no is need to consider whether retrospective, applied it single because restrictions, permits community arrangements living capacity eight with a persons. capacity fewer case the facility this ten eight persons, retarded houseparents. adults and the two legislature “The ordinances should finds that arrangements living community not be used to all bar arrangements in all since these families senses resemble might except of the word for the fact that the residents (Ante, p. 483.) not be related.” legislature recognized Not a com- has munity living arrangement single family, so is not a but made have the defendants in The trial court this case. following findings fact: uncontroverted “(10) July 19, 1973, defendants, F. On Donald Knapp made, and Bette M. executed and delivered Knapp, Mary to Franklin an A. A. offer Weeks Weeks writing dition’ purchase ‘Lots Meadowlane Ad- #1 #2 (being land in the same as described first par. hereof), two deeds referred to in for the sum of $39,900.00, purchase accepted by which offer said day things pro- purchase Weeks on the same which offer to *24 among ‘subject to vided other that the offer was approval (for Wis. Comm. intended use as multi- Ind. family-residential’). “(21) That at about same time the time [at closing proceeded Knapp to remodel transaction] dwelling changed garage on said into a bedroom and also made certain other structural changes in approval Department order to secure of of Industry, Labor and Human Relations of the State operate Wisconsin that he could prem- so and conduct the multi-family as a ises residence.” quoted findings
The two compel of the trial court conclusion the defendants knew their intended use dwelling single family violated the restriction in pretext the deed covenants. Under the of strict construc- majority up tion the has set itself as a legislature, mini and has relationship created where it is clear agree I that none do not exists. with the trial court that the term used the restrictive covenant must be relationship by marriage. to a limited blood or Adopted might or minor foster children children easily qualify single family. However, not neces as members of sary explore the definition the outer limits of “single family.” when of the covenant occurs A violation disregard imposed plain is a there of the limitations v. La express Missionaries Salette its words. See: supra. Bay, Whitefish against injunction plaintiffs to an were entitled I multi-family the defendants. modify injunction granted trial court would state, to so and would affirm. I am authorized to state joins this G. Callow dissent. that Mr. Justice William State, Muller, error, Defendant Plaintiff v. error. Supreme Court Argued 4, November 1979. Decided March No. 77-204-CR. 1980. reported 570.) (Also in 289 N.W.2d