dissenting in part and concurring in part.
I am in agreement with the majority opinion on question (1). The use of the residence as a group home for five mentally retarded women and their housekeeper constitutes a “single-family dwelling” within the meaning of the Tulsa zoning ordinance. If this case were based on the zoning ordinance alone, the trial court’s injunction would be improper. I also concur with the majority’s determination on issue (3).
However, I disagree with the majority on issue (2). The Appellees in this case have a legally protected contractual right which has been infringed. The group home violates the applicable restrictive covenant limiting the use of the property covered by the contract to “single-family dwellings”.
The intentions of parties who voluntarily enter into a restrictive covenant control judicial construction of the covenant. The majority superimposes the zoning ordinance’s definition of “single-family dwelling” onto the restrictive covenant of private parties. The zoning ordinance reflects the policy choice of the city of Tulsa, while the private restrictive covenant reflects differing policy choices. Nothing in the zoning ordinance indicates that definitions stated in the ordinances control private contracts of individual parties. Likewise, nothing in the restrictive covenants or deeds provide for the definitions of the zoning ordinance to control.
The term “single-family dwelling” should therefore be interpreted from the document itself. This calls for an examination of the plain and obvious purpose of the restriction and the ordinary meaning of the terms used. It is my opinion that the restrictive covenant’s usage of the term “single-family dwelling” refers to more traditional definition of a nuclear or extended family sharing one household.
The majority opens the door to selective enforcement of restrictive covenants. In effect, restrictive covenants can be enforced against all non-single family residence uses except when living arrangements include mentally handicapped persons. Although this reasoning reaches a desirable and preferred result, equal protection principles forbid selective enforcement of restrictive covenants.1 The Appellants seeking relief voluntarily agreed by contract that the use of the property would be limited to a “single-family dwelling”. I would uphold the restrictive covenant and affirm.
. I find persuasive the reasoning of courts that have held contrary to the majority’s analysis. See, e.g., Omega Corporation of Chesterfield v. Malloy, 228 Va. 12, 319 S.E.2d 728 (1984) cert den - U.S. -, 105 S.Ct. 967, 83 L.Ed.2d 971 (1985); London v. Handicapped Facilities Board of St. Charles County, 637 S.W.2d 212 (Mo.App.1982); Shaver v. Hunter, 626 S.W.2d 574 (Tex.App.1981) cert. den 459 U.S. 1016, 103 S.Ct. 377, 74 L.Ed.2d 510 (1982).