(dissenting). I cannot'agree with the majority which holds:
(1) the covenant restricting use of the premises to a single family residence was a general plan of development intended for the benefit of all lot owners in the subdivision, and can therefore be enforced by them even *446though they are not parties to the deed by which defendants obtained title to the property;
(2) family is ah elastic term which can include any group living arrangement;
(3) restrictive covenants are to be construed narrowly because of the policy favoring an owner’s free and unencumbered use of his property; and
(4) therefore, the covenant in this case, restricting the use of the property to a single family residence, is meaningless, and there is no general plan of development to enforce.
I would hold that the original grantors, the Ahrens, intended and expressed a restriction on the use of the premises, and that the use by defendants as a group home for eight unrelated retarded adults and a married couple as “houseparents” violates that restriction. Therefore, I woud affirm the judgment of the trial court.
I have no argument with the holding of the court in Missionaries of La Salette v. Whitefish Bay, 267 Wis. 609, 66 N.W.2d 627 (1954). The zoning ordinance in that case contained a definition which did not require a blood or marital relationship as a prerequisite to membership in the family group. The priests and lay brothers who occupied the residence were members of a religious order, and were bound by their vows not to enter into a marital relationship. A construction of the ordinance to prohibit their occupancy of the premises would have raised serious questions as to whether the village was interfering with the free exercise of religion or the rights of conscience, in violation of art. I, sec. 18 of the Wisconsin Constitution. I do not agree that the holding of the court in La Salette is applicable to the facts of this case.
We are dealing with a private developer’s legitimate restrictive covenant, not a municipal zoning ordinance. The difference is important. A municipality has an obligation to legislate evenhandedly with respect to all per*447sons. Legislation which accords different treatment to different classes must be supported, at the very least, by a rational basis. The private developer has no such obligation, being prohibited only from seeking to enforce an invidious discrimination. There is no claim that the covenant in question works an invidious discrimination, nor could there be.
In footnote 3, the majority complains that my dissent, and also that of Justice Day, “ignore the fundamental concept that private deed restrictions, like zoning and building ordinances, must be strictly construed in favor of the free and unrestricted use of property.” The majority forgets that the rule of strict construction is not a rule of law. It should not be used to render a restriction or ordinance meaningless where intent is clear and the activity is obviously within the prohibition. Since the majority demands citation of authority, I offer the following:
“Accordingly, it may well be observed that strict construction is not a precise but rather a relative expression. ‘The rule of strict construction has lost much of its force and importance in recent times, since it has become more and more generally recognized that the paramount duty of the judicial interpreter is to put upon the language of the legislature, honestly and faithfully, its plain and rational meaning and to promote its object.’ Strict construction of an ordinance means that it must be confined to such subjects or applications as are obviously within its terms and purposes, but it does not require such an unreasonably technical construction that words used cannot be given their fair and sensible meaning in accord with the obvious intent of the legislative body.” 6 McQuillin, Municipal Corporations, sec. 20.49 (3rd ed. 1969).
Certainly I am as interested as the majority in aiding and helping to provide adequate care, housing and assistance to the more unfortunate members of our community, but within the confines of any lawful restrictions *448provided in the deed to the land. Those individuals who have invested their life savings in land and a home, “The American Dream” are entitled to protection under the law, including enforcement of the covenant, which they relied on when investing in the area, restricting use of the property to that of single family residences. The majority opinion has in effect eliminated the single family restriction by defining family as “. . . a group of people who live, sleep, cook and eat upon the premises as a single housekeeping unit. . . .” Are we to assume from this opinion that a group of 30 or 40 retarded or infirm adults or children would constitute a family?
“Family” is used in many ways. Charles Manson’s group was a “family.” The Pittsburgh Pirates are a “family.” But it is obvious, at least to me, that the restrictive covenant in this case would have prevented either from occupying the property in question. Social commentators refer to the “nuclear family” and the “extended family” without having to give a rigorous definition of the terms to convey their meaning. In this case the term used is “single family.” The deed restriction is not a social worker’s document. It is the obligation of this court to make a common-sense decision as to whether the restriction has been violated, bearing in mind the context in which the term is used. A rigorous definition is not necessary, because it is clear that a group of eight retarded adults and two caretakers does not constitute a single family. The legislature recognized as much in the statement of legislative purpose of ch. 205, Laws of 1977, quoted at length in the majority opinion. The significant part of that statement for the purposes of this case is the following sentence:1
*449“The legislature finds that zoning ordinances should not be used to bar all community living arrangements since these arrangements resemble families in all senses of the word except for the fact that the residents might not be related.” (Ante, p. 483.)
Not only has the legislature recognized that a community living arrangement is not a single family, but so have the defendants in this case. The trial court made the following uncontroverted findings of fact:
“(10) On July 19, 1973, the defendants, Donald F. Knapp and Bette M. Knapp, made, executed and delivered to Franklin A. Weeks and Mary A. Weeks an offer in writing to purchase ‘Lots #1 and #2 Meadowlane Addition’ (being the same land as described in the first two deeds referred to in par. 7 hereof), for the sum of $39,900.00, which offer to purchase was accepted by said Weeks on the same day and which offer to purchase provided among other things that the offer was ‘subject to approval of Wis. Ind. Comm. (for intended use as multifamily-residential’).
“(21) That at about the same time [at the time of closing of the transaction] Knapp proceeded to remodel the dwelling on said property and changed the garage into a bedroom and also made certain other structural changes in order to secure approval of the Department of Industry, Labor and Human Relations of the State of Wisconsin so that he could operate and conduct the premises as a multi-family residence.”
The two quoted findings of the trial court compel a conclusion that the defendants knew their intended use of the dwelling violated the single family restriction in the deed covenants. Under the pretext of strict construction the majority has set itself up as a mini legislature, and has created a family relationship where it is clear that none exists. I do not agree with the trial court that the term as used in the restrictive covenant must be limited to a relationship by blood or marriage. Adopted children or minor foster children might easily qualify *450as members of a single family. However, it is not necessary to explore the outer limits of the definition of “single family.” A violation of the covenant occurs when there is a plain disregard of the limitations imposed by its express words. See: Missionaries of La Salette v. Whitefish Bay, supra.
The plaintiffs were entitled to an injunction against multi-family use of the premises by the defendants. I would modify the injunction granted by the trial court to so state, and would affirm. I am authorized to state that Mr. Justice William G. Callow joins this dissent.
I agree with the majority that sec. 46.03(22) (d), Stats., is not applicable to this case. There is no need to consider whether it is retrospective, because as applied to single family restrictions, it permits community living arrangements with a capacity of eight or fewer persons. In this case the capacity of the facility is ten persons, the eight retarded adults and the two houseparents.