dissenting.
I dissent. If our courts persist in excluding family-type residential units from the definition of a "single family dwelling", then the elderly, the developmentally disabled, the retarded, the physically handicapped, and foster children-all of whom, with minimal help, could live in a family setting with the normal patterns and conditions of everyday life-must be confined to nursing homes and institutions, in some cases permanently, where no family atmosphere is present.
In Metropolitan Development Commission of Marion County v. The Villages, Inc. (1984), Ind.App., 464 N.E.2d 367, trans. denied, cert. den. (1985), 471 U.S. 1010, 105 S.Ct. 1879, 85 L.Ed.2d 171, our Third District found a proposed group home in which a married couple would act as foster parents for up to ten abused, abandoned, and neglected foster children did not constitute a single-family dwelling, nor did the group home qualify as an accessory use under the zoning ordinance. In Judge Ratliff's vigorous dissent, he correctly noted the proposed use met the definition of a single-family residence as clearly established by decisions from our sister states.
In the case decided today, the majority finds a family unit of six to eight developmentally disabled adults and two supervisors is a commercial enterprise, in clear contravention of the public policy of this state as defined by our legislature, and also finds the restrictive covenant prevails over the statutes at issue which were enacted under the legislature's plenary policy power.
On the other hand, this District recently recognized that a group home for developmentally disabled adults was a residential use. In Metropolitan Board of Zoning Appeals v. Gunn (1985), Ind.App., 477 N.E.2d 289, a homeowner appealed from an order by the Zoning Appeals Board which granted a special exception for establishment of a group home for developmentally disabled adults within a historic preservation area in Indianapolis. The landowner argued that, by statute, the Meridian *468Street Preservation Commission had the power to veto the proposed group home as a special exception to the zoning ordinance. This court held the Preservation Commission did not have veto power over special exceptions, but did have veto power over variances which, if granted, might change the nature of the neighborhood. This court noted that the proposed group home for developmentally disabled adults was defined by statute as a "residential facility", 1C. 16-13-21-1, and reasoned as follows:
"We also deem our conclusion to be consonant with general public policy. "[The ultimate purpose of zoning regulations is to confine certain classes of uses and structures to certain areas.! Misner v. Presdorf (1981), Ind.App., 421 N.E.2d 684, 686. Thus, it is proper for a municipal authority to designate certain areas as 'residential' and to 'restrict those uses which would conflict with a stable, un-congested single-family environment.' Incorporated Village of Freeport v. Association for the Help of Retarded Children (1977), 94 Misc.2d 1048, 406 N.Y.S.2d 221, 222. In the obverse, then, a municipal authority may authorize those uses which maintain such a residential environment.
A group home has such a 'generic' quality of residential ambience because its purpose is to so provide the qualities of a stable and permanent household to the developmentally disabled. Incorporated Village of Freeport v. Association for the Help of Retarded Children (1977), 94 Misc.2d 1048, 406 N.Y.S.2d 221, 222. What Gunn asks that we do is make a distinction among households ~ based upon intimate or genetic relations rather than land use control. This, we believe, is inappropriate. See, e.g., Hessling v. City of Broomfield (1977), 193 Colo. 124, 563 P.2d 12.
The legislature has spoken clearly on the subject of 'main-streaming' developmentally disabled adults into normal family environments rather than having them institutionalized. See IND. CODE 16-10-2.1-1 (1982), et seq. (now IND. CODE 16-18-21-1 et seq.) The policy is clear. The Meridian Street preservation act, on the other hand, controls the land use policy in a specific Indianapolis neighborhood by giving the inhabitants thereof a modicum of self-determinism regarding the manner in which the complexion of their locale may or may not be changed by variances from its essentially residential character. The policy therein is not one of controlling the character of the households except in denominated single and double-family dwellings. If one such dwelling is granted a recognized exception to be labeled a group home, neighboring inhabitants are not empowered to prevent it on the basis of the lack of familial relationship. The trial court erred as a matter of law in finding otherwise." (emphasis added).
Gunn, supra, 477 N.E.2d at 299-800.
In my opinion, first, this family-type unit is residential, not commercial. Second, it does not violate either the residential use restriction or the building-type restriction contained in the subdivision's restrictive covenants. Third, even if the restrictive covenant had been so specific as to exclude this type of group home, which is not the case here, our courts should not enforce a restrictive covenant that is in opposition to the legislatively defined public policy in this area.
I. Restrictive Covenant1
After examining the language of the restrictive covenant, I conclude the majority forces ambiguity where it does not exist. The language of the covenant is clear:
"1) LAND USE AND BUILDING TYPE: No lot shall be used except for residential purposes. No building shall be erected, altered, placed or permitted to remain on any lot other than one detached single family dwelling not to *469exceed two and one-half stories in height ..."
(emphasis added).
This covenant contains two types of restrictions, one limits land use to "residential purposes" and the other limits the type of building to "one detached single family dwelling not to exceed two and one-half stories in height."
A. Land Use Restriction
The initial question is whether the proposed group home for six to eight unrelated developmentally disabled persons and two house parents violates the restriction against any use "except residential purposes." Giving these words their plain and ordinary meaning, a "residential purpose" is one in which people reside or dwell, or in which they make their homes.
Residential use is distinguishable from commercial or business use. The language of the restriction is concerned with the physical activity carried on upon the premises, and not with the presence or absence of a profit-making motive on the part of the landowner. The fact that a residential facility may be owned for income producing purposes does not make the use of the premises a use for business or commercial purposes. See Brennen v. Kos (1983), 15 Mass.App. 513, 446 N.E.2d 1082 (language of restrictive covenant that "only one-family house shall be erected hereon" did not prevent homeowners from renting rooms in their house to college students, but, rather, restricted number and types of structures which could be constructed on each lot that was subject to covenant); Walker v. Gross (1972), 362 Mass. 703, 290 N.E.2d 543 (use of premises for an apartment building with 83 family units was not prevented by a deed restriction which provided no part of premises could be used for "any business purpose" because apartment apartment building was used by its occupants for residential purposes). See also Blakely v. Gorin (1974), 365 Mass. 590, 313 N.E.2d 903.
I find the occupants of the proposed structure will use it for residential purposes, as required by the restrictive covenant. The inhabitants of the proposed residential facility are to be six to eight developmentally disabled adults and two house parents who would live together as a household, maintaining the home, preparing meals, and performing housekeeping chores. The underlying theory behind establishing such a home is that it serves as a surrogate family arrangement. This home will be neither a boarding house nor an institutional facility.
Faced with similar factual situations, a substantial number of our sister jurisdictions have held that the operation of a group home is a residential use within the meaning of a covenant with such a restriction. See, e.g., Linn County v. City of Hiawatha (1981), Iowa, 311 N.W.2d 95; Clark v. Manuel (1985), La., 463 So.2d 1276, 1279; Concord Estates v. Special Children's Foundation (1984), La.App., 459 So.2d 1242, 1244; Vienna Bend Subdivision Homeowners Asso. v. Manning (1984), La. App., 459 So.2d 1345; St. Luke's House, Inc. v. DiGiulian (1975), 274 Md. 317, 336 A.2d 781; City of Livonia v. Department of Social Services (1985), 423 Mich. 466, 378 N.W.2d 402; Leland Acres Home Owners Assoc. v. RT Partnership (1981), 106 Mich.App. 790, 308 N.W.2d 648; Malcolm v. Shamie (1980), 95 Mich.App. 132, 290 N.W.2d 101; Bellarmine Hills Assoc. v. Residential Systems Co. (1978), 84 Mich.App. 554, 269 N.W.2d 673; Costley v. Caromin House, Inc. (1981), Minn., 313 N.W.2d 21; Blevins v. Barry Lawrence County Asso. (1986), Mo., 707 S.W.2d 407; State ex rel Region II Child and Family Services, Inc. v. District Court (1980), 187 Mont. 126, 609 P.2d 245; Knudtson v. Trainor (1984), 216 Neb. 653, 345 N.W.2d 4; Berger v. State (1976), 71 N.J. 206, 364 A.2d 993; J.T. Hobby & Son, Inc. v. Family Homes, Etc. (1981), 302 N.C. 64, 274 S.E.2d 174; Beres v. Hope Homes, Inc. (1982), 6 Ohio App. 3d 71, 453 N.E.2d 1119; Jackson v. Williams (1985), Okla., 714 P.2d 1017; Crowley v. Knapp (1980), 94 Wis.2d 421, 288 N.W.2d 815. See generally An-not., Restrictive Covenant Limiting Land Use to "Private Residence" or "Private Residential Purposes": Interpretations and Application, 48 ALR. 4th 71 (1986) An-not., Community Residence for Mentally *470Disabled Persons as Violation of Restrictive Covenant, 41 ALR. 4th 1216; (1985) Annot., Use of Property for Multiple Dwellings as Violating Restrictive Covenant Permitting Property to be Used for Residential Purposes Only, 99 ALR. 3d 985 (1980); Guernsey, The Mentally Retarded and Private Restrictive Covenants, 25 Wm. & Mary L.Rev. 421 (Spring 1984), Brussack, Group Homes, Families, and Meaning in Subdivision Covenants, 16 Ga.L Rev. 38 (Fall 1981).
In Blevins v. Barry Lawrence County Association, supra, Missouri homeowners sought to enjoin the County Association for Retarded Citizens from using its property as a group home for eight mentally retarded and unrelated adults. The subdivision was protected by a restrictive covenant which provided in relevant part:
"1. The aforesaid real property shall be used for residential purposes only. No buildings shall be erected, altered, placed or permitted to remain on said real property other than single or double family dwellings not to exceed two and one-half stories in height and private garages for not more than two cars. No detached structures shall be permitted."
(emphasis added).
Blevins, 707 S.W.2d at 407. The Missouri Supreme Court, sitting en bane, held the covenant established both a use and a structural restriction. The Court stated its reasons for holding that a group home is a residential use as follows:
"[ Appellant] operates a number of 'group homes' in which mentally retarded adults live in a residential setting with 'house parents', often a husband and wife, who provided supervision and care for the retarded adults....
The group home as contemplated to be operated by in Wildwood Estates by defendant is designed to allow the residents to develop their social, emotional and intellectual skills by living in a stable family-type environment. The house parents and residents function in an integrated family-style unit instead of as independent individuals who share only a place to sleep and eat. Residents are involved in performing simple household duties and participate in discussing, and if possible, resolving problems existing in the home and in making decisions as to the nature of group activities. Although ultimate decisions are left to house parents and/or the defendant's board. The entire group often attends church, goes shopping and travels about the community in a body.
... [Fjormal training for the retarded residents does not take place in the group home, but rather is conducted at an activity center or sheltered workshop during the workweek. Within the group home, the house parents encourage the development of social skills and simple homemaking skills by the individuals living there. The primary purpose of a residential group home is to provide a living situation as normal as possible for developmentally disabled residents of the community and is ordinarily not a temporary living arrangement but, depending upon the individual, a resident may remain in the group home months, years or for their entire lifetime."
Blevins, 707 S.W.2d at 408.
In Jackson v. Williams, supra, Okla homa homeowners sought an injunction against a non-profit organization attempting to establish a group home for five mentally handicapped adult women. The homeowners argued the group home violated a restrictive covenant which provided in part:
"All lots in the tract shall be known and described as residential lots * * * No structure shall be erected, altered, placed or permitted to remain on any building plot other than one detached single-fom-ily dwelling."
(emphasis added).
Jackson, 714 P.2d at 1021. The Oklahoma Supreme Court held the covenant established both a use and a structural restriction, "the first sentence ... requires lots to be residential; the rest of the covenant requires that any structure be a single-family dwelling." Jackson, 714 P.2d at 1021. The Court held the proposed group home violated neither provision of the restrictive *471covenant and explained its holding that a group home is a residential use of property:
"It is the purpose and method of operation which serves to distinguish the proposed residential use of the home from that normally incident to a purely commercial operation. Financial gain is clearly not the motivation of the Association in the operation of the home.
The five women are to function as single housekeeping unit by sharing in the preparation of meals, performing housekeeping duties and planning recreational activities. Most of the women have outside employment. The housekeeper will provide supervision and guidance similar to that of the head of any household. The day-to-day activities occurring at the home, as viewed from the outside, will not make it appear unlike the rest of the neighborhood. The essential purpose of the group home is to create a normal family atmosphere dissimilar from that found in traditional institutional care for the mentally handicapped. The operation of a group home is thus distinguishable from.a use that is commercial-ie., a boarding house that provides food and lodging only-or is institutional in character. Furthermore, no educational training would be provided at the home nor would there be medical or nursing care administered to the residents. In virtually all respects, save for the mental capacity of those who would live in the home, the on-the-premises operations would be much like a typical surburban household.
Jackson v. Williams, supra, 714 P.2d at 1022.
I conclude the group home at issue here is residential and does not violate the use restriction contained in the covenant.
B. Building Type Restriction
The next question is whether Adult Group Properties' intended use of the property violates the second sentence of the restrictive covenant which limits building type to "one detached single family dwelling not to exceed two and one-half stories in height." Imler's argue this restriction is a restriction on use and that Adult Group Properties' proposed residential facility is not a single family dwelling. By its plain terms, however, this restriction applies only to structures and not to the use of the property. Read literally and in harmony with the first restriction on use, "single family dwelling" restricts the number and types of structure which can be erected and maintained on each of the lots subject to the covenant. The words "single family dwelling" indicate a manifest intent that a residence erected upon the lot should be limited in design to the accommodation of a single family unit, precluding the erection of a single building containing two or more wholly distinct apartments. See Lebo v. Fitton (1942), 71 Ohio App. 192, 41 N.E.2d 402.
The covenant at issue here closely resembles those in Blevins, supra and Jackson, supra. Blevins held the group home did not violate a provision in a restrictive covenant limiting building type to "single family dwelling" because "single family dwell ing" applies only to structures, not to use of the property. The Jackson court reached the same conclusion and explained its reasons as follows:
"The term 'family' was, in fact, used without a definition and hence did not necessarily exclude from its meaning a group of unrelated persons living together in a home. This phrase was intended to describe the character of the structure rather than limit the use of the property to single-family residence. When, as here, the restrictive covenant under consideration prohibits occupancy of more than one family unit but does not address itself to the composition of the family, a court is loathe to restrict a family unit to that composed of persons who are related, one to another, by consanguinity or affinity."
Jackson, 714 P.2d at 1023.
I find the size and shape of the building proposed to be erected conforms to the restriction on building type. A number of our sister jurisdictions have reached a similar conclusion, whether interpreting a restrictive covenant or a zoning ordinance, and held that certain group homes may be *472a "family" unless an explicit definition of family contained in the covenant or ordinance dictates otherwise. See, eg., City of Santa Barbara v. Adamson (1980), 27 Cal.3d 123, 164 Cal.Rptr. 539, 610 P.2d 436 (a restrictive definition of "single family dwelling" would violate state constitution); Oliver v. Zoning Commission of Town of Chester (1974), 31 Conn.Sup. 197, 326 A.2d 841; Douglas County Resources, Inc. v. Daniel (1981), 247 Ga. 785, 280 S.E.2d 734 (broad definition in ordinance); Linn County v. City of Hiawatha (1981), Iowa, 311 N.W.2d 95; Malcolm v. Shamie (1980), 95 Mich.App. 132, 290 N.W.2d 101; Costley v. Caromin House, Inc. (1981), Minn., 313 N.W.2d 21; State ex rel Region II Child and Family Services, Inc. v. District Court (1980), 187 Mont. 126, 609 P.2d 245; Knudtson v. Trainor (1984), 216 Neb. 653, 345 N.W.2d 4 (adopting trial court opinion which quoted with approval a broad definition of "family"); State v. Baker (1974), 81 N.J. 99, 405 A.2d 368 (restrictive definition would violate state constitution). Saunders v. Clark County Zoning Dept. (1981), 66 Ohio St.2d 259, 421 N.E.2d 152; Gregory v. State Dept. of Mental Health (1985), R.I., 495 A.2d 997; Mongony v. Bevilacqua (1981), R.I., 432 A.2d 661; Collins v. City of El Campo (1984), Tex.App., 684 S.W.2d 756; Crowley v. Knapp (1980), 94 Wis.2d 421, 288 N.W.2d 815.2
I find no ambiguity in the plat restrictions and conclude Adult Group Properties' proposed use and building are permitted by the covenant. However, if the deed restriction did contain ambiguity, it is the obligation of this court to construe such ambiguity in favor of the grantee and in favor of the free use of the property. In property law, a "restrictive covenant" describes a contract between the grantor and the grantee which restricts the grantee's use and occupancy of land. Generally, the purpose behind restrictive covenants is to maintain or enhance the value of lands adjacent to one another by controlling the nature and use of surrounding lands. Pulos v. James (1973), 261 Ind. 279, 302 N.E.2d 768; Burnett v. Heckelman (1983), Ind.App., 456 N.E.2d 1094; Cunningham v. Hiles (1979), 182 Ind.App. 511, 395 N.E.2d 851. Although restrictive covenants are not favored by the law, the contractual nature of the restrictions contained in such covenants has compelled the courts to enforce them in equity as long as the restrictions are unambiguous and do not violate public policy. Burneit, supra; Ellis v. George Ryan Co., Inc. (1981), Ind.App., 424 N.E.2d 125; Kuchler v. Mark II Homeowners Assoc., Inc. (1980), Ind.App., 412 N.E.2d 298. Our sister jurisdictions have long held it is the duty of their courts to construe ambiguity in a restrictive covenant in favor of the grantee and in favor of the free use of land, as long as this general rule is not used to ignore or override the specific language of the restrictive covenant. Amoco v. Realty Company v. Montalbano (1985), 133 Ill.App.3d 327, 88 Ill.Dec. 369, 478 N.E.2d 860; Cimino v. Dill (1982), 108 IIl.App.3d 782, 64 Ill.Dec. 315, 439 N.E.2d 980; Freehling v. Development Management Group (1979), 75 Ill.App.3d 243, 30 Ill.Dec. 610, 393 N.E.2d 646; Lebo v. Fitton, supra; Stone v. Pillsbury, supra. Although no specific Indiana authority has been found for this general rule, I would apply it here to resolve any ambiguity in favor of the grantee and the free use of the land in question.
II. Statutory Public Policy and Impairment of Contract Rights
A. Construction of the Statute
I believe the majority opinion, by designating the group home a business under our statute, violates two basic rules of statutory construction: if the language of a statute is not ambiguous, it needs no con*473struction, Community Hospital of Anderson and Madison County v. McKnight (1986), Ind., 493 N.E.2d 775; M & K Corp. v. Farmers State Bank (1986), Ind.App., 496 N.E.2d 111 and, when examining statutes, our foremost concern is to determine and give effect to the true intent of the legislature. Frame v. South Bend Community School Corp. (1985), Ind.App., 480 N.E.2d 261. Both the language chosen by the legislature in the following subsections and the other provisions in Chapter 21 on the same general subject matter3 show the legislature's obvious purpose: to encourage licensed and supervised provision, by qualified private persons, of residential housing facilities and services needed for developmentally disabled and mentally ill persons within the state. The Legislature recognized that both zoning ordinances and restrictive covenants could be used by homeowners to delay or block placement of residential facilities in residential neighborhoods and make effective implementation of the State's policy of deinstitutionalization impossible. The purpose of the zoning and restrictive covenant provisions at issue here includes elimination of litigation adversely affecting the State's program of deinstitutionalization by challenging the "residential use" or "family" status of a group home.
The Legislature, in enacting Chapter 21, has determined that "mainstreaming" bringing the handicapped back into the community where they can live more "normal" lives-is a worthy goal. Chapter 21 affirmatively fosters and supports community placement when such placement is appropriate and institutionalization is not beneficial. Institutionalization as an alternative is substantially more expensive and considerably less desirable for disabled residents. Chapter 21 clearly establishes that the public policy of this state is to promote the development and maintenance of quality programs and facilities for the care and treatment of the mentally and developmentally handicapped. Residential facilities are essential to the State's effort to end inappropriate placement of mentally disabled persons in large institutions and to provide homes for mentally disabled persons who have never been institutionalized. State licensed residential facilities allow mentally disabled persons to lead reasonably full lives and to avoid being committed to almost complete dependency in a state institution. The Legislature provided, in 1.0. 16-18-21-12 and I.C. 16-183-21-14, that developmentally disabled and mentally ill persons needing community residential care may not be excluded from the benefits of living in normal family residential neighborhoods by either zoning ordinances or restrictive covenants. The Legislature recognized that both zoning ordinances and restrictive covenants could be invoked to block or delay placement of community residential facilities and make impossible the effective implementation of the State's policy of deinstitutionalization.
1.C. 16-18-21-12 reads:
"Zoning ordinances adopted under IC 36-7 may not exclude a residential facility for the developmentally disabled from a residential area solely becouse the residential facility is a business or because the persons residing in the residential facility are not related, unless the residential facility will be located within three thousand feet (8,000) of another residential facility, as measured between lot lines." ... (Emphasis added).
I.C. 16-13-21-14 reads in pertinent part:
"Any restriction, ... or covenant in any subdivision plat, ... pertaining to, the ... use of property that would permit the residential use of property but prohibit the use of that property as a residential facility for the developmen*474tally disabled or mentally ill persons, is to the extent of the prohibition, void as against the public policy of the state." (Emphasis added).
Zoning ordinances under 1.C. 16-13-21-12 are not permitted to prohibit the location of residential facilities because these facilities might be labeled a business or because the residents are unrelated.4 Subdivision plats and deeds under I.C. 16-18-21-14 are not permitted to prohibit the location of residential group homes because the use of the property might be labeled as not residential. The legislature's intent is plainly to encourage the development of residential facilities for developmentally disabled and mentally ill persons in a variety of neighborhoods throughout our state. We note the zoning section expressly provides that one residential facility may not be located within 3,000 feet of another. This section precludes excessive concentration of residential facilities in any one neighborhood and protects homeowners from any detriment which may result from such concentration.
Even if the use or the building proposed for the property violated the restrictive covenant, this court should not equitably enforce the covenant because of a strong public policy favoring the establishment of such residences for the developmentally disabled and mentally ill. Over the past twenty years, this state has developed a policy favoring the deinstitutionalization of mentally and developmentally disabled persons and their placement in supervised residential facilities housing small groups of six to eight persons, commonly called a "group home". Chapter 21 authorizes the development, by private providers, and the licensing and supervision by the state, of residential facilities to be run in cooperation with the Mental Health Department and the federal government. Chapter 21 strives to place developmentally disabled persons in normal settings, "a therapeutic environment in a home-like setting", I.C. 16-13-21-1, not in mental hygiene ghettos which will act as little more than mini-institutions grouped together in commercial areas.
The purpose of Chapter 21 is apparent: to provide the most effective care for mentally and developmentally disabled individuals in the least restrictive environment. The purpose of the statutory zoning and restrictive covenant provisions here at issue includes elimination of litigation adversely affecting the state's program by challenging the "residential use" or "family" status of a group home. In such circumstances, we must construe the act in question to suppress the evil and advance the remedy. Since the state's policy regarding placement of mentally ill and developmentally disabled persons would be frustrated by enforcement of the restrictive covenant, it cannot as a matter of public policy be enforced against the Adult Group Properties' proposed residential facility.
B. Impairment of Contract Rights
The majority accepts the Imlers' argument that this court may not refuse to enjoin violation of the restrictive covenant on public policy grounds because it is a private contract which cannot be impaired by the state. I disagree. Although the language of the contract clause in our constitution is facially absolute 5 this court has recognized exceptions to the general rule. In Wencke v. City of Indianapolis (1982), *475Ind.App., 429 N.E.2d 295,6 Judge Shields stated:
"A retrospective application of a statute to a contract entered into before the effective date of that statute can impair contractual obligations contrary to both the United States and Indiana Constitutions. U.S. Const. Art. 1 § 10; Ind. Const. Art. 1 § 24. There are, however, exceptions to the general rule. The prohibition against impairment of contracts is not an absolute one. The contract clause of either constitution does not restrict the exercise of the state's police power to protect the public health, safety, and welfare. Finerty v. State ex rel. School City of Gary, (1938) 213 Ind. 470, 12 N.E.2d 941. In order to justify the impairment of a contractual obligation, there must be a necessity for the legislation and the legislation must be reasonable under the circumstances. In re La Fortune, (9th Cir.1981) 652 F.2d 842." (emphasis added). Wencke, supra, 429 N.E.2d at 298.
This is the standard used by both the federal courts and our sister states in deciding whether legislative action has impaired the right to contract.
We recognize the impossibility of fully defining police powers. Bruck v. State ex rel. Money (1950), 228 Ind. 189, 91 N.E.2d 349. However, the term generally concerns the power inherent in government to enact laws, within constitutional limits, to promote the order, safety, health, morals, and general welfare of society. Id. Police power, accordingly, operates in the field of legislation, except possibly in some cases of emergency. The State can exercise its police power to enact laws to control the use of property because the uncontrolled use would be harmful to the general welfare. See Williams v. State (1983), Ind.App., 444 N.E.2d 888; Foreman v. State ex rel. Department of Natural Resources (1979), Ind.App., 387 N.E.2d 455.
In order to justify the impairment of a contractual obligation, there must be a necessity for the legislation and the legislation must be reasonable under the circumstances. Here, the state's interest in protecting the health, safety, and welfare of mentally and developmentally disabled persons is clearly an important public purpose and the means used by our legislature to encourage the development of residential facilities are reasonable and appropriate to effectuate the state's program of providing the most effective care in the least restrictive environment. I find the legislation reasonable because the use is residential and therefore conforms to the nature and character of a residential neighborhood.7 The residents will use the home to live in, not to receive treatment. In these circumstances, the Imler's private contract rights may not override important legislatively defined state public policy.
Two of our sister jurisdictions have addressed the placement of group homes for the handicapped and have refused to enforce restrictive covenants because public policy prohibits such enforcement. The Court of Appeals of New York, in Crane Neck Assoc., Inc. v. New York City/Long Island County Services Group (1984), 61 N.Y.2d 154, 472 N.Y.S.2d 901, 460 N.E.2d 1336, cert den., 469 U.S. 804, 105 S.Ct. 60, 83 L.Ed.2d 11, responded as follows to appellant's argument that the court may not refuse to enjoin violation of the restrictive covenant on public policy grounds because *476it is a private contract which cannot be impaired by the state absent emergency circumstances not present in that case:
"Although the language of the contract clause is facially absolute, this court has long recognized that the State's interest in protecting the general good of the public through social welfare legislation is paramount to the interests of parties under private contracts, and the State may impair such contracts by subsequent legislation or regulation so long as it is reasonably necessary to further an important public purpose and the measures taken that impair the contract are reasonable and appropriate to effectuate that purpose. (citations omitted).
While older cases such as [Home Bldg. & Loan Assn. v.] Blaisdell [290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413] (many of which concerned depression-era legislation prohibiting foreclosure of mortgages or other debts) may have suggested that some emergency requiring temporary State action should be present in order to allow impairment of contract rights, this is clearly no longer the law. 'If the state regulation constitutes a substantial impairment, the State, in justification, must have a significant and legitimate public purpose behind the regulation ... such as the remedying of a broad and general social or economic problem ... Furthermore, since Blaisdell, the court has indicated that the public policy need not be addressed to an emergency or temporary situation.' (citations omitted). Here the State's interest in protecting the welfare of mentally and developmentally disabled individuals is clearly an important public purpose, and the means used to select the sites for community residences are reasonable and appropriate to effectuate the State's program of providing the most effective care in the least restrictive environment. In such circumstances, appellants' private contract rights may not override State policy.
Since public policy prohibits enforcement of the restrictive covenant against the 'community residence' at 3 Johns Hollow Road, appellants' action seeking to enjoin such use was properly dismissed."
Crane Neck Assoc., supra, 472 N.Y.S.2d at 908, 460 N.E.2d at 1339.
The Michigan Court of Appeals, in McMillan v. Iserman (1982), 120 Mich.App. 785, 327 N.W.2d 559, held a deed restriction specifically prohibiting the use of a lot for a residential facility for mentally impaired persons was unenforceable as contrary to public policy. The amended deed restriction at issue was a blatant attempt by homeowners to exclude any state licensed residential facility.8 The court reasoned:
"We recognize the fact that it is the established public policy of this state to permit and uphold certain restrictions upon the use and occupancy of real property. (citations omitted). However, it is also the settled public policy of our state to promote 'the development and maintenance of quality programs and facilities *477for the care and treatment of the mentally handicapped'. (citations omitted) ... With two such competing public policies in the scales and being faced with having to make a choice, we find that the scales in this case tip decidedly in favor of protecting the state-licensed residential facility for the mentally handicapped. As Judge McGregor stated, dissenting in Jayno Heights Landowners Ass'n v. Preston, 85 Mich.App. 443, 454-455, 271 N.W.2d 268 (1978):
'In applying with the utmost caution the principle that restrictive covenants which violate public policy may not be enforced, I would find that the public policy favoring the establishment of residential adult foster care facilities outweighs the policy supporting the enforcement of residential restrictive covenants and that the covenant in question may not be enforced to enjoin defendants' use of this property as a licensed foster care facility. In reaching this result, it should be noted that the balance between the competing pol-icles in this case is exceedingly close and that M.C.L § 331.688(1) M.S.A. § 16.610(8)(1) serves to prohibit the excessive concentration of such facilities in any community. Residential homeowners are therefore protected from any detriments which may result from such a situation.'
We conclude that the amended deed restriction here, specifically prohibiting state-licensed residential facilities for the mentally handicapped, is manifestly against the public interest and thus unenforceable on public policy grounds."
McMillan, supra, 327 NW .2d at 562.
In a later Michigan case, Craig v. Bossenbery (1984), 134 Mich.App. 543, 351 N.W.2d 596, property owners did not attempt so blatant an exclusion as the plaintiffs in McMillan. However, the covenant did provide a more specific definition of "single-family" than in our case:
"Lots shall be used for residential purposes only and no building of any kind whatsoever shall be erected, re-erected, moved or maintained except private detached dwellings. Such dwellings shall be designated and erected for occupation by, and occupied by, only one (1) single family. A private garage or carport for the sole use of the owner or occupant may be provided. A fumily shall mean one person or a group of two or more persons living together and inter-related by bonds of consanguinity, marriage, or legal adoption. The persons thus constituting a fomily may also include foster children, gratuitous guests and domestic servants. The De-clarant may permit the occupation of a dwelling by persons not constituting a family as defined herein provided it finds that such occupancy will not be detrimental to the purposes sought to be obtained by these restrictions." {(emphasis added).
Craig, supra, 351 NW .2d at 597.
The Michigan Court of Appeals again found the public policy in Michigan strongly supports placing retarded citizens in normal community environments whenever possible and that this strong public policy precludes enforcement of the restrictive covenant. The court held:
"The restrictive covenant we consider pre-dates the current controversy surrounding mainstreaming, whereas the McMillan covenant was written in direct response to the statute to specifically exclude group homes. We attribute no ill motive to our plaintiffs. Nevertheless, the public policies are the same. The strong public policy supporting group homes overcomes the public policy which favors the right of property owners to create restrictive covenants. We cannot consider the property owners' apparent motives in drafting or retaining a covenant lest we encourage indirect methods to exclude the handicapped where blatant, direct methods would clearly fail.
Thus, we hold that the restrictive covenant which, by its definition of 'family,' bars the placement of a small group home for the continuous care of six or fewer mentally retarded adults is unenforceable as violative of public policy. *478We are not striking down the covenant in its entirety. The Lake Oakland Woods Subdivision Number 3 has a recognized right to maintain the single-family atmosphere by defining 'family'. As applied to the residents of the defendants' small group home, however, the covenant is unenforceable."
Craig, supra, 351 N.W.2d at 599.
I conclude that the Imlers' private contract rights may not be permitted to override important legislatively-defined public policy and even if the proposed group home violated the restrictive covenant at issue, the court should refuse to enforce the restrictive covenant here on public policy grounds.
. In my opinion, as expressed later, the restrictive covenant here involved cannot be enforced by our courts as it is clearly against public policy. However, the impact of the majority opinion on similar group homes, i.e. the elderly, is so severe I must attack the majority opinion's reasoning and conclusions.
. Cf. Macon Assoc. for Retarded Citizens v. Macon-Bibb County Planning and Zoning Commission (1984), 252 Ga. 484, 314 S.E.2d 218 (explicit definition of "family" controlling); Omega Corp. of Chesterfield v. Malloy (1984), 228 Va. 12, 319 S.E.2d 728 (group home was not a single family because of supervision by counselors who were government employees). See also, Annot., What Constitutes a "Family" Within Meaning of Zoning Regulation or Restrictive Covenant, 71 A.L. R.3d 693 (1976); Scott, A Psycho-Social Analysis of the Concept of Family as Used in Zoning Laws, 88 Dick.L.Rev. 386 (1983).
. We note the goals of the legislature in establishing standards for the licensure of residential facilities for the developmentally disabled or mentally ill:
"16-13-21-10 Standards for Licensure
Sec. 10. The state standards for licensure of residential facilities under this chapter must, to the extent feasible, assure that the residential facilities simulate a home-like atmosphere for residents,. Residents must have available to them the patterns and conditions of everyday life that are as close as possible to the normal patterns and conditions of individuals who are not developmentally disabled.
(emphasis added).
. The majority construes the language of LC. 16-13-21-12 as establishing, as a matter of law, that a residential facility is a business use. This construction is contrary to the intent of Chapter 21, which defines a group home for developmentally disabled adults as a "residential facility". See LC. 16-13-21-1. A "residential facility" might have some features of a business when run for profit by private persons under the standards provided in Chapter 21 which encourage private development of residential facilities. However, in my opinion, LC. 16-13-21-12 is an attempt, however awkward, by the legislature to prevent a zoning ordinance from excluding a residential facility by labeling it a "business" or "commercial" use.
. The Indiana Constitution, ART. 1 § 24 provides:
"No ex post facto law, or law impairing the obligation of contracts shall ever be passed."
. In Wencke, this court held that the mandatory retirement age of 70 years provided by statute at the time an officer entered the police department was incorporated into the officer's contract of employment and therefore subsequent application by the City of Indianapolis of a later, lowered 65 year age limit constituted impairment of a contractual obligation in violation of both Federal and State constitutions. Judge Shields pointed out that, unlike here, there was no evidence that the legislature intended that reduction of the mandatory retirement age was an exercise of the state's policy power, nor did the City establish the legislation was necessary to promote the public order, safety, health, or general welfare of the community. Wencke, supra, 429 N.E.2d at 298.
. If this were a commercial use, such as a treatment center, nursing home, boarding house, clinic, or small hospital, I would have to consider and address the issue of whether the means used by the legislature were reasonable and whether the means reasonably effectuate the public purpose.
. The amended deed restriction provided in pertinent part:
"3. No lot may be used for the operation of any state licensed residential facility, as that term is defined by Sections 125.2162, 125.286a and 125.583b of the Michigan Compiled Laws on January 1, 1980, such laws being more commonly referred to as M.C.LA. Sections 125.216a, 125.286a and 125.583b. This restriction is to be liberally construed and is meant to exclude the operation of any State of Michigan-licensed facility that provides resident services for six (6) or less persons under 24-hour supervision or care for persons in need of that supervision or care, whether such residential facility is licensed pursuant to Public Act 287 of 1972, as amended, Public Act 218 of 1979, as amended, or pursuant to any Public Act of the State of Michigan that may be adopted in the future which supersedes or amends Public Act 287 of 1972 or Public Act 218 of 1979 in any way.
4. No lot may be used for the operation of any business, enterprise, activity or service where the primary purpose of such business, enterprise, activity or service is to provide shelter, supervision and/or care to other persons in exchange for remuneration of any sort. This restriction shall not be interpreted so as to prevent any property owner within the Huron Woods Subdivision from renting or leasing his home to another person or persons, providing that the person or persons do not then use the home to provide shelter, supervision and/or care to other persons in exchange for remuneration of any kind."