dissenting.
Six months ago in Clem v. Christole (1990), Ind.App., 548 N.E.2d 1180 this district decided that IC 16-13-21-14 concerning so-called group homes could not survive constitutional challenge to the extent that it attempted to declare theretofore valid and existing restrictive covenants in private residential subdivisions invalid. In so deciding the Clem court followed this district's earlier decision in Adult Group Properties v. Imler (1987), Ind.App., 505 N.E.2d 459 which dealt with a prior version of the same statute. Today the court overrules those decisions and I have concluded that I must dissent.
I consider it important to point out at the beginning that (1) I accept the notion of the social utility of providing homes for the developmentally disabled in ordinary residential areas and the power of the legislature to support it; and (2) I strongly suspect that those opposing the location of such a group home in a residential neighborhood are reacting emotionally and irrationally. It is precisely for these reasons that I dissent. For our constitution means nothing if it may be invoked only against "bad" laws. If that be the case we are left to the merey of some individual's or small group's momentary view of what appears good or bad.
There can be no doubt that the restrictive covenants adopted when this subdivision was created were valid and enforceable at that time. To the extent we are concerned here, they simply limit the area to single family dwellings and residential purposes. Commercial and business uses within the area are prohibited.
The statute in question, IC 16-18-21-14, purports to declare all such restrictions created prior to April 1, 1988 void to the extent that they would prohibit the use of the property as a residential facility for developmentally disabled or mentally ill persons.
Article 1, § 24 of the Constitution of the State of Indiana provides simply and clearly:
No ex post facto law, or law impairing the obligation of contracts shall ever be passed.
As our supreme court held in Pulos v. James (1973), 261 Ind. 279, 302 N.E.2d 768, in invalidating a legislative attempt to al low zoning authorities to alter plats and change or delete restrictive covenants contained in them,
*836... the Legislature may prohibit contracts that are against public policy, [but] it, nevertheless, may not impair previously legal contracts after the rights thereunder have vested.
302 N.E.2d at 775.
Additionally, the court in Pulos found that restrictive covenants in plats create property rights in the grantees that cannot be taken without due process of law and the payment of just compensation. 8302 N.E.2d at 771.
Perhaps there is an equal protection argument that would invoke the supremacy of the federal constitution in favor of the developmentally disabled, but if there is, it has not been made.
Despite its salutary purposes, IC 16-13-21-14 violates the Indiana Constitution. It cannot, therefore, be permitted to stand.
I dissent.