Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 18, 2007
BLOOMFIELD ESTATES IMPROVEMENT
ASSOCIATION, INC.,
Plaintiff-Appellee,
v No. 130990
CITY OF BIRMINGHAM,
Defendant-Appellant.
_______________________________
BEFORE THE ENTIRE BENCH
MARKMAN, J.
We granted leave to appeal to consider: (1) whether the use of a park as a
“dog park” violates a deed restriction limiting use of the land to “residential
purposes only”; and (2) whether a plaintiff has waived the ability to challenge a
violation of a deed restriction when the plaintiff has failed to challenge less serious
violations of the deed restriction in the past. We affirm the judgment of the Court
of Appeals that use of land for a “dog park” violates a deed restriction limiting use
of the land to “residential purposes only.” Moreover, we also affirm the judgment
of the Court of Appeals that a plaintiff may contest a “more serious” violation of a
deed restriction, even if such plaintiff has not contested less serious violations of
the deed restriction in the past. Accordingly, we remand this case to the trial court
for the entry of an order of summary disposition in favor of plaintiff, and for a
determination of the appropriate remedy.
I. STATEMENT OF FACTS
In 1915, the Bloomfield Estates Company recorded deed restrictions on lots
in the Bloomfield Estates subdivision. Among the lots on which the deed
restrictions were imposed was Lot 52, which is the lot at issue in this case.
Around 1928, Bloomfield Township purchased Lot 52 and other restricted
subdivision lots pursuant to a plan to create a park. In 1929, a complaint was filed
by the Bloomfield Township Board of Trustees to remove these deed restrictions,
but the complaint was later voluntarily dismissed. In 1938, defendant city of
Birmingham was deeded the restricted lots being used as a park, including Lot 52.
The quitclaim deeds were “subject to the building and use restrictions of record.”
This land was incorporated into Springdale Park, a 55-acre park administered by
defendant city. Only a portion of Springdale Park is burdened by the deed
restriction at issue in this case. In 1941, plaintiff association was formed to
enforce the deed restrictions on behalf of landowners in the Bloomfield Estates
subdivision. The Bloomfield Estates Company quitclaimed its remaining rights to
plaintiff in 1955.
Springdale Park has been used over the years for a variety of park-related
activities, including those that might be characterized as involving unusual
2
amounts of noise. For example, the park has been used for dances, Girl Scout
camping, and baseball games. However, the Girl Scout camping and the dances
did not occur on land burdened by the deed restrictions. Although baseball games
took place on lots burdened by the deed restrictions in 1947, plaintiff requested
that defendant cease allowing baseball games on these lots. Defendant responded
by stating that “restrictions will be placed on the use of the park,” and “it is not our
intent to use Lots 57 and 58 for baseball games.” Another 1947 letter challenged a
building on Lot 42 that violated the deed restrictions, and defendant responded by
stating that it would remove the building. In 1951, plaintiff again challenged the
use of restricted lots for baseball games and the presence of a maintenance
building on a restricted lot. Defendant responded by noting that baseball had not
been played on the property for 12 months, and that defendant would “remove this
[maintenance] building from this lot.” Although plaintiff has challenged
violations of the deed restrictions occurring on restricted lots of the park, plaintiff
has never challenged the use of the lots as a park.
In 2003, plaintiff became aware that defendant planned to use Lot 52 of
Springdale Park as a “dog park,” a fenced area within which dogs could roam
unleashed. Plaintiff alerted defendant that plaintiff would enforce its rights under
the deed restriction if the dog park was built. In 2004, defendant built the dog
park. At the time the dog park was erected, dogs were not allowed in Springdale
Park, and signs indicated that dogs were prohibited. Plaintiff filed suit against
defendant, seeking enforcement of the deed restriction and injunctive relief against
3
use of Lot 52 as a dog park. Plaintiff also asked the trial court to order defendant
to tear down the fence.
Defendant moved for summary disposition under MCR 2.116(C)(10),
arguing that plaintiff had waived its right to enforce the deed restriction, and that
the use of Lot 52 as a dog park did not violate the deed restriction. The trial court
granted summary disposition to defendant. The trial court ruled that plaintiff had
not waived its right to enforce the deed restriction through acquiescence; however,
the trial court also concluded that the deed restriction was not violated, because the
use of Lot 52 as a dog park constituted a “residential” use.
Plaintiff appealed to the Court of Appeals, and the Court of Appeals
reversed in a split decision. Unpublished opinion per curiam of the Court of
Appeals, issued March 14, 2006 (Docket No. 255340). The Court of Appeals
determined that “reference to dictionary definitions shows that the restriction did
not contemplate using the property as a park.” Id., slip op at 3. Consequently,
“[u]se of Lot 52 as part of a municipal park violates the deed restriction
irrespective of whether part of it is fenced off as a dog park.” Id. Because the lots
had been used as a park for 75 years, “equity will no longer permit plaintiff to seek
enforcement of the deed restriction against that use.” Id., slip op at 4. However,
plaintiff could “challenge more serious or more extensive violations.” Id., citing
Boston-Edison Protective Ass’n v Goodlove, 248 Mich 625, 629-630; 227 NW 772
(1929). Because the dog park constituted a “more serious violation of the deed
restrictions,” plaintiff could challenge that use. Id. Consequently, the Court of
4
Appeals found that the trial court erred in granting summary disposition for
defendant. The Court of Appeals reversed the trial court and remanded for the
entry of an order of summary disposition in favor of plaintiff. It also remanded for
the trial court to determine if an injunction was warranted under these
circumstances.
The dissenting judge would have held that plaintiff could not object to the
use of Lot 52 as a dog park, because “common sense would . . . suggest that while
[Lot 52] has been a park for the past seventy-five years, people have brought their
dogs to this park.” Id., slip op at 2. For that reason, the use of Lot 52 as a dog
park did not constitute a “‘more serious violation of the deed restrictions.’” Id.
We granted defendant’s application for leave to appeal. 477 Mich 958 (2006).
II. STANDARD OF REVIEW
We review de novo the grant or denial of a motion for summary
disposition. Saffian v Simmons, 477 Mich 8, 12; 727 NW2d 132 (2007). The
scope of a deed restriction is a question of law that is reviewed de novo. Terrien v
Zwit, 467 Mich 56, 60-61; 648 NW2d 602 (2002).
III. ANALYSIS
A. VIOLATION OF DEED RESTRICTION
A deed restriction represents a contract between the buyer and the seller of
property. Uday v City of Dearborn, 356 Mich 542, 546; 96 NW2d 775 (1959).
“Undergirding this right to restrict uses of property is, of course, the central
vehicle for that restriction: the freedom of contract, which is . . . deeply entrenched
5
in the common law of Michigan.” Terrien, supra at 71 n 19, citing McMillan v
Mich S & N I R Co, 16 Mich 79 (1867). The United States Supreme Court has
listed the “right to make and enforce contracts” among “those fundamental rights
which are the essence of civil freedom.” United States v Stanley, 109 US 3, 22; 3
S Ct 18; 27 L Ed 835 (1883). We “respect[] the freedom of individuals freely to
arrange their affairs via contract” by upholding the “fundamental tenet of our
jurisprudence . . . that unambiguous contracts are not open to judicial construction
and must be enforced as written,” unless a contractual provision “would violate
law or public policy.” Rory v Continental Ins Co, 473 Mich 457, 468, 470; 703
NW2d 23 (2005) (emphasis in original). As one court has stated:
Courts do not make contracts for parties. Parties have great
freedom to choose to contract with each other, to choose not to do
so, or to choose an intermediate course that binds them in some ways
and leaves each free in other ways. [Rarities Group, Inc v Karp, 98
F Supp 2d 96, 106 (D Mass, 2000).]
“‘Were courts free to refuse to enforce contracts as written on the basis of their
own conceptions of the public good, the parties to contracts would be left to guess
at the content of their bargains . . . .’” Fed Deposit Ins Corp v Aetna Cas & Surety
Co, 903 F2d 1073, 1077 (CA 6, 1990), quoting St Paul Mercury Ins Co v Duke
Univ, 849 F2d 133, 135 (CA 4, 1988). Because the parties have freely set forth
their rights and obligations toward each other in their contract, when resolving a
contractual dispute, “society is not motivated to do what is fair or just in some
abstract sense, but rather seeks to divine and enforce the justifiable expectations of
the parties as determined from the language of their contract.” Rich Products
6
Corp v Kemutec, Inc, 66 F Supp 2d 937, 968 (ED Wis, 1999). Rather than attempt
to apply an abstract notion of “justice” to each particular case arising out of a
contract, we recognize that refusal to enforce a contract is “contrary to the real
justice as between [the parties].” Mitchell v Smith, 1 Binn 110, 121 (Pa, 1804).
See also Brown v Vandergrift, 80 Pa 142, 148 (1875) (holding that enforcing a
contract is “essential to do justice”). Consequently, when parties have freely
established their mutual rights and obligations through the formation of
unambiguous contracts, the law requires this Court to enforce the terms and
conditions contained in such contracts, if the contract is not “contrary to public
policy.”1 Sands Appliance Services, Inc v Wilson, 463 Mich 231, 239; 615 NW2d
241 (2000). When contracts are formed, the parties to the contract are the
lawmakers in such realm and deference must be shown to their judgments and to
their language as with regard to any other lawmaker.
Because of this Court’s regard for parties’ freedom to contract, we have
consistently “support[ed] the right of property owners to create and enforce
covenants affecting their own property.” Terrien, supra at 71. Such deed
restrictions “‘generally constitute a property right of distinct worth.’” Rofe v
Robinson, 415 Mich 345, 350; 329 NW2d 704 (1982), quoting Cooper v Kovan,
349 Mich 520, 531; 84 NW2d 859 (1957). Deed restrictions “‘preserve not only
1
Defendant has not attempted to show that the deed restriction violated
public policy; indeed, we have consistently supported the right of property owners
to form deed restrictions. See Terrien, supra at 71.
7
monetary value, but aesthetic characteristics considered to be essential constituents
of a family environment.’” Rofe v Robinson (On Second Remand), 126 Mich App
151, 157; 336 NW2d 778 (1983), quoting Bellarmine Hills Ass’n v Residential
Systems Co, 84 Mich App 554, 559; 269 NW2d 673 (1978). If a deed restriction
is unambiguous, we will enforce that deed restriction as written unless the
restriction contravenes law or public policy, or has been waived by acquiescence
to prior violations, because enforcement of such restrictions grants the people of
Michigan the freedom “freely to arrange their affairs” by the formation of
contracts to determine the use of land. Rory, supra at 468. Such contracts allow
the parties to preserve desired “aesthetic” or other characteristics in a
neighborhood, which the parties may consider valuable for raising a family,
conserving monetary value, or other reasons particular to the parties.
The deed restriction at issue here states:
Each lot or lots shall be used for strictly residential purposes
only, and no buildings except a single dwelling house and the
necessary out-buildings shall be erected or moved upon any lot or
lots except that Lot 1 may be used for four dwelling houses and the
necessary out-buildings, and that three houses may be erected on
Lots 40 and 41. [Emphasis added.]
At issue then is the meaning of the phrase “strictly residential purposes only.”
Although the deed restriction does not define “residential,” where a term is not
defined in a contract, “we will interpret such term in accordance with its
‘commonly used meaning.’” Terrien, supra at 76-77, quoting Henderson v State
Farm Fire & Cas Co, 460 Mich 348, 354; 596 NW2d 190 (1999). Moreover,
8
under the doctrine of noscitur a sociis, “‘a word or phrase is given meaning by its
context or setting.’” Koontz v Ameritech Services, Inc, 466 Mich 304, 318; 645
NW2d 34 (2002), quoting Brown v Genesee Co Bd of Comm’rs (After Remand),
464 Mich 430, 437; 628 NW2d 471 (2001).
The deed restriction limits the use of restricted land to “strictly residential
purposes only.” The term “residential” means “pertaining to residence or to
residences.” Random House Webster’s College Dictionary (1997). “Residence”
means “the place, esp[ecially] the house, in which a person lives or resides;
dwelling place; home.” Id. The term “residential” in the deed restriction thus
refers to homes where people reside. By using the terms “strictly” and “only,” the
deed restriction seeks to underscore or emphasize that restricted land may only be
used for this purpose.
This conclusion is bolstered by the remaining language in the deed
restriction, which states that “no buildings except a single dwelling house and the
necessary out-buildings shall be erected or moved upon any lot or lots.” This
language indicates that when the deed restriction refers to “residential purposes,”
the intended use is as a “single dwelling house” and immediately related purposes.
The only exceptions listed-- “that Lot 1 may be used for four dwelling houses and
the necessary out-buildings, and that three houses may be erected on Lots 40 and
41”-- further clarify that the term “residential” refers to a “single dwelling house.”
Neither of the two listed exceptions allows for use of Lot 52 as a park. Therefore,
9
the phrase “strictly residential purposes only” precludes use of Lot 52 as a park
and such use violated the deed restriction.
Because use of the restricted land as a park violated the deed restriction, the
use of Lot 52 as a dog park violated the deed restriction as well. Our prior
holdings support this conclusion. Cf. Wood v Blancke, 304 Mich 283, 288-289; 8
NW2d 67 (1943) (The raising of 40 carrier pigeons for private use did not
constitute use for “residence purposes.”). Defendant argues that the deed should
be construed to allow a broad range of activity to be considered “residential.”
Although our courts have noted that “[a] restriction allowing residential uses
permits a wider variety of uses than a restriction prohibiting commercial or
business uses,” Beverly Island Ass’n v Zinger, 113 Mich App 322, 326; 317 NW2d
611 (1982), those cases have concerned a landowner who was using his or her
home for business purposes in addition to residential use. In Beverly, the Court of
Appeals permitted a homeowner to run a small day care facility from her home
because this use was indistinguishable from the use resulting if the homeowner
“simply ha[d] a large family.”2 Id. at 328. In Miller v Ettinger, 235 Mich 527;
209 NW 568 (1926), we allowed a landowner burdened by a restriction that the
land be used “solely for residence purposes” to build an apartment building on the
land. Here, Lot 52 is being used as a park, and prospectively as a dog park.
2
Cf. Terrien, supra at 60, which held that use of land as a day care center
was not permitted under a deed restriction that prohibited use of the land “‘for any
commercial, industrial, or business enterprises.’”
10
Neither of these uses involves the use of Lot 52 as a dwelling place, and
consequently these uses do not conform to the deed restriction.
Defendant further argues that using the land to allow dogs to roam
constitutes a “residential” use because homeowners may allow dogs to wander in
their own backyards under “residential purposes only” restrictions. However, the
instant case is distinguishable from the backyard scenario. Most importantly, a
backyard is attached to a home, and hence fits within the actual meaning of the
term “residential.” That is, a backyard is an extension of a residence. A dog park
is not attached to a home, and hence does not accord with the meaning of the term
“residential.” Moreover, a dog park lacks two characteristics of a backyard, which
suggests that a dog park is not included within the commonly understood meaning
of “residential” use. First, because a backyard is attached to a home, the master
exercises some level of control over the backyard. Here, no one person controls
the dog park. Second, the dog park may permit use by a great multitude of dogs at
one time, while a backyard generally contains at most a few dogs.3 These
characteristics sufficiently distinguish a dog park from the meaning normally
3
Moreover, the number of dogs in a yard may be limited by local
ordinance, while the dog park in this case had no limits on the number of dogs
permitted.
11
ascribed to “residential” use, thereby indicating that the dog park violates the deed
restriction limiting Lot 52 to “residential” use.4
Thus, use of Lot 52 as both a park and a dog park violates the deed
restriction, which limits the use of the land to “residential purposes only.”
B. CONTESTING USE OF LOT 52
Defendant argues that, even if the deed restriction was violated by use of
Lot 52 as a dog park, plaintiff cannot enforce the deed restriction in light of its
acquiescence to prior violations of the deed restriction. That is, defendant
contends that the deed restriction was effectively waived.
With regard to whether a restriction has been waived, we
likewise have said that “whether or not there has been a waiver of a
restrictive covenant or whether those seeking to enforce the same are
guilty of laches are questions to be determined on the facts of each
case as presented.” [Id., quoting Grandmont Improvement Ass’n v
Liquor Control Comm, 294 Mich 541, 544; 293 NW 744 (1940).]
We have found that waiver did not occur if a plaintiff “promptly filed” suit
“[w]hen it became apparent to plaintiff that the owner of [a restricted lot] was
4
Defendant and the dissent argue that we should construe the deed
restriction in light of the applicable zoning ordinances, citing Brown v Hojnacki,
270 Mich 557, 560-561; 259 NW 152 (1935). However, we later said that Brown
confirmed the rule that “ambiguous restrictions may be interpreted in the light of a
general plan.” Smith v First United Presbyterian Church, 333 Mich 1, 8; 52
NW2d 568 (1952) (emphasis added). Because the deed restriction in this case is
not ambiguous, consideration of the zoning ordinances is not necessary.
Defendant and the dissent further argue that the deed restriction should be
construed in favor of the free use of property. See O’Connor v Resort Custom
Builders, Inc, 459 Mich 335, 341-342; 591 NW2d 216 (1999). However, this rule
“should not be applied in such a way as to defeat the plain and obvious purposes
of a contractual instrument or restriction.” Brown, supra at 560.
12
about to use it for commercial purposes [in violation of a deed restriction].”
Baerlin v Gulf Refining Co, 356 Mich 532, 536; 96 NW2d 806 (1959). Defendant
asserts that plaintiff’s failure to “promptly file” suit to preclude the use of Lot 52
as a park effectively waived plaintiff’s ability to contest the use of Lot 52 as a dog
park.
Plaintiff argues, however, that though it has never contested the use of Lot
52 as a park, it may still contest the proposed use of Lot 52 as a dog park. In
Jeffrey v Lathrup, 363 Mich 15; 108 NW2d 827 (1961), we stated the general rule
that if a plaintiff has not challenged previous violations of a deed restriction, the
restriction “does not thereby become void and unenforceable when a violation of a
more serious and damaging degree occurs.” Id. at 22 (emphasis added). See also
Sheridan v Kurz, 314 Mich 10, 13; 22 NW2d 52 (1946); Cherry v Bd of Home
Missions of Reformed Church in United States, 254 Mich 496, 504; 236 NW 841
(1931); Goodlove, supra at 629 (“Plaintiffs are not estopped from preventing a
most flagrant violation of the restrictions on account of their theretofore failure to
stop a slight deviation from the strict letter of such restrictions.”). When
determining whether prior acquiescence to a violation of a deed restriction
prevents a plaintiff from contesting the current violation, we compare the character
of the prior violation and the present violation. Only if the present violation
constitutes a “more serious” violation of the deed restriction may a plaintiff
contest the deed restriction despite the plaintiff’s acquiescence to prior violations
of a less serious character. In general, a “more serious” violation occurs when a
13
particular use of property constitutes a more substantial departure from what is
contemplated or allowable under a deed when compared to a previous violation.
See, e.g., Sheridan, supra (holding that a more serious violation occurred when
noise caused by a later violation represented a dramatic increase from noise caused
by an earlier violation). That is, use that constitutes a “more serious” violation
imposes a greater burden on the holder of a deed restriction than the burden
imposed by a previous violation. Although determining whether a “more serious”
violation occurred will hinge on the facts of a particular case, some relevant
factors that may be considered include: (1) whether the later violation involved the
erection of a structure where no such structure had previously been permitted;5 (2)
whether the later violation constituted a more extensive violation of restrictions on
the size or extent of a building;6 (3) whether the later violation increased the use of
land from a sporadic violation of the restriction to a continuous violation;7 (4)
whether the later violation significantly increased the noise or pollutant level on
restricted land;8 (5) whether the later violation increased the level of traffic
occasioned by the prior violation;9 (6) whether the later violation permitted an
5
See Goodlove, supra.
6
See Kelman v Singer, 222 Mich 454; 192 NW 580 (1923).
7
See Woughter v Van Marter, 281 Mich 408; 275 NW 236 (1937).
8
See Sheridan, supra.
9
Id.
14
action that had been previously prohibited; and (7) whether the later violation
altered in some material respect the character of the use of the restricted
property.10
The dog park constitutes a “more serious” violation of the deed restriction
than the previous uses of Lot 52. First, the dog park includes a permanent
structure-- an enclosed, fenced area-- on Lot 52. Before the dog park, no such
structures existed on the restricted lots. Second, the dog park will create
continuous and systematic use of Lot 52, whereas previously the use of the
restricted lots was irregular and sporadic. Third, the dog park will affirmatively
encourage people to bring their dogs to Lot 52. Before Lot 52 was used as a dog
park, dogs were prohibited from the park by posted “No Dogs” signs. Hence, an
activity that was once expressly prohibited is now sanctioned and encouraged by
the creation of the dog park. Fourth, by encouraging more regular use of Lot 52,
the dog park will generate more traffic in the surrounding neighborhoods than the
previously irregular and sporadic use of the restricted lots. In summation, use of
Lot 52 as a dog park effectively transforms the property from a vacant park to
something akin to a public kennel. Consequently, this use constitutes a “more
10
For example, if the later violation consisted of an “exclusively
commercial” use of restricted land, such as a gas station, whereas prior violations
consisted of commercial activity taking place within a residence, such as a home-
based dressmaking or computer repair establishment, the later violation might well
be determined to alter the character of the use of the restricted property. Polk
Manor Co v Manton, 274 Mich 539, 541-543; 265 NW 457 (1936).
15
serious” violation of the deed restriction than the previous use as an open section
of Springdale Park.
Because plaintiff has previously objected to “more serious” violations of
the deed restrictions that also raised similar concerns of noise and the erection of
permanent structures on restricted land, plaintiff has not, in our judgment, waived
its ability to contest this “more serious” violation.
Defendant raises several arguments in opposition to the application of this
rule. It argues that the park had previously been subject to noisy uses, and thus
plaintiff acquiesced to noisy uses of the park, pointing to the park’s previous use
for overnight Girl Scout camping, large dances, and baseball on permanent
baseball diamonds. However, these uses occurred in sections of the park that were
unburdened by the relevant deed restrictions.11 Defendant would thus require
plaintiff to object to “violations” of the deed restriction that occurred on
unrestricted land, i.e., land uses that simply did not violate deed restrictions.
However, plaintiff would have no authority or basis on which to object to
violations of deed restrictions that did not apply to the land on which the
“violations” occurred. We have never imposed such an obligation on the holders
of a restricted deed. See, e.g., Brideau v Grissom, 369 Mich 661, 667; 120 NW2d
829 (1963) (allowing the plaintiff property owners to enforce a deed restriction on
11
As described earlier, plaintiff objected to use of the park for baseball
games when those games occurred on lots burdened by the deed restrictions.
16
adjacent property even though the plaintiffs had not objected to similar violations
that occurred several blocks away).12
Defendant also argues that allowing plaintiff to contest the dog park after
acquiescing to the park itself will permit those with the right to enforce deed
restrictions to “pick and choose” which violations will be tolerated. However,
allowing a plaintiff to enforce a deed restriction against a “more serious” violation
does not grant that plaintiff an unlimited right to “pick and choose” which
violations to allow and which violations to contest. A plaintiff can only contest
“more serious” violations of the relevant deed restriction. Therefore, a plaintiff
who acquiesces to one violation is thereafter prevented from contesting violations
of an equivalent nature. However, a plaintiff who acquiesces to a seemingly
innocuous violation would not forever be prevented from challenging more serious
violations.
12
Citing Goodlove, supra at 629, defendant further argues that the original
violation must have been a “slight deviation” from the deed restriction, and that
the use of Lot 52 as a park was not a “slight deviation.” But see contra Jeffrey,
supra at 22 (“Where the restriction has been violated in some degree, it does not
thereby become void and unenforceable when a violation of a more serious and
damaging degree occurs.”) (emphasis added); Cherry, supra at 504 (“[T]o the
extent plaintiffs had for a long time acquiesced in defendant’s violation of the
restrictions they were estopped from asking injunctive relief.”) (emphasis added).
Moreover, the facts in Sheridan-- in which the prior violation consisted of the
owner’s operation of an engine repair business in a garage-- could hardly be
considered a “slight deviation” from a “residence purposes only” deed restriction.
Hence, the touchstone of the rule regarding waiver is the disparity between the
prior and the present violations, and not the initial existence of a “slight
deviation.”
17
Defendant essentially proposes a rule that would require those with the
right to enforce deed restrictions to challenge every arguable violation of the deed
restrictions, even minor technical violations, in order to ensure that the deed
restrictions retain their effect. A plaintiff “should not be impelled to engage in
overzealous covenant enforcement fearing possible waiver of future enforcement
rights.” 2 Restatement Property, 3d, § 8.3, comment f, p 502. In this case,
defendant’s proposed rule would prevent plaintiff from challenging the use of Lot
52 for a zoo, a waterpark, or a motocross track. Adopting defendant’s rule would
create increasing chaos in the enforcement of deed restrictions.
IV. RESPONSE TO THE DISSENT
The dissent first concludes that the dog park constitutes a “residential” use
under the terms of the deed restriction. To reach this conclusion, instead of simply
examining the language that the parties themselves employed, the dissent defines
the terms in the deed restriction by considering how other states have construed
altogether different deed restrictions.13 This interpretative technique fails for two
13
The dissent offers two reasons for its rejection of our interpretation of the
deed restriction. First, the dissent relies on the proposition that “restrictive
covenants are to be strictly construed against the party seeking to enforce them
and all doubts resolved in favor of the free use of property.” Post at 4. However,
this rule is “‘applicable only as a last resort, when other techniques of
interpretation and construction have not resolved the question of which of two or
more possible reasonable meanings the court should choose.’” Klapp v United Ins
Group Agency, Inc, 468 Mich 459, 472-473; 663 NW2d 447 (2003) (citation
omitted). Second, the dissent asserts that the majority “reduces to a redundancy
the language prohibiting buildings other than single dwelling houses,” post at 6, by
concluding that the term “residential purposes only” in this particular deed refers
18
reasons. First, the intent of the parties is properly determined from the words used
by the parties themselves, not from the decisions of foreign (or even Michigan)
courts addressing different deeds containing different language. Second, the
majority of the cases cited by the dissent involve deed restrictions that merely
limit the use of property to “residential purposes,” and hence are readily
distinguishable.14 Furthermore, Baker v Smith, 242 Iowa 606; 47 NW2d 810
(1951), merely held that a restriction limiting use to a “dwelling place” did not
preclude use as an apartment building. The instant case obviously does not
involve the use of Lot 52 as a residence in any form. See also Isbrandtsen v North
Branch Corp, 150 Vt 575; 556 A2d 81 (1988) (restriction limiting use to “single-
family residence purposes only” did not preclude an owner from inviting guests to
spend the night).
After arguing that the dog park is a “residential” use, the dissent further
concludes that, even if the dog park is not “residential,” it does not constitute a
to a “single dwelling house.” However, the dissent mischaracterizes this opinion.
We first conclude that the term “residential” refers to a residence or a dwelling
home. Only then, because the deed restriction explicitly limits the use of Lot 52 to
a “single dwelling house,” do we conclude that the deed restriction limits the use
of Lot 52 to a “single dwelling house” and immediately related purposes. Hence,
the dissent’s assertion that we make the term “single dwelling house” a
“redundancy” is completely without basis.
14
See Bagko Development Co v Damitz, 640 NE2d 67 (Ind App, 1994);
Voedisch v Town of Wolfeboro, 136 NH 91; 612 A2d 902 (1992); Winn v
Ridgewood Dev Co, 691 SW2d 832 (Tex App, 1985); Shermer v Haynes, 248 Ark
255; 451 SW2d 445 (1970). The dissent fails to acknowledge that the deed
restriction in this case limits the use of Lot 52 to a “single dwelling house,”
thereby making this case distinguishable from the cases cited.
19
“more serious” violation of the deed restriction. The dissent principally relies on
Cherry to conclude that a “more serious” violation did not occur because a “dog
park is of the same nature as a park.” Post at 13. However, Cherry addressed
whether a plaintiff could contest the defendant’s erection of a new church on
restricted land after the plaintiff had allowed the defendant to continuously operate
a church building on the same property for several years. We held that the
plaintiff could not contest the new church building because “a church is a church,”
and the plaintiff had previously acquiesced to the prior church building. Cherry,
supra at 501. Unlike the church in Cherry, the use of Lot 52 as a dog park differs
considerably from its previous use as a vacant park.
In rejecting our determination that the dog park constitutes a “more
serious” violation, the dissent criticizes this opinion by arguing that “there are no
court findings” in support of our conclusion that the dog park constitutes a “more
serious” violation. Post at 13. However, no “court findings” are necessary. When
a city affirmatively encourages the use of a park for a purpose that previously has
been prohibited,15 the record supports the conclusion that a “more serious”
15
The dissent asserts that “the facts must be considered in the light most
favorable to defendant,” post at 14 n 13, to support its contention that the facts in
this case do not indicate that the dog park constitutes a “more serious” violation.
When considering a motion for summary disposition under MCR 2.116(C)(10), a
court should “draw[] all reasonable inferences in the nonmovant’s favor.” de
Sanchez v Dep’t of Mental Health, 455 Mich 83, 89; 565 NW2d 358 (1997)
(emphasis added). The dissent would apparently find that a reasonable inference
may be drawn that fewer people will use Lot 52 after the erection of the dog park.
However, because Lot 52 has been transformed from a vacant lot to a dog park,
20
violation is shown because some number of people will, in fact, use the park for
that purpose.16
The dissent further criticizes this opinion by stating that a new structure has
not been permitted on Lot 52 because, before the dog park, “it appears that three
sides of the lot were already fenced.” Post at 15. However, even accepting this
fact, the dissent ignores the fact that the building of the dog park required still
another fence to be built, which then fully enclosed the area. Before the dog park,
no such enclosure existed. Moreover, the dissent completely disregards the other
factors that suggest that the dog park constitutes a “more serious” violation.
In conclusion, the dissent’s argument that the parties intended to include a
dog park within the ambit of “residential” use erroneously relies on foreign
precedent rather than on the actual language used by the parties to the deed
restriction. Moreover, although the dissent relies on Cherry to support its claim
that a “more serious” violation did not occur here, Cherry does not support its
and defendant is actively encouraging the use of Lot 52 by dog owners after such
use was previously prohibited, such an inference is not reasonable, in our
judgment.
16
The dissent claims that “we do not know whether dogs were prohibited
from the park” or, if dogs were prohibited, “how long” such a prohibition existed.
Post at 14 n 12. However, the record is clear that, before the introduction of the
dog park, dogs were prohibited. Further, defendant failed to demonstrate that the
prohibition was of recent origin, acknowledging several times at oral argument
that “we don’t know when the [‘No Dogs’] sign went up.” Even supposing that
dogs were permitted in the park for some unknown period before their prohibition,
the dissent simply ignores the difference between an occasional dog in the park
and the regular and continuous use encouraged by a dog park.
21
argument because, unlike the instant case, the prior use in Cherry was
indistinguishable from the use objected to. Further, the dissent’s arguments that
the dog park is not a “more serious” violation of the deed restriction fail to
demonstrate that we have improperly applied the relevant factors in this case.17
V. CONCLUSION
We affirm the Court of Appeals holding that the use of Lot 52 both as a
park and as a dog park violates the deed restriction that limits the use of Lot 52 to
“strictly residential purposes only.” We further affirm the Court of Appeals
conclusion that plaintiff may enforce the deed restriction despite plaintiff’s failure
to contest the use of Lot 52 as a park, because the use of Lot 52 as a dog park
constitutes a “more serious” violation of the deed restriction. We remand this case
to the trial court for the entry of an order of summary disposition in favor of
plaintiff, and for a determination of the appropriate remedy.
Stephen J. Markman
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
Cavanagh, J. I concur in the result only.
Michael F. Cavanagh
17
Although the dissent asserts that this decision will “increase lawsuits,”
post at 16, we have applied this rule for at least 80 years without any appreciable
flood of litigation.
22
STATE OF MICHIGAN
SUPREME COURT
BLOOMFIELD ESTATES IMPROVEMENT
ASSOCIATION, INC.,
Plaintiff-Appellee,
v No. 130990
CITY OF BIRMINGHAM,
Defendant-Appellant.
_____________________________________
KELLY, J. (dissenting).
This is a dispute over a dog park. Three years ago, defendant city of
Birmingham fenced off one acre of property in a city park1 to allow dogs to run
off-lead under the supervision of their owners. Plaintiff Bloomfield Estates
Improvement Association, Inc., sued to block defendant from this use by seeking
to enforce a deed restriction that limited portions of the park to residential
purposes.
A majority of this Court holds that using the lot as a dog park violates the
deed restriction. It also holds that plaintiff can enforce the deed restriction even
though plaintiff failed to object to use of the lot as a park for over 75 years.
Because I disagree on both points, I respectfully dissent.
1
The record suggests that the park itself is fenced and restricted to residents
of the city of Birmingham, perhaps only to fee-paying residents. Others may be
admitted, if at all, only as guests of residents or on an increased fee basis.
FACTS
This case arises out of defendant’s use of lot 52 of Bloomfield Estates
Subdivision. Deed restrictions on the lot were recorded in 1915 by the Bloomfield
Estates Company. The relevant language states that “[e]ach lot or lots shall be
used for strictly residence purposes only and no buildings except a single dwelling
house and the necessary out-buildings shall be erected or moved upon any lot or
lots . . . .”
In 1928, Bloomfield Township purchased lot 52. It planned to use the land
as part of a park. Later that year, the township opened the park, and lot 52 has
been parkland since that date. In 1938, defendant city of Birmingham acquired the
park from the township and renamed it Springdale Park. Since its opening,
various improvements have been made, including addition of a baseball diamond,
golf course, community house, and clubhouse.
In 2004, defendant fenced off a grassy part of lot 52 to be used exclusively
as a dog park.2 After construction of the off-leash dog area, plaintiff, which had
been deeded the rights of Bloomfield Estates Company in 1955, sued to close the
dog park. Defendant moved for summary disposition, and the trial court granted
the motion, finding that plaintiff had not shown that defendant’s use of the lot
violated the deed restriction.
2
Defendant asserts that three sides of the lot were already fenced before it
became a dog park. Appellant’s reply brief, p 2. Plaintiff does not contest that
statement.
2
Plaintiff appealed. In a two-to-one decision, the Court of Appeals reversed.
Unpublished opinion per curiam of the Court of Appeals, issued March 14, 2006
(Docket No. 255340). The Court of Appeals majority found that use of the lot as a
park violated the deed restriction. It also found that plaintiff had acquiesced in the
use and that plaintiff could no longer seek enforcement of the deed restriction
against that use. However, the majority limited the acquiescence to the actual use
to which plaintiff had acquiesced. And because it found that a dog park was a
more serious violation of the restrictive covenant, the majority held that plaintiff
could enforce the deed restriction against that use. Accordingly, the majority
remanded the case to the trial court for entry of summary disposition in plaintiff’s
favor. Judge Borrello dissented. He would have found that plaintiff waived its
objection and was barred from bringing an action to enforce the deed restriction.
Plaintiff applied for leave to appeal in this Court. We granted the
application and directed the parties to include among the issues to be briefed
“whether the use of Bloomfield Estates Subdivision lots in Springdale Park
violates the deed restrictions, whether plaintiff is estopped from seeking
enforcement of the deed restrictions, and what remedies may be available if there
are violations of the deed restriction.” 477 Mich 958 (2006).
STANDARD OF REVIEW
This court reviews de novo a decision whether to grant or deny a motion for
summary disposition. Haynes v Neshewat, 477 Mich 29, 34; 729 NW2d 488
3
(2007). The scope of a deed restriction is also reviewed de novo. Terrien v Zwit,
467 Mich 56, 60-61; 648 NW2d 602 (2002).
USING THE LOT AS A DOG PARK DOES NOT VIOLATE THE DEED RESTRICTION
The relevant portion of the deed restriction provides that lot 52 must be
used for residential purposes. The initial consideration, therefore, is whether a dog
park is consistent with a residential purpose. If it is, then the restriction has not
been violated. Only if use as a dog park is not a residential purpose must the
Court decide whether to enforce the restriction against the dog park.
In giving meaning to the phrase “residential purpose,” an important concept
should be considered. This Court has long held that restrictions on the otherwise
free use of land must be explicit in terms and cannot be enlarged or extended by
construction. In re Nordwood Estates Subdivision, 291 Mich 563, 568; 289 NW
255 (1939). As recently as eight years ago, we reiterated our rule: restrictive
covenants are to be strictly construed against the party seeking to enforce them
and all doubts resolved in favor of the free use of property. O’Connor v Resort
Custom Builders, Inc, 459 Mich 335, 340; 591 NW2d 216 (1999).
Although Michigan courts have been called on to construe restrictions
containing language similar to the covenant involved here, no Michigan court has
ever explicitly defined the phrase “residential purpose.” The majority now does
that. In giving meaning to the phrase, it relies heavily on a dictionary and defines
“residential purpose” to include only “a ‘single dwelling house’ and immediately
4
related purposes.” Ante at 9. On the basis of this definition, the majority finds that
use as a dog park is not a residential purpose.
The majority’s decision is flawed for several reasons. First, ignoring this
Court’s long-established principle of construction, it construes the deed restriction
against, not in favor of, the free use of property. The majority spends pages
discussing the right to contract, never even mentioning the fundamental right of a
landowner to use his or her property as he or she sees fit.3 Because of the vital
importance of this right, any restriction on the future use of real property must be
drawn with particularity. O’Connor, 459 Mich at 340. The restriction at issue
allows the property to be used for residential purposes. Rather than interpreting
this phrase broadly to protect the owner’s right to use the property, the majority
interprets it in an extremely narrow fashion. This is error.
Second, the majority’s definition essentially reads language out of the deed
restriction. The full restriction provides that “[e]ach lot or lots shall be used for
strictly residence purposes only and no buildings except a single dwelling house
and the necessary out-buildings shall be erected or moved upon any lot or
lots . . . .” There are two components to the restriction, one limiting the use of the
lots to residential purposes and a second prohibiting “buildings except a single
dwelling house and the necessary out-buildings.” By defining residential purposes
3
The legal concept of property includes the right to freely use the property.
“‘Property in a thing consists not merely in its ownership and possession, but in
the unrestricted right of use, enjoyment and disposal.’” James S Holden Co v
Connor, 257 Mich 580, 592; 241 NW 915 (1932) (citation omitted).
5
to include only single dwelling homes and immediately related purposes, this
Court reduces to a redundancy the language prohibiting buildings other than single
dwelling houses. If residential purposes include only “a ‘single dwelling house’
and immediately related purposes,”4 then the language in the restriction explicitly
limiting buildings to single dwelling houses would be unnecessary. It is well
established that a construction that would entirely neutralize part of the language
that is being construed should be discarded. See, e.g., DeBoer v Geib, 255 Mich
542, 544; 238 NW 226 (1931).
Because the majority’s dictionary-derived definition of “residential
purposes” violates well-established rules of construction and reduces other
language in the restriction to a redundancy, it must be rejected. In its place, I
would accept the definition adopted by most other states.
Here are but a few of them: In 1994, the Indiana Court of Appeals decided
whether the defendants’ use of their property as a baseball facility violated a
restrictive covenant limiting the property to residential purposes. Bagko Dev Co v
Damitz, 640 NE2d 67, 68 (Ind App, 1994). Because the covenant did not define
the term “residential purposes,” the court found it necessary to give it meaning.
Id. at 70. After reviewing caselaw from other jurisdictions, the court concluded
that a use is for residential purposes as long as the use is “‘distinguishable from
commercial or business use.’” Id. at 70 (citation omitted). And because the
4
Ante at 9.
6
defendants were not using the baseball diamond for business or commercial
purposes, the court held that the restrictive covenant had not been violated. Id. at
71.
Similarly, in 1992, the New Hampshire Supreme Court decided that using
property as a dock did not violate a deed restriction that limited its use to
residential purposes. Voedisch v Town of Wolfeboro, 136 NH 91, 96; 612 A2d
902 (1992). The court held that “covenants restricting the use of property to
‘residential purposes’ merely limit the use of the property to living purposes as
distinguished from business or commercial purposes.” Id.
And in 1985, the Texas Court of Appeals was called upon to decide
whether building a tree house on a lot violated a residential purposes restriction
that ran with the deed. Winn v Ridgewood Dev Co, 691 SW2d 832, 833; (Tex
App, 1985). The court held:
The term “residential purposes” requires the use of property
for living purposes as opposed to business or commercial purposes.
Considering only the evidence favorable to the jury’s finding, we
can find no evidence that Lot 2 was not being used for living
purposes. Since there was no evidence that Lot 2 and the treehouse
were being used for business or commercial purposes, the only
logical conclusion is that it was being used for “living purposes” and
that the character of the treehouse is consistent with a residential use.
[Id. at 835 (citations omitted).]
These three decisions are illustrative of how other states have treated residential
purposes restrictions. They are far from exhaustive. As recognized by the
American Law Reports, “[a]s a general proposition, restrictive covenants built
around the terms “residence” or “residential purposes”. . . merely limit the use of
7
the property to living purposes as distinguished from business or commercial
purposes.”5 Many more state court decisions have employed the same reasoning.
These decisions not only reflect the weight of authority across the country,
they are consistent with Michigan caselaw. See, e.g., O’Connor, 459 Mich at 340
(“‘[a] restriction allowing residential uses permits a wider variety of uses than a
restriction prohibiting commercial or business use’”) (citation omitted); Beverly
Island Ass’n v Zinger, 113 Mich App 322, 326; 317 NW2d 611 (1982) (“A
restriction allowing residential uses permits a wider variety of uses than a
restriction prohibiting commercial or business uses.”).
Yet, rather than consider and give weight to these decisions, the majority
simply takes out a dictionary and crafts its own definition of “residential
purposes.” It ignores learned jurists from this and other jurisdictions representing
decades of experience in interpreting the law.
5
Anno: Restrictive covenant limiting land use to “private residence” or
“private residential purposes”: Interpretation and application, 43 ALR4th 71, 76,
§ 2[a]. See, e.g., Isbrandtsen v North Branch Corp, 150 Vt 575, 581; 556 A2d 81
(1988) (a deed restricting use to “‘residence purposes’ simply limits the use to
residential [as opposed to business or commercial] purposes”); Shermer v Haynes,
248 Ark 255, 260; 451 SW2d 445 (1970) (“‘[i]t is the weight of authority that [a
residential purposes restriction], in and of itself, does not prohibit use of the land
for the various types of multiple dwellings, the courts frequently remarking that
the effect of the term is only to limit the use of the property to living as
distinguished from business or commercial uses’”) (citation omitted); Baker v
Smith, 242 Iowa 606, 609; 47 NW2d 810 (1951) (“it is the weight of authority that
restrictions built around the terms ‘residence’ or ‘residential purposes’, without
more, merely limit the use of the property to living purposes as distinguished from
business or commercial purposes”).
8
It is not uncommon for this Court to adopt other states’ definitions of legal
terms when those states have grappled with similar facts and law.6 In this case, I
would take instruction from some of these jurisdictions and hold that covenants
restricting property to residential purposes “merely limit the use of the property to
living purposes as distinguished from business or commercial purposes.”
Voedisch, 136 NH at 96.
6
See, e.g., Glass v Goeckel, 473 Mich 667, 674 n 4; 703 NW2d 58 (2005)
(“We refer to a similarly situated sister state . . . for a credible definition of a term
long employed in our jurisprudence.”); Dep’t of Civil Rights v Gen Motors Corp,
412 Mich 610, 646; 317 NW2d 16 (1982) (opinion by Williams, J.) (“while we are
certainly not controlled by such case law from other jurisdictions, we can be
guided by it when it is determined to be appropriate and sound”). Indeed, it is
appropriate to “construe ‘technical words and phrases, and such as may have
acquired a peculiar and appropriate meaning in the law’ according to such peculiar
and appropriate meaning.” Greene v A P Products, Ltd, 475 Mich 502, 509; 717
NW2d 855 (2006) (citation omitted). The fact that a large number of sister states
have identically defined “residence purposes” indicates that this phrase has
attained a peculiar and appropriate meaning in the law. The definition that so
many have given the expression is sound.
The majority criticizes me for seeking guidance from sister-state decisions.
It would do better to hold a mirror up to its own decision than to criticize mine.
As far as I can tell, this Court is the only court in the country that has defined a
residential-purpose deed restriction solely by reference to a dictionary definition.
The majority may want to consider why no other court in the country has
employed the method that it has adopted. Other courts uniformly have followed a
method, similar to the one I use, of considering sister-state decisions and
established rules of construction. See, e.g., Bagko. 640 NE2d at 70-71; Shermer,
248 Ark at 260.
The majority also claims that the decisions I cite are distinguishable. The
deed restriction in this case limits the property to residential purposes. The deed
restrictions in the cases I cite limited the properties involved there to residential
purposes. Therefore, these sister-state decisions are instructive in interpreting the
restriction at issue in this case.
9
Here, nothing suggests that the dog park has any business or commercial
purpose. Rather, owning dogs and walking them is a typical, generally accepted
activity for the residents of Birmingham. Accordingly, because a dog park for
residents is a living use of municipal land, I would hold that the deed restriction
has not been violated.7 The trial court was correct and its decision should be
reinstated.
PLAINTIFF WAIVED THE RIGHT TO OBJECT TO USE OF THE LOT AS A DOG PARK
Because I would hold that the use as a dog park is a residential purpose, I
find it unnecessary to determine whether plaintiff waived the right to enforce the
deed restriction. But, because the majority holds that plaintiff can enforce it, I will
offer my thoughts on this issue.
The majority finds that plaintiff is estopped from contesting use of the lot
as a park. Lot 52 has been in a park for at least 75 years. Plaintiff was well aware
of this use. Yet, at no time did it object to or take action to stop it. Even now,
plaintiff does not ask the Court to prevent lot 52 from reverting to being part of
Springdale Park. Even if it did, the majority opines, equity would bar plaintiff
from preventing use of the land as a park. See Cherry v Bd of Home Missions of
Reformed Church in United States, 254 Mich 496, 503-504; 236 NW 841 (1931).
7
The zoning ordinances of the city of Birmingham and Bloomfield
Township list such things as parks, playgrounds, and recreational facilities as
principal uses in residential districts. Because deed restrictions are to be construed
in light of surrounding circumstances, these zoning ordinances add support to my
conclusion that use as a dog park is a residential purpose. See Brown v Hojnacki,
270 Mich 557, 560-561; 259 NW 152 (1935).
10
Nonetheless, the majority holds that plaintiff may challenge use of the lot
as a dog park. The reason it gives is that a dog park is a more serious violation of
the deed restriction than a city park. Once again, I disagree.
In Boston-Edison Protective Ass’n v Goodlove,8 this Court was called upon
to decide whether the plaintiff homeowners association was estopped from
enforcing deed restrictions limiting the property in question to single dwelling
houses. Goodlove, 248 Mich at 627. The defendant, a practicing physician, had
incorporated his medical office into his home and worked there for years without
objection. Id. at 628. When the defendant, because of increasing business,
decided to build an office building on the land, the plaintiff objected, claiming that
this use violated the deed restrictions running with the property. The issue was
whether the plaintiff had waived the right to enforce the restriction by failing for
years to object to use of the property as a doctor’s office. Id. at 629. The Court
decided that the plaintiff could enforce the restriction. It stated:
While it is true that there has been no objection made to the
defendant’s practicing medicine at his home and using it as a
doctor’s office where patients consulted him, nevertheless, the
defendant should not be able to violate further rights of plaintiffs on
account of his theretofore slight breach of the restrictive covenants
in his deed. Plaintiffs are not estopped from preventing a most
flagrant violation of the restrictions on account of their theretofore
failure to stop a slight deviation from the strict letter of such
restrictions. While it is true that by their acquiescence they may not
be able to enjoin defendant from continuing to use his present home
to the extent that it has been heretofore used as a doctor’s office,
they are still in a position to stop the more serious violation of the
8
248 Mich 625; 227 NW 772 (1929).
11
restrictions that would result from the erection of a new or adjoining
building, one story in height, without basement, etc., which does not
conform with the restrictions of the subdivision. [Id. at 629-630.]
Accordingly, the general rule is that a plaintiff is “not estopped from
preventing a most flagrant violation of the restrictions on account of their
theretofore failure to stop a slight deviation from the strict letter of such
restrictions.” Id. at 629 (emphasis added). See also Jeffery v Lathrup, 363 Mich
15, 22; 108 NW2d 827 (1961) (a deed restriction that has been violated in some
degree “does not thereby become void and unenforceable when a violation of a
more serious and damaging degree occurs”).
In Cherry, this Court applied this rule and decided whether the plaintiff
property owners should be estopped from enforcing deed restrictions that limited
use of certain property. Cherry, 254 Mich at 497-499. Despite the fact that the
deed restricted the property to dwelling house purposes, the defendant planned to
replace its existing church with a new church on the same property. Id. at 499.
Ultimately, this Court refused to allow the plaintiffs to enforce the deed restriction.
We are not impressed with plaintiffs’ claim that defendant’s
building program will constitute an extension of the violation of the
building restrictions which has already been countenanced. It is
true the new building as planned will be somewhat larger, will
occupy a different portion of the lots and will face on Dexter
boulevard instead of Joy road. But a church is a church; and it
cannot well be asserted that only so much of a church site as is
actually occupied by the edifice located thereon is used for church
purposes. It is common practice to use the adjacent lot area for
parking purposes. It is by no means uncommon for outdoor church
gatherings to make use of the whole or any part of the church yard.
Defendant clearly has the right so to use its premises. [Id. at 501.]
12
Cherry is important because it illustrates that a use that is of the same
nature as a previous, unobjected-to use will not amount to a “flagrant violation.”9
Here, plaintiff acquiesced in the use of the lot as a park. Plaintiff objected only
when defendant began using the lot as a dog park. A dog park is of the same
nature as a park. Hence, because the proposed use is of the same nature as the
unobjected-to use, plaintiff cannot enforce the deed restriction against the dog
park. Indeed, just as Cherry determined that the plaintiffs there could not enforce
the deed restrictions because “a church is a church,” plaintiff here cannot enforce
the deed restriction because a park is a park.10
The majority reaches the opposite conclusion and decides that a dog park is
a more serious violation. In so doing, it considers a number of statements
presumably drawn from the briefs and affidavits used during the motion for
9
This is consistent with prior decisions of this Court. See, e.g., Sheridan v
Kurz, 314 Mich 10, 13; 22 NW2d 52 (1946) (The plaintiff could enforce a
restriction against the defendant’s use of the property as a commercial garage.
Even though the prior owner violated the restriction, the prior owner used the
garage for research, not commercial, purposes.); Rich v Isbey, 291 Mich 119; 288
NW 353 (1939) (The plaintiffs could not enforce a height restriction against the
defendant’s fence because previously the plaintiff had failed to object to hedges
that violated the height restriction.); Polk Manor Co v Manton, 274 Mich 539,
541-543; 265 NW 457 (1936) (The plaintiff could enforce a restriction even
though the plaintiff had failed to object to prior violations. Unlike the prior
violations that mingled residential and commercial activity, the defendant’s use of
the property was to be solely for commercial purposes.).
10
The majority recognizes that the plaintiff in Cherry could not contest the
new building because “a church is a church.” Nonetheless, the majority claims
that my reliance on Cherry is misplaced. Its position is inconsistent. There is no
principled reason for finding that “a church is a church,” but a park is not a park.
13
summary disposition. Ante at 15-16. However, there are no court findings
substantiating these statements. For example, the majority takes as fact that the
dog park has generated more automobile traffic. The trial court made no such
finding.11 Also, the majority incorrectly asserts that dogs were prohibited from
being on the property before lot 52 was transformed into a dog park. The trial
court did not make this finding.12 Given that defendant contests most or all of
these points, it is error for the majority to rely on them as true.13 See appellant’s
brief, pp 26-28.14
11
Two affidavits offered by plaintiff contain this statement: “I have no
doubt that we will experience increased noise from barking dogs and traffic, the
presence of strangers and strange dogs, the risk of residents being bitten and dogs
jumping the fence, odors from dog droppings, and a deterioration in property
values as to any property within sight or sound of Lot 52.”
12
Without factual findings by the trial court, we do not know whether dogs
were prohibited from the park before the lot was made into a dog park. The fact
that someone once saw a “No Dogs” sign proves only that a sign was posted by
someone for an unknown period. Without knowing how long the sign was up and
whether its command was actually followed, the majority should be wary of
concluding that dogs generally were absent from the park.
13
Aside from the fact that defendant contests plaintiff’s version of the facts,
there is an additional problem with the majority accepting plaintiff’s rendition of
the facts as truth. Because the issue is whether plaintiff is entitled to summary
disposition (the Court of Appeals remanded the case for the entry of an order of
summary disposition for plaintiff), the facts must be considered in the light most
favorable to defendant. The majority should not accept as true contested facts
asserted by plaintiff.
14
E.g., defendant wrote: “No traffic or noise studies or any other impact
analysis have been performed by Appellee or anyone else.” Appellant’s brief, p
26.
14
No factual findings were ever made to suggest that the dog park has
brought continual and systematic use of lot 52 where before the use was irregular.
Yet, the majority relies on this as a fact. The majority also assumes that
establishment of the dog park required a structure where no structure had
previously been permitted. No factual findings support that assumption. In fact, it
appears that three sides of the lot were already fenced. Given that three sides of
the lot were already fenced, it is bizarre, and obviously wrong, for the majority to
conclude that no structure previously existed on the lot. If these “facts” are
disregarded, as they must be, only one of the statements identified and relied on by
the majority remains to support its conclusion: residents of Birmingham have
been encouraged to bring their dogs to run off-leash in the dog park. This cannot
constitute a more serious violation of the restriction.15
15
The majority even goes so far as to claim that no court findings are
necessary for its decision. As support for this position, it makes the blanket
assertion that “[w]hen a city affirmatively encourages the use of a park for a
purpose that previously has been prohibited, the record supports the conclusion
that a ‘more serious’ violation is shown.” Ante at 20-21. This cannot be true. For
example, assume that a deed restriction prohibited people from using city park
property. Assume, also, that the city allowed touch football but prohibited
meditation in the park. Assume it was concerned that an oblivious meditator
might be injured by an errantly tossed football. But after a public outcry from
those who greatly enjoy meditating in the open air, the city decides to reverse
course and prohibit all activity except meditation. This example illustrates the
fallacy of the majority’s blanket assertion. It cannot seriously be argued that
meditation is a more serious violation of the deed restriction than touch football.
Accordingly, it does not follow from the fact that a city affirmatively encourages a
use that was previously prohibited that the use constitutes a more serious violation
of a deed restriction. Factual findings are necessary.
15
Another serious fault of the majority decision is that it effectively gives
people broad discretion to pick and choose which violations of the restrictive
covenant will be tolerated. This will encourage someone to try to enforce a
restriction after a very minor change in usage. Using today’s decision, a plaintiff
could disregard for years a use that is arguably contrary to a deed restriction, then
object and prevent another use that is only marginally different. Besides being
fundamentally unfair, permitting this pick-and-choose approach will enhance
unpredictability in the law and increase lawsuits.
As a result of the above problems, the majority’s approach should be
rejected. In its place, I would hold that a use that is of the same nature as a
previously unobjected-to use cannot amount to a “flagrant violation.” And
because a dog park is of the same nature as a city park, I would find that plaintiff
cannot enforce the deed restriction that runs with lot 52.
CONCLUSION
The city of Birmingham has set aside a small fenced portion of one of its
parks for the use of city residents and their dogs. Nothing indicates that this
grassy acre, called a “dog park,” has actually occasioned annoyance to anyone in
the area. There is no evidence that it has been heavily used, is noisy, smelly, or
has drawn increased automobile traffic. On the contrary, during the past three
years, the dog park appears to have admirably filled a genuine need of dogs and
dog owners in the community. It has provided a spot where canine pets can
exercise off-leash, safely, under supervision, and without disturbing people.
16
The only nonspeculative objection raised about this community service is
that a deed restriction, confining the land to residential purposes, outlaws it. On
this basis, a majority of the Court has effectively closed the dog park. Presumably,
now, the land will again be used as a city park, as it was for more than 70 years
before. In that way, in the eyes of the law, the use will be proper.
I have great difficulty accepting that the use of this land as a city park
conforms to the deed restriction better in any sense than its use as a dog park. My
thinking is, if a park is a residential use of the land, so is a dog park. Conversely,
if a dog park is not a residential use of the land, then neither is a city park.
No one claims that the dog park exists for a business purpose or for an
industrial purpose. In a legal sense, what other purpose remains, aside from a
residential purpose? Most other courts have followed this reasoning and have
defined a residential purpose to include such things as a baseball diamond, a boat
dock, and a tree house. I agree with them.
But even if I did not, and assuming the use is nonconforming, the time has
long since passed when plaintiff could be heard to complain. For over seven
decades, plaintiff’s members have acquiesced in the use of this property as a park.
Even now, they express no displeasure in it once again reverting to parkland. But
they object to the dog park. How can it be that the Court allows plaintiff to pick
and choose which nonconforming use of the land to object to and which to ignore?
Surely, in the eyes of the law, after all these years, plaintiff has waived its claim.
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This decision is a doggone shame. It has alarming implications for
tomorrow’s interpretations of restrictive covenants in Michigan. And, coming as
it does during the dog days of summer when all four-legged creatures long to romp
outdoors unrestrained, it marks a howling defeat for Birmingham’s canine
residents.
Marilyn Kelly
Elizabeth A. Weaver
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