 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
Mains Farm v. Worthington, 64 Wn. App. 171, 824 P.2d 495 (1992)
[No. 13085-8-II. Division Two. February 5, 1992.]
MAINS FARM HOMEOWNERS ASSOCIATION, ET AL,
Respondents, v. SALIMA WORTHINGTON,
ET AL, Appellants.
[1] Judgment - Summary Judgment - Review - Issues of Law -
Scope of Review. When reviewing a summary judgment, an appellate
court reviews all questions of law de novo.
[2] Covenants - Construction - Plain Meaning. When
interpreting a restrictive covenant, a court must give clear and
unambiguous language its plain and obvious meaning.
172 MAINS FARM v. WORTHINGTON Feb. 1992
64 Wn. App. 171, 824 P.2d 495
[3] Covenants - Construction - Question of Law or Fact. The
meaning of the words in a restrictive covenant is an issue of law.
[4] Covenants - Construction - "Business" - What
Constitutes. A business use of property that is greater than incidental
to a residential purpose violates a covenant restricting the use of
property to single family residential purposes only. A "business"
includes any human efforts conducted for the purpose of earning a
living or profit.
[5] Covenants - Construction - "Business" - Adult Family
Home - In General. Providing residential space and varying degrees of
care to unrelated elderly adults in return for money violates a covenant
restricting the use of property to single family residential purposes only.
[6] Injunction - Determination - Public Interest. A trial
court may consider the interest of the public when deciding whether to
issue an injunction.
[7] Covenants - Validity - Test. Restrictive covenants are
valid if they are reasonable and reasonably exercised.
[8] Covenants - Construction - "Business" - Adult Family
Home - Public Interest. The interest of the public in encouraging
alternative residential care facilities for elderly persons does not
override a covenant restricting the use of property to single family
residential purposes only.
[9] Statutes - Construction - Unambiguous Language - In
General. Statutory language having a plain meaning is not subject to
judicial construction.
[10] Covenants - Construction - "Business" - Adult Family
Home - Zoning Statute - Effect. Laws of 1989, 1st Ex. Sess., ch. 9, SS
815(2), which provides that an adult family home constitutes a
residential use for zoning purposes, does not have the effect of making
an adult family home a residential use for restrictive covenant purposes.
Nature of Action: A homeowners association sought to
enjoin the use of a house as an adult family home. A restrictive
covenant limited the use of the lot to "single family residential purposes
only".
Superior Court: The Superior Court for Clallam County,
No. 88-2-00339-7, Grant S. Meiner, J., on July 7, 1989, granted a
summary judgment in favor of the homeowners association.
Feb. 1992 MAINS FARM v. WORTHINGTON 173
64 Wn. App. 171, 824 P.2d 495
Court of Appeals: Holding that the defendant's business
use of her property was inconsistent with a residential purpose and that
enforcement of the covenant did not violate public policy or statutory
law, the court affirms the judgment.
Alan E. Millet and Millet & Mauhar, P.S.; Joseph Lavin
and Taylor & Taylor, for appellants.
Kenneth Williams and Johnson & Williams, for respondents.
ALEXANDER
ALEXANDER, J. - Salima Worthington and Raymond E.
Miller appeal an order of the Clallam County Superior Court. The order
denied their motion for summary judgment and granted summary
judgment to Mains Farm Homeowners Association for an injunction
preventing Worthington from operating an adult family home in the
Mains Farm subdivision in Sequim. Worthington and Miller contend on
appeal that the Superior Court wrongly concluded that: (1) the
operation of an adult family home violated restrictive covenants limiting
the use of the lots in the subdivision to "single family residential
purposes only"; and (2) the restrictive covenants did not violate public
policy. We affirm.
In December 1986, Salima Worthington obtained a license from the
Department of Social and Health Services to run what is referred to as
an "adult family home". Former WAC 388-76-030(2). Worthington's
license permitted her to provide full family care for up to four unrelated,
elderly adults. Worthington ran the family home in a residence she
rented in the Sol Mar area of Clallam County.
In December 1987, Worthington purchased a home in the Mains Farm
subdivision near Sequim. Worthington was aware at the time she
purchased the home that there were restrictive covenants governing
the subdivision. The pertinent restrictive covenant reads as follows:
All lots or tracts permitted in Mains Farm shall be designated as
"Residence Lots," and *shall be used for single family residential
purposes only*.
(Italics ours.)
174 MAINS FARM v. WORTHINGTON Feb. 1992
64 Wn. App. 171, 824 P.2d 495
Worthington admits that at the time that she made the purchase she
intended to operate an adult home facility in the residence. The Mains
Farm Homeowners Association eventually became aware of the
intended use and, in January 1988, the president of the Association
sent a letter to Worthington stating that the Association's board of
directors had decided that the proposed use of the residence violated
the Mains Farm restrictive covenants. Nevertheless, Worthington
continued with her plans to operate an adult family home facility.
After completing some remodeling of her home to accommodate four
unrelated, elderly adults in need of "full family care", /1 Worthington,
together with her two daughters and four unrelated adults, moved into
the home. Worthington generally provided the care to the elderly
residents herself, but when unable to so, she employed other persons
to provide the 24-hour services in her stead. Worthington received
compensation from the elderly residents in amounts ranging between
$500 and $1,000 per month per person, depending on the degree of
care required.
After making several additional requests that Worthington discontinue
using her home for an "adult foster care commercial enterprise", the
Mains Farm Homeowners Association filed a complaint in the Clallam
County Superior Court, alleging that Worthington's use of her home
violated the restrictive covenants. It sought to enjoin Worthington from
running the adult foster care facility in her home. The Association and
Worthington filed cross motions for summary judgment. The Superior
Court granted the Association's motion and denied Worthington's. It
concluded that Worthington's use of her home violated the restrictive
covenants because the use was not "residential only", the "commercial
elements" of the adult family home operation overriding the residential
aspects of the use.
---------------
1 Full family care is defined as 24-hour protective supervision and care
for an adult in need of personal and special care. Laws of 1989, ch.
427, SS 14.
Feb. 1992 MAINS FARM v. WORTHINGTON 175
64 Wn. App. 171, 824 P.2d 495
[1] Initially, we observe that the issues in this case were
ripe for summary judgment, the parties conceding that there are no
material factual disputes about the nature of the activities carried on in
Worthington's residence. Summary judgment is appropriate if there is
no genuine issue as to any material fact and the moving party is
entitled to a judgment as a matter of law. CR 56(c). On review of a
summary judgment, this court reviews all questions of law de novo.
Hoffer v. State, 110 Wn.2d 415, 755 P.2d 781 (1988), aff'd, 113 Wn.2d
148 (1989).
MEANING OF THE RESTRICTIVE COVENANT
[2, 3] In order to determine if the trial court erred in ruling, as a matter
of law, that Worthington's use of her home was not residential, we must
look to the language of the restrictive covenant in question. We do this
because, although courts should not give a covenant a broader than
intended application, "it is well settled that a covenant should not be
read in such a way that defeats the plain and obvious meaning of the
restriction." Lakes at Mercer Island Homeowners Ass'n v. Witrak, 61
Wn. App. 177, 180, 810 P.2d 27 (1991). The meaning of words in a
restrictive covenant is a question of law for the court. Krein v. Smith, 60
Wn. App. 809, 811, 807 P.2d 906, review denied, 117 Wn.2d 1002
(1991).
In construing the meaning of a covenant, clear and unambiguous
language will be given its manifest meaning; restrictions in derogation
of the free use of land will not be extended to include any use not
clearly expressed; doubts will be resolved in favor of the free use of
land; and the instrument containing the restriction will be considered in
its entirety with any attendant circumstances taken into consideration
when the meaning is doubtful.
Hagemann v. Worth, 56 Wn. App. 85, 90, 782 P.2d 1072
(1989). The words in the covenant should be given their "'ordinary and
common use'." Krein v. Smith, supra at 811.
As noted above, the Superior Court reasoned that Worthington's use
of her residence was not for "single family residential purposes only"
because of what it
176 MAINS FARM v. WORTHINGTON Feb. 1992
64 Wn. App. 171, 824 P.2d 495
concluded were "commercial element[s]" of the adult family home
operation. Worthington argues to us, as she did at the trial court, that
the use of her home as an adult family home was not violative of the
restrictive covenants, because the use was for "single family residential
purposes only", and not for a commercial enterprise. We disagree.
[4, 5] In a strikingly similar case, Division Three of this court, after
noting that the terms "business" and "residential" are antonyms, held
that the providing of a residence for elderly paying customers is a
business use and not a residential use. Hagemann v. Worth, 56 Wn.
App. at 91. In Hagemann, the covenant restricted building to
"'single-family residences'" and prohibited "'business, industry or
commercial enterprise of any kind or nature . . .'." Hagemann, 56 Wn.
App. at 87. The word "business" has been said to be "a very
comprehensive term, . . . embrac[ing] everything about which a person
can be employed. . . .
[t]hat which occupies the time, attention, and labor of men for the
purpose of livelihood or profit." International Shoe Co. v. State, 22
Wn.2d 146, 169, 154 P.2d 801, aff'd, 326 U.S. 310, 90 L. Ed. 95, 66 S.
Ct. 154, 161 A.L.R. 1057 (1945); State ex rel. Columbia Broadcasting
Co. v. Superior Court, 1 Wn.2d 379, 383, 96 P.2d 248 (1939), rev'd on
other grounds, 310 U.S. 613, 84 L. Ed. 1389, 60 S. Ct. 1085 (1940). In
Hagemann, the court observed that the word "business", in its ordinary
and common use, is defined as "human efforts which have for their end
living or reward." Hagemann, 56 Wn. App. at 90 (quoting Burton v.
Douglas Cy., 65 Wn.2d 619, 623, 399 P.2d 68 (1965) (quoting
Easterbrook v. Hebrew Ladies Orphan Soc'y, 85 Conn. 289, 299, 82 A.
561 (1912))). We reach the same conclusion about the activity here as
did the court in Hagemann. The use Worthington intended to make of
her home was essentially a business use. It was inconsistent with a
residential purpose. In support of her position, Worthington cites
Hunter Tract Imp. Co. v. Corporation of Catholic Bishop, 98 Wash. 112,
167 P. 100 (1917), a case in which the court was faced with a claim
that the use of a residence as a convent for the
Feb. 1992 MAINS FARM v. WORTHINGTON 177
64 Wn. App. 171, 824 P.2d 495
Ursuline Catholic Sisterhood violated a covenant restricting the use of
any lots described in the deed to "residence purposes only". The court
concluded there that the use of the home as a convent was a
residential purpose because the restriction of use for "'residence
purposes' referred to the mode of occupancy, and so long as the
building was used as a place of abode and no business [was] carried
on there, it would be used for residence purposes only." Hunter, 98
Wash. at 117.
We do not find the opinion in Hunter to be inconsistent with Hagemann.
In Hunter, the court determined that simply because occupants of a
house were members of a particular group and were holding religious
services did not convert an essentially residential use to a business or
commercial use. It held that the use that the Order made of their home
was mainly residential and that any other use was incidental to that
residential purpose. Hunter, 98 Wash. at 115. The court did
acknowledge, however, that if the home had been used for the training
of women who were seeking admission to the convent, the home might
lose its residential character. Hunter, 98 Wash. at 115.
The use that Worthington made of her home is unlike that which the
court reviewed in Hunter. It is more akin to the use in Hagemann.
Worthington's use of her home for a commercial purpose was not
incidental to the residential purpose. Rather, the residential purpose
was incidental to the business purpose. The uncontroverted facts are
that Worthington provides 24-hour care to four elderly residents for
fees of $500 to $1,000 per person per month. In addition, she
occasionally hires outside help to assist her in this enterprise. Although
a purpose of this enterprise was to provide a residence for elderly
persons, a substantial entrepreneurial purpose was at the core of her
efforts.
Worthington asserts, additionally, that she is merely a servant" to the
resident, nonowners of her home. She points out that the Mains Farm
covenants allow the provision of "quarters for servants for the single
family in ownership". Worthington's position is without any merit. The
178 MAINS FARM v. WORTHINGTON Feb. 1992
64 Wn. App. 171, 824 P.2d 495
elderly paying residents are not owners of the residence. Furthermore,
Worthington is not a servant of the paying residents. The ordinary
meaning of "servant" is "[o]ne employed to perform service in master's
affairs, whose physical conduct in performance of the service is
controlled or is subject to right to control by the master." Black's Law
Dictionary 1533 (4th ed. 1968). Worthington, as the owner of the
residence and as a licensed operator of an adult family home, is not
subject to control by the other residents and cannot, under any stretch
of the imagination, be viewed as a servant "for the single family in
ownership".
PUBLIC POLICY
Worthington also argues that even if the use violated the Mains Farm
restrictive covenants, the covenants should not be enforced by
injunction because they violate public policy. She points out that the
Legislature fairly recently adopted legislation acknowledging the need
for services and care of the functionally disabled, seeking to ensure
that options such as "community residential facilities" will be developed.
Laws of 1989, ch. 427, SSSS 1, 2(4) (effective May 14, 1989). As part
of that enactment, the Legislature found "that adult family homes are
an important part of the state's long-term care system" and "provide an
alternative to institutional care and promote a high degree of
independent living for residents." Laws of 1989, ch. 427, SS 14.
Worthington suggests that these enactments demonstrate a
recognition by the Legislature that maintaining disabled persons
outside of institutions is of greater value to the public than is the right
to restrict the use of land. Worthington contends that the Legislature
has clearly resolved the issue in her favor by adopting the following
provision relating to zoning:
An adult family home shall be considered a residential use of property
for zoning purposes. Adult family homes shall be a permitted use in all
areas zoned for residential or commercial purposes, including areas
zoned for single family dwellings.
Laws of 1989, 1st Ex. Sess., ch. 9, SS 815(2).
Feb. 1992 MAINS FARM v. WORTHINGTON 179
64 Wn. App. 171, 824 P.2d 495
[6] In determining whether or not to issue an injunction,
the trial court may consider, if appropriate, the interest of the public.
Tyler Pipe Indus., Inc v. Department of Rev., 96 Wn.2d 785, 792, 638
P.2d 1213 (1982); Hagemann, 56 Wn. App. at 92. Generally, public
policy favors the free use of one's own land. White v. Wilhelm, 34 Wn.
App. 763, 772, 665 P.2d 407, review denied, 100 Wn.2d 1025 (1983)
(quoting Gwinn v. Cleaver, 56 Wn.2d 612, 615, 354 P.2d 913 (1960)).
A contractual provision such as a restrictive covenant may, however,
violate public policy when "'. . . the contract as made has a "tendency
to evil," to be against the public good, or to be injurious to the public.'"
Thayer v. Thompson, 36 Wn. App. 794, 796, 677 P.2d 787 (1984)
(quoting Golberg v. Sanglier, 27 Wn. App. 179, 191, 616 P.2d 1239
(1980), rev'd on other grounds, 96 Wn.2d 874, 639 P.2d 1347 (1982));
see also RCW 49.60.224 (provisions in written instruments relating to
real property which purport to forbid or restrict the conveyance,
encumbrance, occupancy, or lease to persons of a specific race,
creed, color, national origin or with any handicap are void and unfair
practices).
[7] Nevertheless, courts also recognize the necessity of enforcing
restrictive covenants to protect property owners from increased
pressures of urbanization. Witrak, 61 Wn. App. at 179. The modem
view is that building restrictions are for the protection of the public as
well as the property owner and that such restrictions, in order to be
valid, need only be reasonable and reasonably exercised. Thayer v.
Thompson, 36 Wn. App. at 797.
[8] In Hagemann, the court determined that, although the development
of foster homes is a laudable public policy, covenants prohibiting
business or commercial enterprises in an area restricted to single
family residences "does not impede furtherance of the public's interest
in developing alternative residential care for the elderly", and such
policy does not override a contractual prohibition against the location
of such facilities. Hagemann, 56 Wn. App. at 92. We agree with that
view.
180 MAINS FARM v. WORTHINGTON Feb. 1992
64 Wn. App. 171, 824 P.2d 495
The only public policy issue left unanswered in Hagemann /2
was "whether zoning may override the constitutional contractual right of
parties to covenant". Hagemann, 56 Wn. App. at 92. Worthington
argues that the zoning legislation referred to above is a clear indication
that public policy favors "adult family homes" over restrictive covenants
barring them. Her argument ignores the fact that the enactment only
relates to the zoning of land. Zoning is a public restriction on the use of
land, whereas restrictive covenants are private restrictions. Thayer v.
Thompson, supra. Although generally a restrictive covenant is not
grounds for denial of a zoning variance, the private covenant may
provide grounds for a separate action to enjoin the usage of land in
violation of the restrictions. Martel v. Vancouver, 35 Wn. App. 250, 257,
666 P.2d 916 (1983).
[9, 10] Where statutory language is plain, it is not open to construction
or interpretation. Crown Cascade, Inc. v. O'Neal, 100 Wn.2d 256, 262,
668 P.2d 585 (1983). In our judgment, the legislature only restricted
the public's right to zone adult family homes out of residential areas.
The enactment did not, either explicitly or implicitly, restrict the right of
private homeowners to adopt covenants which forbid certain uses of
land in residential areas.
Affirmed.
PETRICH, C.J., and WORSWICK, J. Pro Tem., concur.
Review granted at 119 Wn.2d 1001 (1992).
---------------
2 Before Hagemann was decided, legislation that would have made
adult homes a residential use of property for zoning purposes was
vetoed by the Governor. That legislation has since been reenacted.
Laws of 1989, 1st Ex. Sess., ch. 9, SS 815(2).
[No. 13085-8-II. Division Two. February 5, 1992.]
MAINS FARM HOMEOWNERS ASSOCIATION, ET AL,
Respondents, v. SALIMA WORTHINGTON,
ET AL, Appellants.
[1] Judgment - Summary Judgment - Review - Issues of Law -
Scope of Review. When reviewing a summary judgment, an appellate
court reviews all questions of law de novo.
[2] Covenants - Construction - Plain Meaning. When
interpreting a restrictive covenant, a court must give clear and
unambiguous language its plain and obvious meaning.
172 MAINS FARM v. WORTHINGTON Feb. 1992
64 Wn. App. 171, 824 P.2d 495
[3] Covenants - Construction - Question of Law or Fact. The
meaning of the words in a restrictive covenant is an issue of law.
[4] Covenants - Construction - "Business" - What
Constitutes. A business use of property that is greater than incidental
to a residential purpose violates a covenant restricting the use of
property to single family residential purposes only. A "business"
includes any human efforts conducted for the purpose of earning a
living or profit.
[5] Covenants - Construction - "Business" - Adult Family
Home - In General. Providing residential space and varying degrees of
care to unrelated elderly adults in return for money violates a covenant
restricting the use of property to single family residential purposes only.
[6] Injunction - Determination - Public Interest. A trial
court may consider the interest of the public when deciding whether to
issue an injunction.
[7] Covenants - Validity - Test. Restrictive covenants are
valid if they are reasonable and reasonably exercised.
[8] Covenants - Construction - "Business" - Adult Family
Home - Public Interest. The interest of the public in encouraging
alternative residential care facilities for elderly persons does not
override a covenant restricting the use of property to single family
residential purposes only.
[9] Statutes - Construction - Unambiguous Language - In
General. Statutory language having a plain meaning is not subject to
judicial construction.
[10] Covenants - Construction - "Business" - Adult Family
Home - Zoning Statute - Effect. Laws of 1989, 1st Ex. Sess., ch. 9, SS
815(2), which provides that an adult family home constitutes a
residential use for zoning purposes, does not have the effect of making
an adult family home a residential use for restrictive covenant purposes.
Nature of Action: A homeowners association sought to
enjoin the use of a house as an adult family home. A restrictive
covenant limited the use of the lot to "single family residential purposes
only".
Superior Court: The Superior Court for Clallam County,
No. 88-2-00339-7, Grant S. Meiner, J., on July 7, 1989, granted a
summary judgment in favor of the homeowners association.
Feb. 1992 MAINS FARM v. WORTHINGTON 173
64 Wn. App. 171, 824 P.2d 495
Court of Appeals: Holding that the defendant's business
use of her property was inconsistent with a residential purpose and that
enforcement of the covenant did not violate public policy or statutory
law, the court affirms the judgment.
Alan E. Millet and Millet & Mauhar, P.S.; Joseph Lavin
and Taylor & Taylor, for appellants.
Kenneth Williams and Johnson & Williams, for respondents.
ALEXANDER
ALEXANDER, J. - Salima Worthington and Raymond E.
Miller appeal an order of the Clallam County Superior Court. The order
denied their motion for summary judgment and granted summary
judgment to Mains Farm Homeowners Association for an injunction
preventing Worthington from operating an adult family home in the
Mains Farm subdivision in Sequim. Worthington and Miller contend on
appeal that the Superior Court wrongly concluded that: (1) the
operation of an adult family home violated restrictive covenants limiting
the use of the lots in the subdivision to "single family residential
purposes only"; and (2) the restrictive covenants did not violate public
policy. We affirm.
In December 1986, Salima Worthington obtained a license from the
Department of Social and Health Services to run what is referred to as
an "adult family home". Former WAC 388-76-030(2). Worthington's
license permitted her to provide full family care for up to four unrelated,
elderly adults. Worthington ran the family home in a residence she
rented in the Sol Mar area of Clallam County.
In December 1987, Worthington purchased a home in the Mains Farm
subdivision near Sequim. Worthington was aware at the time she
purchased the home that there were restrictive covenants governing
the subdivision. The pertinent restrictive covenant reads as follows:
All lots or tracts permitted in Mains Farm shall be designated as
"Residence Lots," and *shall be used for single family residential
purposes only*.
(Italics ours.)
174 MAINS FARM v. WORTHINGTON Feb. 1992
64 Wn. App. 171, 824 P.2d 495
Worthington admits that at the time that she made the purchase she
intended to operate an adult home facility in the residence. The Mains
Farm Homeowners Association eventually became aware of the
intended use and, in January 1988, the president of the Association
sent a letter to Worthington stating that the Association's board of
directors had decided that the proposed use of the residence violated
the Mains Farm restrictive covenants. Nevertheless, Worthington
continued with her plans to operate an adult family home facility.
After completing some remodeling of her home to accommodate four
unrelated, elderly adults in need of "full family care", /1 Worthington,
together with her two daughters and four unrelated adults, moved into
the home. Worthington generally provided the care to the elderly
residents herself, but when unable to so, she employed other persons
to provide the 24-hour services in her stead. Worthington received
compensation from the elderly residents in amounts ranging between
$500 and $1,000 per month per person, depending on the degree of
care required.
After making several additional requests that Worthington discontinue
using her home for an "adult foster care commercial enterprise", the
Mains Farm Homeowners Association filed a complaint in the Clallam
County Superior Court, alleging that Worthington's use of her home
violated the restrictive covenants. It sought to enjoin Worthington from
running the adult foster care facility in her home. The Association and
Worthington filed cross motions for summary judgment. The Superior
Court granted the Association's motion and denied Worthington's. It
concluded that Worthington's use of her home violated the restrictive
covenants because the use was not "residential only", the "commercial
elements" of the adult family home operation overriding the residential
aspects of the use.
---------------
1 Full family care is defined as 24-hour protective supervision and care
for an adult in need of personal and special care. Laws of 1989, ch.
427, SS 14.
Feb. 1992 MAINS FARM v. WORTHINGTON 175
64 Wn. App. 171, 824 P.2d 495
[1] Initially, we observe that the issues in this case were
ripe for summary judgment, the parties conceding that there are no
material factual disputes about the nature of the activities carried on in
Worthington's residence. Summary judgment is appropriate if there is
no genuine issue as to any material fact and the moving party is
entitled to a judgment as a matter of law. CR 56(c). On review of a
summary judgment, this court reviews all questions of law de novo.
Hoffer v. State, 110 Wn.2d 415, 755 P.2d 781 (1988), aff'd, 113 Wn.2d
148 (1989).
MEANING OF THE RESTRICTIVE COVENANT
[2, 3] In order to determine if the trial court erred in ruling, as a matter
of law, that Worthington's use of her home was not residential, we must
look to the language of the restrictive covenant in question. We do this
because, although courts should not give a covenant a broader than
intended application, "it is well settled that a covenant should not be
read in such a way that defeats the plain and obvious meaning of the
restriction." Lakes at Mercer Island Homeowners Ass'n v. Witrak, 61
Wn. App. 177, 180, 810 P.2d 27 (1991). The meaning of words in a
restrictive covenant is a question of law for the court. Krein v. Smith, 60
Wn. App. 809, 811, 807 P.2d 906, review denied, 117 Wn.2d 1002
(1991).
In construing the meaning of a covenant, clear and unambiguous
language will be given its manifest meaning; restrictions in derogation
of the free use of land will not be extended to include any use not
clearly expressed; doubts will be resolved in favor of the free use of
land; and the instrument containing the restriction will be considered in
its entirety with any attendant circumstances taken into consideration
when the meaning is doubtful.
Hagemann v. Worth, 56 Wn. App. 85, 90, 782 P.2d 1072
(1989). The words in the covenant should be given their "'ordinary and
common use'." Krein v. Smith, supra at 811.
As noted above, the Superior Court reasoned that Worthington's use
of her residence was not for "single family residential purposes only"
because of what it
176 MAINS FARM v. WORTHINGTON Feb. 1992
64 Wn. App. 171, 824 P.2d 495
concluded were "commercial element[s]" of the adult family home
operation. Worthington argues to us, as she did at the trial court, that
the use of her home as an adult family home was not violative of the
restrictive covenants, because the use was for "single family residential
purposes only", and not for a commercial enterprise. We disagree.
[4, 5] In a strikingly similar case, Division Three of this court, after
noting that the terms "business" and "residential" are antonyms, held
that the providing of a residence for elderly paying customers is a
business use and not a residential use. Hagemann v. Worth, 56 Wn.
App. at 91. In Hagemann, the covenant restricted building to
"'single-family residences'" and prohibited "'business, industry or
commercial enterprise of any kind or nature . . .'." Hagemann, 56 Wn.
App. at 87. The word "business" has been said to be "a very
comprehensive term, . . . embrac[ing] everything about which a person
can be employed. . . .
[t]hat which occupies the time, attention, and labor of men for the
purpose of livelihood or profit." International Shoe Co. v. State, 22
Wn.2d 146, 169, 154 P.2d 801, aff'd, 326 U.S. 310, 90 L. Ed. 95, 66 S.
Ct. 154, 161 A.L.R. 1057 (1945); State ex rel. Columbia Broadcasting
Co. v. Superior Court, 1 Wn.2d 379, 383, 96 P.2d 248 (1939), rev'd on
other grounds, 310 U.S. 613, 84 L. Ed. 1389, 60 S. Ct. 1085 (1940). In
Hagemann, the court observed that the word "business", in its ordinary
and common use, is defined as "human efforts which have for their end
living or reward." Hagemann, 56 Wn. App. at 90 (quoting Burton v.
Douglas Cy., 65 Wn.2d 619, 623, 399 P.2d 68 (1965) (quoting
Easterbrook v. Hebrew Ladies Orphan Soc'y, 85 Conn. 289, 299, 82 A.
561 (1912))). We reach the same conclusion about the activity here as
did the court in Hagemann. The use Worthington intended to make of
her home was essentially a business use. It was inconsistent with a
residential purpose. In support of her position, Worthington cites
Hunter Tract Imp. Co. v. Corporation of Catholic Bishop, 98 Wash. 112,
167 P. 100 (1917), a case in which the court was faced with a claim
that the use of a residence as a convent for the
Feb. 1992 MAINS FARM v. WORTHINGTON 177
64 Wn. App. 171, 824 P.2d 495
Ursuline Catholic Sisterhood violated a covenant restricting the use of
any lots described in the deed to "residence purposes only". The court
concluded there that the use of the home as a convent was a
residential purpose because the restriction of use for "'residence
purposes' referred to the mode of occupancy, and so long as the
building was used as a place of abode and no business [was] carried
on there, it would be used for residence purposes only." Hunter, 98
Wash. at 117.
We do not find the opinion in Hunter to be inconsistent with Hagemann.
In Hunter, the court determined that simply because occupants of a
house were members of a particular group and were holding religious
services did not convert an essentially residential use to a business or
commercial use. It held that the use that the Order made of their home
was mainly residential and that any other use was incidental to that
residential purpose. Hunter, 98 Wash. at 115. The court did
acknowledge, however, that if the home had been used for the training
of women who were seeking admission to the convent, the home might
lose its residential character. Hunter, 98 Wash. at 115.
The use that Worthington made of her home is unlike that which the
court reviewed in Hunter. It is more akin to the use in Hagemann.
Worthington's use of her home for a commercial purpose was not
incidental to the residential purpose. Rather, the residential purpose
was incidental to the business purpose. The uncontroverted facts are
that Worthington provides 24-hour care to four elderly residents for
fees of $500 to $1,000 per person per month. In addition, she
occasionally hires outside help to assist her in this enterprise. Although
a purpose of this enterprise was to provide a residence for elderly
persons, a substantial entrepreneurial purpose was at the core of her
efforts.
Worthington asserts, additionally, that she is merely a servant" to the
resident, nonowners of her home. She points out that the Mains Farm
covenants allow the provision of "quarters for servants for the single
family in ownership". Worthington's position is without any merit. The
178 MAINS FARM v. WORTHINGTON Feb. 1992
64 Wn. App. 171, 824 P.2d 495
elderly paying residents are not owners of the residence. Furthermore,
Worthington is not a servant of the paying residents. The ordinary
meaning of "servant" is "[o]ne employed to perform service in master's
affairs, whose physical conduct in performance of the service is
controlled or is subject to right to control by the master." Black's Law
Dictionary 1533 (4th ed. 1968). Worthington, as the owner of the
residence and as a licensed operator of an adult family home, is not
subject to control by the other residents and cannot, under any stretch
of the imagination, be viewed as a servant "for the single family in
ownership".
PUBLIC POLICY
Worthington also argues that even if the use violated the Mains Farm
restrictive covenants, the covenants should not be enforced by
injunction because they violate public policy. She points out that the
Legislature fairly recently adopted legislation acknowledging the need
for services and care of the functionally disabled, seeking to ensure
that options such as "community residential facilities" will be developed.
Laws of 1989, ch. 427, SSSS 1, 2(4) (effective May 14, 1989). As part
of that enactment, the Legislature found "that adult family homes are
an important part of the state's long-term care system" and "provide an
alternative to institutional care and promote a high degree of
independent living for residents." Laws of 1989, ch. 427, SS 14.
Worthington suggests that these enactments demonstrate a
recognition by the Legislature that maintaining disabled persons
outside of institutions is of greater value to the public than is the right
to restrict the use of land. Worthington contends that the Legislature
has clearly resolved the issue in her favor by adopting the following
provision relating to zoning:
An adult family home shall be considered a residential use of property
for zoning purposes. Adult family homes shall be a permitted use in all
areas zoned for residential or commercial purposes, including areas
zoned for single family dwellings.
Laws of 1989, 1st Ex. Sess., ch. 9, SS 815(2).
Feb. 1992 MAINS FARM v. WORTHINGTON 179
64 Wn. App. 171, 824 P.2d 495
[6] In determining whether or not to issue an injunction,
the trial court may consider, if appropriate, the interest of the public.
Tyler Pipe Indus., Inc v. Department of Rev., 96 Wn.2d 785, 792, 638
P.2d 1213 (1982); Hagemann, 56 Wn. App. at 92. Generally, public
policy favors the free use of one's own land. White v. Wilhelm, 34 Wn.
App. 763, 772, 665 P.2d 407, review denied, 100 Wn.2d 1025 (1983)
(quoting Gwinn v. Cleaver, 56 Wn.2d 612, 615, 354 P.2d 913 (1960)).
A contractual provision such as a restrictive covenant may, however,
violate public policy when "'. . . the contract as made has a "tendency
to evil," to be against the public good, or to be injurious to the public.'"
Thayer v. Thompson, 36 Wn. App. 794, 796, 677 P.2d 787 (1984)
(quoting Golberg v. Sanglier, 27 Wn. App. 179, 191, 616 P.2d 1239
(1980), rev'd on other grounds, 96 Wn.2d 874, 639 P.2d 1347 (1982));
see also RCW 49.60.224 (provisions in written instruments relating to
real property which purport to forbid or restrict the conveyance,
encumbrance, occupancy, or lease to persons of a specific race,
creed, color, national origin or with any handicap are void and unfair
practices).
[7] Nevertheless, courts also recognize the necessity of enforcing
restrictive covenants to protect property owners from increased
pressures of urbanization. Witrak, 61 Wn. App. at 179. The modem
view is that building restrictions are for the protection of the public as
well as the property owner and that such restrictions, in order to be
valid, need only be reasonable and reasonably exercised. Thayer v.
Thompson, 36 Wn. App. at 797.
[8] In Hagemann, the court determined that, although the development
of foster homes is a laudable public policy, covenants prohibiting
business or commercial enterprises in an area restricted to single
family residences "does not impede furtherance of the public's interest
in developing alternative residential care for the elderly", and such
policy does not override a contractual prohibition against the location
of such facilities. Hagemann, 56 Wn. App. at 92. We agree with that
view.
180 MAINS FARM v. WORTHINGTON Feb. 1992
64 Wn. App. 171, 824 P.2d 495
The only public policy issue left unanswered in Hagemann /2
was "whether zoning may override the constitutional contractual right of
parties to covenant". Hagemann, 56 Wn. App. at 92. Worthington
argues that the zoning legislation referred to above is a clear indication
that public policy favors "adult family homes" over restrictive covenants
barring them. Her argument ignores the fact that the enactment only
relates to the zoning of land. Zoning is a public restriction on the use of
land, whereas restrictive covenants are private restrictions. Thayer v.
Thompson, supra. Although generally a restrictive covenant is not
grounds for denial of a zoning variance, the private covenant may
provide grounds for a separate action to enjoin the usage of land in
violation of the restrictions. Martel v. Vancouver, 35 Wn. App. 250, 257,
666 P.2d 916 (1983).
[9, 10] Where statutory language is plain, it is not open to construction
or interpretation. Crown Cascade, Inc. v. O'Neal, 100 Wn.2d 256, 262,
668 P.2d 585 (1983). In our judgment, the legislature only restricted
the public's right to zone adult family homes out of residential areas.
The enactment did not, either explicitly or implicitly, restrict the right of
private homeowners to adopt covenants which forbid certain uses of
land in residential areas.
Affirmed.
PETRICH, C.J., and WORSWICK, J. Pro Tem., concur.
Review granted at 119 Wn.2d 1001 (1992).
---------------
2 Before Hagemann was decided, legislation that would have made
adult homes a residential use of property for zoning purposes was
vetoed by the Governor. That legislation has since been reenacted.
Laws of 1989, 1st Ex. Sess., ch. 9, SS 815(2).
