Opinion
No. 85CA0088
Decided March 26, 1987. Rehearing Denied June 4, 1987. Certiorari Granted Double D September 8, 1987 (87SC246).
Appeal from the District Court of Jefferson County Honorable Anthony F. Vollack, Judge
Richard M. Huckeby, for Plaintiffs-Appellees.
Feuer, Flossic Rich, Jack M. Wesoky, James A. Kaplan, for Defendants-Appellants.
The defendants, Double D Manor, Inc., and the property owners Double D Manor, Inc., Marjorie Rust, Mark G. McGee, Elias A. Mandell, and Joy L. Mandell, appeal the trial court's grant of a permanent injunction barring its use of property in the Evergreen Meadows Subdivision as group homes for developmentally disabled children. We affirm.
Double D Manor is a Colorado nonprofit corporation whose purpose is to provide a home life situation for its residents. When this case arose, it had applied for a state license to operate as a residential child care facility as defined in § 26-6-102(8), C.R.S. (1982 Repl. Vol. 11). It occupies two adjoining lots in the Evergreen Meadows Subdivision. Each lot has one dwelling designed to house a single family on it. Double D Manor planned to place a total of 16 developmentally disabled children in the two houses.
The plaintiffs, Evergreen Meadow Homeowners' Association and several individual residents, sought preliminary and permanent injunctions to bar the defendants from using the property as a facility or residence for developmentally disabled persons. They asserted that such an operation violated the restrictive covenants of the Evergreen Meadows Subdivision. The covenant at issue states: "[A]ll sites shall be for residential use only, with only one single-family dwelling permitted on any site."
The parties stipulated to certain facts, among which was that the managers of the project would not reside in either house, and submitted the matter to the trial court on written briefs. The trial court ruled, as a matter of law, that Double D Manor's use of the two properties as a group home violated the restrictive covenants of the subdivision. It held the clear intent and plain and unambiguous purpose of the covenant was to restrict the use of each lot in the subdivision to a single family residence. We agree.
I
The above-quoted covenant contains a single complete concept which is clear and unambiguous.
The language of the covenant is clear. Nothing within that language would indicate an intent that it govern only architectural design to the exclusion of use. As stated in D.C. Burns Realty Trust Co. v. Mack, 168 Colo. 1, 450 P.2d 75 (1969):
"It is urged that covenants creating restrictions upon the free use of land are to be strictly construed against the limitation. This rule may not today have the sanctity that it has possessed in the past. In any event, it has no application when the language is definite in its terms. One must follow the dictates of plain English."
The use proposed here is essentially commercial and would populate these two lots with a significant number of persons, only a few, if any, who would have a biological relationship; and additionally, there would be no parental figures in the residence. Under such circumstances, the single family requirement of the covenant would not be met.
Since the phrase "single-family dwelling" is not specifically defined, it should retain its traditional definition and, thus, would not include a group residence for the developmentally impaired lacking the characteristics of a normal and permanent family unit maintaining the usual family-style living arrangement. See Region 10 Client Management, Inc. v. Town of Hampstead, 120 N.H. 885, 424 A.2d 207 (1980); City of White Plains v. Ferraioli, 34 N.Y.2d 300, 313 N.E.2d 756, 357 N.Y.S.2d 449 (1974).
The judgment of the trial court is therefore affirmed.
JUDGE CRISWELL concurs.
JUDGE TURSI dissents.