Metzner v. Wojdyla
Metzner v. Wojdyla
Opinion of the Court
Petitioners John and June Metzner seek review of a decision of the Court of Appeals, Division One, reversing a judgment of the Whatcom County Superior Court enjoining Respondents Christopher J. and Jadranka Z. Wojdyla from operating a licensed child day care facility in their home in the Tweed Twenty subdivision, which is subject to a restrictive covenant limiting use of the property to "residential purposes only”. We reverse the Court of Appeals.
Statement of Facts
Petitioners John and June Metzner, ages 79 and 74,
The Tweed Twenty subdivision is subject to many restrictive covenants, but the one pertinent to this case provides:
1. Said property shall he used for residential purposes only. No building shall be erected, placed, altered, or permitted to remain on any lot other than one detached single-family dwelling with a private garage for not more than three cars without the consent of the grantor[5 ]
Petitioners Metzner assert that the "residential purposes” covenant was a significant factor in their decision to purchase their home in the subdivision.
On December 1, 1990, Respondent Jadranka Z. Wojdyla obtained a family day care home license from the Department of Social and Health Services.
On April 19, 1993, the Court of Appeals reversed the trial court, holding that the Wojdylas’ use of their property as a child day care facility did not violate the restrictive covenant.
The Metzners seek review in this court and the Wojdylas request an award of attorney fees for answering the petition.
Questions Presented
The first question presented by this case is whether the Court of Appeals, Division One, erred in reversing the deci
Discussion
Petitioners Metzner maintain that Respondents Wojdylas’ operation of a licensed child day care facility in the Tweed Twenty subdivision neighborhood violates restrictive covenants applicable to their property.
Some states have held that operation of a residential child day care facility violates covenants restricting use of premises to residential purposes only.
Under the Washington Administrative Code (WAC), which governs licensing of care facilities by the Department of Social and Health Services, the Respondents Wojdylas’ facility is defined under former WAC 388-73-014(4)(c), which reads:
A family day care home means a day care facility for the care of ten or fewer children in the family abode of the person or persons under whose care and supervision the children are placed.[17 ]
Interpretation of Restrictive Covenants
Restrictive covenants are designed to make residential subdivisions more attractive for residential purposes, and are enforceable by injunctive relief without showing substantial damage from the violation.
The phrase "residential purposes” was interpreted by the Court of Appeals in Hagemann v. Worth.
[D]efendant’s use includes a commercial element because she receives payment for the care that she gives unrelated adults in her home. . . . The single-family residential nature of defendant’s use of her home is destroyed by the elements of commercialism and around-the-clock care that must be accorded to the unrelated persons who occupy her home.[22 ]
The court reached this conclusion although the defendant in that case also made the residence a home for herself and her children.
It is beyond question that the Wojdylas are indeed operating a business. Like the state-licensed adult facilities in Hagemann and Mains Farm, the child day care center operated by the Wojdylas accepts money in exchange for the care of persons (in this instance, children) not related to them. It is also licensed by the State and considered an "agency” under state law.
The Wojdylas argue that Mains Farm requires a further inquiry into whether operation of their day care center was the primary use or an incidental use of their property. We do not agree. Defendants in Mains Farm made a similar argument, citing Hunter Tract Imp. Co. v. Corporation of Catholic Bishop.
Attorney Fees
Respondents Wojdyla request attorney fees for answering the petition now before us in the event we affirm the Court of Appeals. They would not be entitled under RAP 18.1(j) to reasonable attorney fees for answering the petition before this court, even if we did affirm the Court of Appeals, because that court did not award attorney fees to them. We deny their request for attorney fees.
Summary and Conclusions
The operator of a licensed child day care facility in a residence in a subdivision violates a restrictive covenant which provides that the "property shall be used for residential purposes only”.
Respondents Wojdylas’ operation of a licensed child day care facility in their residence in the Tweed Twenty subdivi
We reverse the Court of Appeals, Division One, and affirm the judgment of the Whatcom County Superior Court enjoining Respondents Christopher J. and Jadranka Z. Wojdyla from operating a residential child day care facility in violation of the restrictive covenant limiting use of the property in the Tweed Twenty subdivision to "residential purposes only.”
Andersen, C.J., and Brachtenbach, Dolliver, and Johnson, JJ., concur.
Madsen, J., concurs in the result.
Clerk’s Papers, at 36.
Clerk’s Papers, at 35.
Clerk’s Papers, at 14.
Clerk’s Papers, at 44.
(Italics ours.) Clerk’s Papers, at 51. The topic sentence is not related to the language which follows. We address our attention only to the language of that sentence. Neither of the parties argued otherwise.
Clerk’s Papers, at 35.
Clerk’s Papers, at 14, 35, 51.
Clerk’s Papers, at 45.
In an affidavit of Respondent Jadranka Z. Wojdyla, filed May 4,1992, she states that the woman who approved her day care license at the Department of Social and Health Services had also operated a home day care in the Tweed Twenty subdivision for more than eight years. Ms. Wojdyla further stated she was aware of at least five other licensed day care homes in the subdivision, as well as "quite a few” unlicensed ones. Clerk’s Papers, at 15.
Clerk’s Papers, at 15.
Clerk’s Papers, at 36.
CIerk’s Papers, at 11. In a June 5,1992 affidavit supporting a motion to lift the injunction, Respondent’s attorney stated they "obtained signatures of a majority of lot owners in Division 6 of Tweed Twenty subdivision voting to amend the restrictions and covenants... to allow the operation of a Department of Social and Health Services licensed home day care.” Clerk’s Papers, at 6. The purported amendment would read:
1. Said property shall be used for residential purposes only except that operation of a Department of Social and Health Services licensed home day care shall be permitted. No building shall be erected, placed, altered, or permitted to remain on any lot other than one detached single-family dwelling with a private garage for not more than three cars without the consent of the grantor.
(Italics ours.) The affidavit stated an "intention... to record the Amendment to the Restrictions and Covenants in the Whatcom County Auditor’s Office, and . . . provide the court with the Auditor’s filing number.” It is unclear from the record whether the purported amendment has been recorded, and there is no file number from the Whatcom County Auditor’s Office. The affidavit of Respondents’ attorney could not have been considered by the Whatcom County Superior Court in the original proceeding because it was filed almost one month after that court signed the order granting the injunction on May 8, 1992. If the amendment in fact has been approved, it would at least tend to render the controversy in this case moot. However, that affidavit is not properly before this court. Clerk’s Papers, at 7.
Metzner v. Wojdyla, 69 Wn. App. 405, 848 P.2d 1313 (1993).
Br. of Resp’ts.
Walton v. Carignan, 103 N.C. App. 364, 407 S.E.2d 241 (1991) (operation of small residential child day care facility violates restrictive covenant specifically prohibiting commercial or business uses); Cook v. Hoover, 428 So. 2d 836 (La. Ct. App. 1983) (operation of residential child day care facility with an enrollment of 87 children was obtrusive and violated "residence purposes only” covenant); Williams v. Tsiarkezos, 272 A.2d 722 (Del. Ch. 1970) (residential child day care facility for 12 to 25 children violated restrictive covenant specifically prohibiting "trade, business, commerce, industry or occupation” in a residence); Berry v. Hemlepp, 460 S.W.2d 352 (Ky. 1970) (operation of residential child care facility for 15 to 25 children violated restrictive covenant); Voyles v. Knight, 220 Ga. 305,138 S.E.2d 565 (1964) (operation of residential child care facility in vacant house adjacent to defendant’s residence violated restrictive covenant intended for residential purposes only).
Berger v. State, 71 N.J. 206, 364 A.2d 993 (1976) (group home for multihandicapped preschool children did not violate restrictive covenant limiting residential use to single family residences); Beverly Island Ass’n v. Zinger, 113 Mich. App. 322, 317 N.W.2d 611 29 A.L.R. 4th 72 (1982) (operation of residential child day care facility did not change the character of the neighborhood to violate covenant limiting use of premises to residential purposes); J.T. Hobby & Son, Inc. v. Family Homes of Wake Cy., Inc., 302 N.C. 64, 274 S.E.2d 174 (1981) (group home for developmentally disabled persons consistent with use limitation in a subdivision for "residential purposes”); Shoaf v. Bland, 208 Ga. 709, 69 S.E.2d 258 (1952) (kindergarten not inconsistent with lots used solely as "resi
See RCW 74.08.044 and RCW 74.15. Under the licensing scheme, Respondents’ day care facility is characterized as an agency. RCW 74.15.020(3).
Mains Farm Homeowners Ass’n v. Worthington, 121 Wn.2d 810, 815, 854 P.2d 1072 (1993).
Mains Farm, at 815.
56 Wn. App. 85, 91, 782 P.2d 1072 (1989).
Hagemann, at 91.
Mains Farm, at 821 (quoting the trial court).
See ROW 74.15.020(3).
98 Wash. 112, 167 P. 100 (1917).
Mains Farm,, at 819-20.
Mains Farm, at 820-21.
Dissenting Opinion
(dissenting) — The bright-line rule advanced by the majority shuts down every home office and business in the state subject to a "residential purposes only” covenant. Because the rule advanced by the majority extends Mains Farm Homeowners Ass’n v. Worthington, 121 Wn.2d 810, 854 P.2d 1072 (1993) and Hagemann v. Worth, 56 Wn. App. 85, 782 P.2d 1072 (1989), and disregards Hunter Tract Imp. Co. v. Corporation of Catholic Bishop, 98 Wash. 112, 167 P. 100 (1917), I respectfully dissent.
The Wojdylas’ day care presents none of the extreme factual characteristics found in Mains Farm and Hagemann. In both Mains Farm and Hagemann, the residential properties were used 24 hours a day, 7 days a week for adult care, the properties were substantially remodeled to accommodate live-in adult residents, and outside workers were employed.
In addition, the restrictive covenants in Mains Farm and Hagemann were different and restricted more activity than the Tweed Twenty "residential purposes only” covenant. In Mains Farm, the covenant limited the property to "single family residential purposes”. Mains Farm, 121 Wn.2d at 813. This court held, "[i]n this case the 'main use and purpose’ is not to provide a single family residence, but to pro
Contrary to the majority opinion, I see no sound reason in logic, policy, or legal precedent why this court should apply the holding of Mains Farm and Hagemann, cases involving 24-hour adult care and "single family” and "no business use” covenants, to a case involving a child day care and a "residential purposes only” covenant.
Furthermore, the majority’s interpretation of Mains Farm and Hagemann erroneously assumes that business uses are per se incompatible with residential uses. This conclusion overlooks the intent behind a "residential purposes only” covenant — a desire to preserve the residential character of the neighborhood and to make the neighborhood more attractive for residential purposes. See Mains Farm, 121 Wn.2d at 815. The majority’s bright-line rule ignores the clear fact that some business activities are unobtrusive and in no way make a neighborhood any less attractive for residential purposes. For example, an architect, a writer, or a salesperson working full time out of their residence, with little if any structural changes and a minimal increase in traffic, does not alter the character of a residential neighborhood.
In lieu of the bright-line "no business use” rule advanced by the majority, this court should adhere to Hunter Tract and Mains Farm and examine whether the questioned activity is an incidental use of the residence when compared to its main use and purpose. Hunter Tract, 98 Wash. at 115; Mains Farm, 121 Wn.2d at 820.
In this case the "main use and purpose” is not to provide a single family residence, but to provide 24-hour protective care and supervision in exchange for money.
Pursuant to Hunter Tract Imp. Co. v. Corporation of Catholic Bishop, 98 Wash. 112, 167 P. 100 (1917), the court must distinguish between an incidental use and the main use and purpose. . . .
Mains Farm, 121 Wn.2d at 820-21.
Under Hunter Tract, Mains Farm, and Hagemann, business use of property is balanced against residential use. In exceptional circumstances, the main use and purpose of the property is clearly business, i.e., the property is used for business purposes 24 hours a day, 7 days a week. See Mains Farm Homeowners Ass’n v. Worthington, supra; Hagemann v. Worth, supra. In all other situations, the business use and the residential use are balanced for their effect on the residential neighborhood. See Hunter Tract Imp. Co. v. Corporation of Catholic Bishop, supra. Activities that alter the character of a neighborhood are prohibited. Factors used to determine whether the character of a residential neighborhood is altered include, but are not limited to: structural changes, increased noise levels, increased pedestrian or vehicular traffic, outside employees working in the residence, increased pollution, hours of operation, and public safety. The mere fact that an activity may affect one or all of these factors is not alone dispositive. The crucial inquiry is whether one factor or a combination of factors causes the neighborhood to lose its character as a place of residence.
Under this analysis, the Metzners allege an increase in noise from the Wojdylas’ day care altered the character of their residential neighborhood. Noise, if significant and repetitious, may on its own change the character of a residential neighborhood. Here, affidavits provided by the Wojdylas contradict the claims made by the Metzners that noise changed the character of the neighborhood. Some neighbors
Utter and Durham, JJ., concur with Guy, J.
Reference
- Full Case Name
- John Metzner, Et Al, Petitioners, v. Christopher J. Wojdyla, Et Al, Respondents
- Cited By
- 30 cases
- Status
- Published