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Metzner v. Wojdyla, 69 Wn. App. 405, 848 P.2d 1313 (1993).
Apr. 1993 METZNER v. WOJDYLA 405 69 Wn. App. 405, 848 P.2d
1313
[No. 30868-8-I. Division One. April 19, 1993.]
OHN METZNER, ET AL, Respondents, v. CHRISTOPHER J.
WOJDYLA, ET AL, Appellants.
[1] Covenants - Construction - Intent of Parties. The primary
objective in construing a covenant is to ascertain the intention of the
parties to the agreement.
[2] Covenants - Construction - Strict Construction. Restrictive
covenants are strictly construed in favor of the free use of property and
will not be extended to encompass any use not clearly expressed.
[3] Covenants - Construction - Unambiguous Language. Restrictive
covenants may not be construed so as to defeat their plain and
obvious meaning.
[4] Covenants - Construction - Residential Use - Child Care. Small
scale child care is customarily and historically incident to the residential
use of property.
[5] Covenants - Construction - Residential Use - Day Care Facility.
Operating a day-care facility at a house does not violate a covenant
restricting the use of the property to residential purposes if the use of
the house as a day care is incidental to its use as a single-family
residence and the day care is small and not significantly more intrusive
than normal single-family activity.
Nature of Action: The plaintiffs sought to prohibit their
neighbors from operating a day-care facility at their house. A covenant
restricted the use of the property to residential purposes only.
Superior Court: The Superior Court for Whatcom County,
No. 91-2-01559-3, Michael F. Moynihan, J. on May 8, 1992, entered a
summary judgment in favor of the plaintiffs.
Court of Appeals: Holding that the home day-care facility
does not violate the restrictive covenant, the court reverses the
judgment and remands for further proceedings.
Victoria Van Hof, for appellants.
William P. Roehl and Roehl & Roehl, P.S., for respondents.
406 METZNER v. WOJDYLA Apr. 1993
69 Wn. App. 405, 848 P.2d 1313
COLEMAN
COLEMAN, J. - Christopher and Jadranka Wojdyla appeal
the trial court's order of summary judgment, arguing that a genuine
issue of material fact existed regarding whether their operation of a
home day-care facility violated a covenant restricting use of their
property to residential purposes only. We reverse.
In 1990, the Wojdyla family moved into a home in Tweed Twenty, a
residential subdivision located in Whatcom County. Their backyard
abutted the backyard of John and June Metzner, an elderly, retired
couple. When the Wojdylas purchased their home, they were informed
that a number of covenants restricted the use of their property,
including one which provided: "Said property shall be 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[.]"
In order to supplement the family's income, Jadranka Wojdyla applied
for and was issued a home day-care license, which allowed her to care
for a maximum of eight children, in addition to her own two children.
The actual number of children that she cared for was usually six or
fewer, including her own. The Metzners sued to enjoin the day care
because noise from the Wojdylas' yard bothered them when they were
sitting on their rear deck or in their yard. On May 8, 1992, the trial court
granted the Metzners' motion for summary judgment. The Wojdylas
appeal.
The sole issue on appeal is whether the trial court erred in finding as a
matter of law that the Wojdylas' operation of a home day care was in
violation of covenants restricting the use of their property. /1
[1-3] The primary objective in construing a covenant is to ascertain the
intention of the parties to the agreement. Hagemann v. Worth, 56 Wn.
App. 85, 88, 782 P.2d 1072 (1989)
_______________
1 The Wojdylas also argue that the doctrine of estoppel prevents
enforcement of the covenant against them. However, this argument
was not raised before the trial court and cannot be raised for the first
time on appeal.
Apr. 1993 METZNER v. WOJDYLA 407
69 Wn. App. 405, 848 P.2d 1313
(citing Burton v. Douglas Cy., 65 Wn.2d 619, 621-22, 399 P.2d 68
(1965); Sandy Point Imp. Co. v. Huber, 26 Wn. App. 317, 320, 613
P.2d 160 (1980)). Restrictive covenants are strictly construed in favor
of the free use of property and will not be extended to encompass any
use not clearly expressed. White v. Wilhelm, 34 Wn. App. 763, 767,
665 P.2d 407 (quoting Burton, at 621-22), review denied, 100 Wn.2d
1025 (1983). However, a covenant should not be read in such a way
that defeats the plain and obvious meaning of the restriction. Mains
Farm Homeowners Ass'n v. Worthington, 64 Wn. App. 171, 175, 824 P
2d 495 (quoting Lakes at Mercer Island Homeowners Ass'n v. Witrak,
61 Wn. App. 177, 180, 810 P.2d 27, review denied, 117 Wn.2d 1013
(1991)), review granted, 119 Wn.2d 1001 (1992).
Although no Washington court has addressed the present issue, two
cases address whether covenants limiting property to residential use
preclude home care facilities for the elderly. In Hagemann v. Worth,
supra, covenants on the defendants' property stated that the area was
for "residential and recreational use". Buildings were restricted to
"'single-family residences'" and "'business, industry or commercial
enterprise of any kind or nature . . .'" was prohibited. Hagemann, at 87.
The defendants remodeled their home to use it as a residence for the
elderly. They were licensed for adult family home care and were
authorized to house up to nine residents. Hagemann, at 87 n.2. Their
neighbors sued to enjoin the activities, and the trial court found that the
defendants' use of their home constituted a business, in violation of the
covenant. Hagemann, at 86.
The Court of Appeals upheld the injunction, stating that the care facility
threatened the residential character of the neighborhood and that the
neighbors were not required to show that the facility caused them
substantial injury. Hagemann, at 89. The court concluded that the care
facility was a business because of several factors: the facility
constituted the defendants' primary source of income, the defendants
had several employees, and they used their home as a business
deduction on their tax return. Hagemann, at 90-91.
408 METZNER v. WOJDYLA Apr. 1993
69 Wn. App. 405, 848 P.2d 1313
In Mains Farm, covenants on the defendants' property
stated that the property "shall be used for single family residential
purposes only." Mains Farm, at 173. Like the defendant in Hagemann,
the defendant in Mains Farm had established an elderly care facility,
although on a smaller scale. Mains Farm, at 174. The trial court
enjoined the activity, and the Court of Appeals affirmed, adopting the
reasoning in Hagemann. The court stated that the defendant's use of
her property was "akin to the use in Hagemann". Mains Farm, at 177.
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.
Mains Farm, at 177. Thus, the court agreed that the
defendants' activities violated the restrictive covenants.
Arguing that a home day-care facility differs significantly from the
facilities in Hagemann and Mains Farm, the Wojdylas urge this court to
distinguish those cases and adopt the reasoning of the Michigan
appellate court in Beverly Island Ass'n v. Zinger, 113 Mich. App. 322,
317 N.W.2d 611, 29 A.L.R.4th 723 (1982). In Beverly Island, the
covenant, which was essentially the same as the covenant in the
present case, provided that "No lot or building plot shall be used except
for residential purposes." Beverly Island, at 324. The defendants
operated a small day care in their home, and the local homeowners'
association sued to enjoin their activities. Beverly Island, at 324. The
trial court granted summary judgment to the plaintiffs, and the Court of
Appeals reversed. Beverly Island, at 331-32.
The court first examined the legal meaning of the term "residential
use", and determined that "a business or professional use may not
violate a residential use covenant so long as the nonresidential use
was casual, infrequent or unobtrusive
Apr. 1993 METZNER v. WOJDYLA 409
69 Wn. App. 405, 848 P.2d 1313
and was not detrimental to the property values of neighbors." Beverly
Island, at 326. The court then examined the scope of the defendants'
activities and concluded that, because the defendants cared for no
more than seven children at any one time, the activities were not
intrusive. The court stated:
The only observable factor which would indicate to an observer that
defendants do not simply have a large family is the vehicular traffic in
the morning and afternoon when the children arrive and depart. When
focusing on the objective activities involved in this case, we find they
are residential in nature.
Beverly Island, at 328. The court then weighed the
intrusiveness of the activities against the policy considerations in favor
of family day-care homes, and concluded that the defendants were
using their property for residential purposes. Beverly Island, at 331.
[4, 5] We find the Beverly Island approach persuasive. As one court
described the approach, it "allows the courts to determine whether the
involved activity affects the use of the property so as to change its use
from its essential residential characteristics." Walton v. Carignan, 103
N.C. App. 364, 367, 407 S.E.2d 241, 243, review denied, 330 N.C. 123
(1991). Clearly, not every activity of a business nature would be
prohibited by the covenants on the Wojdylas' property; at some point,
enforcement of the covenants becomes unreasonable. The
appropriate issue, therefore, is where to draw the line, and we believe
that Beverly Island offers reasonable guidelines for evaluating each
case on its facts.
Nor is Beverly Island inconsistent with Washington case law. The
elderly care facility cases are distinguishable from Beverly Island and
the present case on several important grounds. First, the covenants in
Hagemann were more restrictive than the covenants in the present
case: In Hagemann, in addition to stating that the property was to be
used for residential purposes only, the covenants explicitly prohibited
"'business, industry or commercial enterprise *of any kind or nature*[.]'"
(Italics ours.) Hagemann, at 87. As the Beverly Island court pointed out,
"[a] restriction allowing
410 METZNER v. WOJDYLA Apr. 1993
69 Wn. App. 405, 848 P.2d 1313
residential uses permits a wider variety of uses than a restriction
prohibiting commercial or business uses." Beverly Island, at 613. The
covenant in the present case, because it provides simply that the
"property shall be used for residential purposes only", permits a wider
variety of uses than the covenant in Hagemann.
Second, although the covenant in Mains Farm was essentially the
same as the covenant in the present case, the holding in that case
rested on the court's finding that the defendants' commercial use of
their property was not incidental to their use of the property for
residential purposes, but that, on the contrary, the residential purposes
were incidental to the commercial purpose. Mains Farm, at 177. In
Mains Farm, as well as in Hagemann, the income from the elderly care
facilities was a primary source of revenue, and both defendants had
remodeled their homes to accommodate the facilities. See Mains Farm,
at 174, 177; Hagemann, at 87, 90. In the present case, on the other
hand, the income derived from the Wojdylas' day care is not their
primary source of income, and the Wojdylas' use of their property as a
day-care facility is clearly incidental to their use of the property for
residential purposes.
Not only are the Wojdylas' activities incidental to the residential uses of
their home, the day-care activities are on a much smaller, less intrusive
scale. Although licensed to care for up to 10 children, Ms. Wojdyla's
affidavit, which is undisputed, states that she seldom cares for more
than 6 children, including her own. Several of the Wojdylas' neighbors,
including next-door neighbors on both sides and one that lives across
the street, submitted affidavits to the trial court stating that they had
never been bothered by the day care and, in fact, were not even aware
that it existed. /2 In addition, both elderly care facilities provided
24-hour care to residents, whereas here the day care operates only
during the day.
_______________
2 The Metzners, on the other hand, presented only their own affidavit
in support of their motion for summary judgment. They did not attempt
to rebut the neighbors' affidavits submitted by the Wojdylas.
Apr. 1993 METZNER v. WOJDYLA 411
69 Wn. App. 405, 848 P.2d 1313
Additionally, we believe that small-scale child care is an
activity that is customarily incident to the residential use of property,
whether it involves caring for one's own children or someone else's
children. Although periodic "baby-sitting" for compensation would
technically be a business use of one's property, it is clear that the
covenants on the Wojdylas' property could not reasonably be
construed to prohibit that activity. We recognize that the activities
involved in operating a home day care are on a larger scale and a
more regular basis than the occasional baby-sitting of a neighbor's
children; however, they nonetheless correspond closely with normal
single-family residential activities. In this regard, the Wojdylas correctly
point out that the noise to which the Metzners object would be the same
if the Wojdylas' two children were simply playing in the yard with a few
of their friends or if the Wojdylas had a large family.
In sum, we hold that the Wojdylas' home day care is not prohibited by
the covenant restricting use of their property to residential purposes. /3
We base our holding on several factors, including (1) the Wojdylas' use
of their home as a day care is incidental to their use of their home as a
single- family residence, (2) the Wojdylas' day care is small and not
significantly more intrusive than normal single-family activity, and (3)
child care is an activity that is customarily and historically incident to
the residential use of property. /4
_______________
3 Our holding is intended to apply solely to restrictive covenants on
single-family dwellings. We realize that additional considerations could
require a different result in situations involving multiple-family dwellings.
See, e.g., Woodvale Condominium Trust v. Scheff, 27 Mass. App. Ct.
530, 540 N.E.2d 206 (expressing concern about potential liability of
condominium association), review denied, 405 Mass. 1205 (1989). In
addition, our decision today should not be interpreted as applying to or
affecting zoning ordinances in any way.
4 Although not a determining factor in our decision, we
note that several jurisdictions have articulated a strong public policy in
favor of home day-care centers. See, e.g., People v. Bacon, 133 Misc.
2d 771, 776, 508 N.Y.S.2d 138, 141 (1986) (construing zoning
ordinance as allowing home day care because of legislative finding of
"growing need to expand the availability and accessibility of safe,
affordable and quality day-care services for children"); Walton v.
Carignan, 103 N.C. App. 364, 366, 407 S.E.2d 241 (stating that
"[a]ffordable and adequate (Footnote cont'd. next page)
412 STATE v. COOK Apr. 1993
69 Wn. App. 412, 848 P.2d 1325
The order of summary judgment is reversed, and the
cause is remanded for further proceedings consistent with this opinion.
PEKELIS, A.C.J., and SCHOLFIELD, J., concur.
Reconsideration denied May 14, 1993.
Review granted at 122 Wn.2d 1015 (1993).
Apr. 1993 METZNER v. WOJDYLA 405 69 Wn. App. 405, 848 P.2d
1313
[No. 30868-8-I. Division One. April 19, 1993.]
OHN METZNER, ET AL, Respondents, v. CHRISTOPHER J.
WOJDYLA, ET AL, Appellants.
[1] Covenants - Construction - Intent of Parties. The primary
objective in construing a covenant is to ascertain the intention of the
parties to the agreement.
[2] Covenants - Construction - Strict Construction. Restrictive
covenants are strictly construed in favor of the free use of property and
will not be extended to encompass any use not clearly expressed.
[3] Covenants - Construction - Unambiguous Language. Restrictive
covenants may not be construed so as to defeat their plain and
obvious meaning.
[4] Covenants - Construction - Residential Use - Child Care. Small
scale child care is customarily and historically incident to the residential
use of property.
[5] Covenants - Construction - Residential Use - Day Care Facility.
Operating a day-care facility at a house does not violate a covenant
restricting the use of the property to residential purposes if the use of
the house as a day care is incidental to its use as a single-family
residence and the day care is small and not significantly more intrusive
than normal single-family activity.
Nature of Action: The plaintiffs sought to prohibit their
neighbors from operating a day-care facility at their house. A covenant
restricted the use of the property to residential purposes only.
Superior Court: The Superior Court for Whatcom County,
No. 91-2-01559-3, Michael F. Moynihan, J. on May 8, 1992, entered a
summary judgment in favor of the plaintiffs.
Court of Appeals: Holding that the home day-care facility
does not violate the restrictive covenant, the court reverses the
judgment and remands for further proceedings.
Victoria Van Hof, for appellants.
William P. Roehl and Roehl & Roehl, P.S., for respondents.
406 METZNER v. WOJDYLA Apr. 1993
69 Wn. App. 405, 848 P.2d 1313
COLEMAN
COLEMAN, J. - Christopher and Jadranka Wojdyla appeal
the trial court's order of summary judgment, arguing that a genuine
issue of material fact existed regarding whether their operation of a
home day-care facility violated a covenant restricting use of their
property to residential purposes only. We reverse.
In 1990, the Wojdyla family moved into a home in Tweed Twenty, a
residential subdivision located in Whatcom County. Their backyard
abutted the backyard of John and June Metzner, an elderly, retired
couple. When the Wojdylas purchased their home, they were informed
that a number of covenants restricted the use of their property,
including one which provided: "Said property shall be 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[.]"
In order to supplement the family's income, Jadranka Wojdyla applied
for and was issued a home day-care license, which allowed her to care
for a maximum of eight children, in addition to her own two children.
The actual number of children that she cared for was usually six or
fewer, including her own. The Metzners sued to enjoin the day care
because noise from the Wojdylas' yard bothered them when they were
sitting on their rear deck or in their yard. On May 8, 1992, the trial court
granted the Metzners' motion for summary judgment. The Wojdylas
appeal.
The sole issue on appeal is whether the trial court erred in finding as a
matter of law that the Wojdylas' operation of a home day care was in
violation of covenants restricting the use of their property. /1
[1-3] The primary objective in construing a covenant is to ascertain the
intention of the parties to the agreement. Hagemann v. Worth, 56 Wn.
App. 85, 88, 782 P.2d 1072 (1989)
_______________
1 The Wojdylas also argue that the doctrine of estoppel prevents
enforcement of the covenant against them. However, this argument
was not raised before the trial court and cannot be raised for the first
time on appeal.
Apr. 1993 METZNER v. WOJDYLA 407
69 Wn. App. 405, 848 P.2d 1313
(citing Burton v. Douglas Cy., 65 Wn.2d 619, 621-22, 399 P.2d 68
(1965); Sandy Point Imp. Co. v. Huber, 26 Wn. App. 317, 320, 613
P.2d 160 (1980)). Restrictive covenants are strictly construed in favor
of the free use of property and will not be extended to encompass any
use not clearly expressed. White v. Wilhelm, 34 Wn. App. 763, 767,
665 P.2d 407 (quoting Burton, at 621-22), review denied, 100 Wn.2d
1025 (1983). However, a covenant should not be read in such a way
that defeats the plain and obvious meaning of the restriction. Mains
Farm Homeowners Ass'n v. Worthington, 64 Wn. App. 171, 175, 824 P
2d 495 (quoting Lakes at Mercer Island Homeowners Ass'n v. Witrak,
61 Wn. App. 177, 180, 810 P.2d 27, review denied, 117 Wn.2d 1013
(1991)), review granted, 119 Wn.2d 1001 (1992).
Although no Washington court has addressed the present issue, two
cases address whether covenants limiting property to residential use
preclude home care facilities for the elderly. In Hagemann v. Worth,
supra, covenants on the defendants' property stated that the area was
for "residential and recreational use". Buildings were restricted to
"'single-family residences'" and "'business, industry or commercial
enterprise of any kind or nature . . .'" was prohibited. Hagemann, at 87.
The defendants remodeled their home to use it as a residence for the
elderly. They were licensed for adult family home care and were
authorized to house up to nine residents. Hagemann, at 87 n.2. Their
neighbors sued to enjoin the activities, and the trial court found that the
defendants' use of their home constituted a business, in violation of the
covenant. Hagemann, at 86.
The Court of Appeals upheld the injunction, stating that the care facility
threatened the residential character of the neighborhood and that the
neighbors were not required to show that the facility caused them
substantial injury. Hagemann, at 89. The court concluded that the care
facility was a business because of several factors: the facility
constituted the defendants' primary source of income, the defendants
had several employees, and they used their home as a business
deduction on their tax return. Hagemann, at 90-91.
408 METZNER v. WOJDYLA Apr. 1993
69 Wn. App. 405, 848 P.2d 1313
In Mains Farm, covenants on the defendants' property
stated that the property "shall be used for single family residential
purposes only." Mains Farm, at 173. Like the defendant in Hagemann,
the defendant in Mains Farm had established an elderly care facility,
although on a smaller scale. Mains Farm, at 174. The trial court
enjoined the activity, and the Court of Appeals affirmed, adopting the
reasoning in Hagemann. The court stated that the defendant's use of
her property was "akin to the use in Hagemann". Mains Farm, at 177.
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.
Mains Farm, at 177. Thus, the court agreed that the
defendants' activities violated the restrictive covenants.
Arguing that a home day-care facility differs significantly from the
facilities in Hagemann and Mains Farm, the Wojdylas urge this court to
distinguish those cases and adopt the reasoning of the Michigan
appellate court in Beverly Island Ass'n v. Zinger, 113 Mich. App. 322,
317 N.W.2d 611, 29 A.L.R.4th 723 (1982). In Beverly Island, the
covenant, which was essentially the same as the covenant in the
present case, provided that "No lot or building plot shall be used except
for residential purposes." Beverly Island, at 324. The defendants
operated a small day care in their home, and the local homeowners'
association sued to enjoin their activities. Beverly Island, at 324. The
trial court granted summary judgment to the plaintiffs, and the Court of
Appeals reversed. Beverly Island, at 331-32.
The court first examined the legal meaning of the term "residential
use", and determined that "a business or professional use may not
violate a residential use covenant so long as the nonresidential use
was casual, infrequent or unobtrusive
Apr. 1993 METZNER v. WOJDYLA 409
69 Wn. App. 405, 848 P.2d 1313
and was not detrimental to the property values of neighbors." Beverly
Island, at 326. The court then examined the scope of the defendants'
activities and concluded that, because the defendants cared for no
more than seven children at any one time, the activities were not
intrusive. The court stated:
The only observable factor which would indicate to an observer that
defendants do not simply have a large family is the vehicular traffic in
the morning and afternoon when the children arrive and depart. When
focusing on the objective activities involved in this case, we find they
are residential in nature.
Beverly Island, at 328. The court then weighed the
intrusiveness of the activities against the policy considerations in favor
of family day-care homes, and concluded that the defendants were
using their property for residential purposes. Beverly Island, at 331.
[4, 5] We find the Beverly Island approach persuasive. As one court
described the approach, it "allows the courts to determine whether the
involved activity affects the use of the property so as to change its use
from its essential residential characteristics." Walton v. Carignan, 103
N.C. App. 364, 367, 407 S.E.2d 241, 243, review denied, 330 N.C. 123
(1991). Clearly, not every activity of a business nature would be
prohibited by the covenants on the Wojdylas' property; at some point,
enforcement of the covenants becomes unreasonable. The
appropriate issue, therefore, is where to draw the line, and we believe
that Beverly Island offers reasonable guidelines for evaluating each
case on its facts.
Nor is Beverly Island inconsistent with Washington case law. The
elderly care facility cases are distinguishable from Beverly Island and
the present case on several important grounds. First, the covenants in
Hagemann were more restrictive than the covenants in the present
case: In Hagemann, in addition to stating that the property was to be
used for residential purposes only, the covenants explicitly prohibited
"'business, industry or commercial enterprise *of any kind or nature*[.]'"
(Italics ours.) Hagemann, at 87. As the Beverly Island court pointed out,
"[a] restriction allowing
410 METZNER v. WOJDYLA Apr. 1993
69 Wn. App. 405, 848 P.2d 1313
residential uses permits a wider variety of uses than a restriction
prohibiting commercial or business uses." Beverly Island, at 613. The
covenant in the present case, because it provides simply that the
"property shall be used for residential purposes only", permits a wider
variety of uses than the covenant in Hagemann.
Second, although the covenant in Mains Farm was essentially the
same as the covenant in the present case, the holding in that case
rested on the court's finding that the defendants' commercial use of
their property was not incidental to their use of the property for
residential purposes, but that, on the contrary, the residential purposes
were incidental to the commercial purpose. Mains Farm, at 177. In
Mains Farm, as well as in Hagemann, the income from the elderly care
facilities was a primary source of revenue, and both defendants had
remodeled their homes to accommodate the facilities. See Mains Farm,
at 174, 177; Hagemann, at 87, 90. In the present case, on the other
hand, the income derived from the Wojdylas' day care is not their
primary source of income, and the Wojdylas' use of their property as a
day-care facility is clearly incidental to their use of the property for
residential purposes.
Not only are the Wojdylas' activities incidental to the residential uses of
their home, the day-care activities are on a much smaller, less intrusive
scale. Although licensed to care for up to 10 children, Ms. Wojdyla's
affidavit, which is undisputed, states that she seldom cares for more
than 6 children, including her own. Several of the Wojdylas' neighbors,
including next-door neighbors on both sides and one that lives across
the street, submitted affidavits to the trial court stating that they had
never been bothered by the day care and, in fact, were not even aware
that it existed. /2 In addition, both elderly care facilities provided
24-hour care to residents, whereas here the day care operates only
during the day.
_______________
2 The Metzners, on the other hand, presented only their own affidavit
in support of their motion for summary judgment. They did not attempt
to rebut the neighbors' affidavits submitted by the Wojdylas.
Apr. 1993 METZNER v. WOJDYLA 411
69 Wn. App. 405, 848 P.2d 1313
Additionally, we believe that small-scale child care is an
activity that is customarily incident to the residential use of property,
whether it involves caring for one's own children or someone else's
children. Although periodic "baby-sitting" for compensation would
technically be a business use of one's property, it is clear that the
covenants on the Wojdylas' property could not reasonably be
construed to prohibit that activity. We recognize that the activities
involved in operating a home day care are on a larger scale and a
more regular basis than the occasional baby-sitting of a neighbor's
children; however, they nonetheless correspond closely with normal
single-family residential activities. In this regard, the Wojdylas correctly
point out that the noise to which the Metzners object would be the same
if the Wojdylas' two children were simply playing in the yard with a few
of their friends or if the Wojdylas had a large family.
In sum, we hold that the Wojdylas' home day care is not prohibited by
the covenant restricting use of their property to residential purposes. /3
We base our holding on several factors, including (1) the Wojdylas' use
of their home as a day care is incidental to their use of their home as a
single- family residence, (2) the Wojdylas' day care is small and not
significantly more intrusive than normal single-family activity, and (3)
child care is an activity that is customarily and historically incident to
the residential use of property. /4
_______________
3 Our holding is intended to apply solely to restrictive covenants on
single-family dwellings. We realize that additional considerations could
require a different result in situations involving multiple-family dwellings.
See, e.g., Woodvale Condominium Trust v. Scheff, 27 Mass. App. Ct.
530, 540 N.E.2d 206 (expressing concern about potential liability of
condominium association), review denied, 405 Mass. 1205 (1989). In
addition, our decision today should not be interpreted as applying to or
affecting zoning ordinances in any way.
4 Although not a determining factor in our decision, we
note that several jurisdictions have articulated a strong public policy in
favor of home day-care centers. See, e.g., People v. Bacon, 133 Misc.
2d 771, 776, 508 N.Y.S.2d 138, 141 (1986) (construing zoning
ordinance as allowing home day care because of legislative finding of
"growing need to expand the availability and accessibility of safe,
affordable and quality day-care services for children"); Walton v.
Carignan, 103 N.C. App. 364, 366, 407 S.E.2d 241 (stating that
"[a]ffordable and adequate (Footnote cont'd. next page)
412 STATE v. COOK Apr. 1993
69 Wn. App. 412, 848 P.2d 1325
The order of summary judgment is reversed, and the
cause is remanded for further proceedings consistent with this opinion.
PEKELIS, A.C.J., and SCHOLFIELD, J., concur.
Reconsideration denied May 14, 1993.
Review granted at 122 Wn.2d 1015 (1993).
