holding that group health care facility was a “residential” use as opposed to an institutional use of the property. In dicta, the Hobby court stated, “[w]hile we deem it unnecessary to reach the question of whether the individuals living at the [group care] home constitute a family, we are compelled to observe that the surrogate parents and the adults subject to their supervision function as an integrated unit rather than independent persons who share only the place where they sleep and take their meals as would boarders in a boarding house”
How later courts described this case
- holding that group health care facility was a “residential” use as opposed to an institutional use of the property. In dicta, the Hobby court stated, “[w]hile we deem it unnecessary to reach the question of whether the individuals living at the [group care] home constitute a family, we are compelled to observe that the surrogate parents and the adults subject to their supervision function as an integrated unit rather than independent persons who share only the place where they sleep and take their meals as would boarders in a boarding house”
- holding that “a provision in a restrictive covenant as to the character of the structure which may be located upon a lot does not by itself constitute a restriction of the premises to a particular use”
- explaining that each part of a declaration of restrictive covenants must be given effect
- stating that restrictive covenants must be “clearly and unambiguously drafted”
Written by the judges who cited it.
The opinion
Justice HUSKINS
dissenting.
I respectfully dissent from the majority opinion. The restrictive covenant in question, when properly construed, prohibits nonresidential use of property in the Scarsdale subdivision in the City of Raleigh, North Carolina. The house at 300 Millbrook Road is presently used for institutional purposes — not residential purposes.
To operate the facility, (1) a caretaker staff and house manager are required, (2) the operation is strictly licensed and regulated by government agencies, (3) the operation is financed by a grant from the State plus welfare, social security and employment payments of the occupants, and (4) defendant on occasion has itself characterized the use of 300 Millbrook Road as institutional. In applying for a permit to operate the facility, defendant was required to categorize the property as “Residential, Commercial, Office, Institutional, Day Care, or Industrial.” Defendant categorized the property as “Institutional.”
In my view, the majority goes beyond the parameters of sound legal reasoning to help these unfortunate wards of the State and society. If this had been a college fraternity, a benevolent social order providing for destitute members or a refuge for former criminals trying to re-enter society, the majority would likely say such use is nonresidential. Yet the reasoning applied today would allow such uses of Scarsdale property. The Court should not, by interpretation, defeat the plain and obvious purpose of restrictive covenants. Long v. Branham, 271 N.C. 264 , 156 S.E.2d 235 (1967).
The keeping of boarders has been held to be a nonresidential use unless keeping a boarder is incidental to the use of a premises by a family. See generally 14 A.L.R.2d 1376 , 1406 (1950). If boarding people is a nonresidential use, certainly this use, wherein four retarded persons are housed for a fee provided from funds of the occupants as well as grants from the State, is also nonresidential.
Finally, I note the public policy of this State as expressed in
*77 G.S. 168-9:
Each handicapped citizen shall have the same right as any other citizen to live and reside in residential communities, homes, and group homes, and no person or group of persons, including governmental bodies or political subdivisions of the State, shall be permitted, or have the authority, to prevent any handicapped citizen, on the basis of his or her handicap, from living and residing in residential communities, homes, and group homes on the same basis and conditions as any other citizen.
This is a policy which I wholeheartedly endorse. However, in the present case, the residents of Scarsdale subdivision must use their property for residential purposes only because the covenant in each deed so requires. Any handicapped person is free to acquire a home in the Scarsdale subdivision and reside there under the same rules and restrictions as other residents. Public policy requires no more. Neither should this Court.
Chief Justice Branch joins in this dissent.