Heide and Wilkerson own residences in the Benjamin Crossing planned unit development and sought to operate child care homes in their respective residences. The applicable restrictive covenants and local law did not permit such a use in their residences, and thus the landowners filed a complaint seeking damages and declaratory judgment providing that the Homeowners’ Association and the Tippecanoe Area Building Commission could not enforce the restrictive covenants and local law. The Association filed a counter-claim, seeking an injunction to prohibit the operation of child care homes in the residences, and filed for summary judgment. The trial court issued summary judgment in favor of the landowners. The Association appealed, and the Court of Appeals of Indiana reversed and remanded.
Upon the creation of the planned unit development, a Declaration of Covenants was executed, which included a prohibition of home businesses that encompassed child care homes. This Declaration was passed via final resolution by the Tippecanoe Area Plan Commission, and thus became local law. The trial court first found for the Association, but upon second review, found that the planned unit development’s restrictive covenants amounted to a zoning ordinance, as they had been incorporated into the planned unit development ordinance, “and a zoning ordinance may not exclude the operation of a licensed child care home in the operator’s residence.” The trial court granted summary judgment in the landowners’ favor. The Association appealed the determination that the restrictive covenants amounted to zoning ordinances.
In reviewing state law, the appellate court found there was no question that the local government had no authority to prohibit the use of the residences as child care homes, as the legislature had divested local governments of the authority to prohibit such uses by “zoning ordinances.” The Court of Appeals of Indiana could not agree with the trial court that the restrictive covenants were more than a “private contract” and part of a “zoning order,” and thus, found the state law did not apply. As a result, the restrictive covenants’ enforcement could not be prohibited by state law.
The appellate court found the private agreements between property owners embodied in the restrictive covenants were not vitiated by the adoption of the planned unit development ordinance. These restrictive covenants are enforceable between private parties, and thus do not amount to zoning ordinances enforced by municipal officials. As such, the court found the trial court erred in finding the enforcement of the restrictive covenant was prohibited, and erred in granting summary judgment in favor of the landowners. The appellate court reversed and remanded, directing the trial court to grant summary judgment and an injunction in favor of the Association, forbidding the operation of the child care homes within the planned unit development of Benjamin Crossing.
Benjamin Crossing Homeowners’ Ass’n v. Heide, 961 N.E.2d 35 (Ct. App. Ind., 2012)
The opinion can be accessed at: http://www.in.gov/judiciary/opinions/pdf/02071201ewn.pdf