Walton v. Carignan , 103 N.C. App. 364 ( 1991 )

407 S.E.2d 241 (1991) 103 N.C. App. 364

Richard W. WALTON and wife, Maryann Walton, Plaintiffs-Appellees,
v.
Neil S. CARIGNAN and wife, Sharon B. Carignan, Defendants-Appellants.

No. 901SC992.

Court of Appeals of North Carolina.

Heard April 10, 1991. Decided July 2, 1991.

No brief for plaintiffs-appellees.

Shearin & Archbell by Roy A. Archbell, Jr., Kitty Hawk, for defendants-appellants.

WELLS, Judge.

Because principles of summary judgment law are often stated and well understood, we need not repeat them here. The essential and dispositive question is whether the materials before the trial court presented a factual dispute appropriate for resolution by trial, or whether under the undisputed facts of this case, plaintiffs were entitled to judgment as a matter of law.

Covenants which restrict an owner's use of real property have often presented our courts with questions difficult to resolve, but few cases we have found in the law of this State have presented a question more troubling than the one at issue here.

Affordable and adequate day care for small children is a problem of immense proportions in North Carolina. Studies presented to the trial court in this case and included in the record on appeal indicate that North Carolina has the highest proportion of working mothers of any state in the United States. Women in general, and working mothers in particular, make up a vital segment of talent needed for our various business, commercial, agribusiness enterprises, and professional and institutional services. Yet day-care facilities are in relatively short supply, especially in rural areas and smaller cities and towns. Cost and convenience, as well as dependability and safety of day care for small children, are matters of immediate and serious concern for working mothers and single fathers.

Thus, were we at liberty to do so, we might place our trial and appellate courts in a position to balance these great social needs against the interest of property owners in exercising their property rights. Other courts have done so. In their very appealing argument, defendants have directed our attention, e.g., to a decision of the Michigan Court of Appeals in which that court engaged in a public policy-balancing analysis and determined that similar restrictive covenants would allow small-scale, unobtrusive day-care activities in a house in a residential neighborhood. See Beverly Island Assoc. v. Zinger, 113 Mich. App. 322, 317 N.W.2d 611 (1982). Defendants have also directed our attention to a helpful annotation entitled, "Children's Day-Care Use As Violation of Restrictive Covenant," 29 A.L.R. 4th 730. This annotation reveals that this vexing question is one of national concern, and that different results have been reached in similar cases around the United States.

The courts which have generally followed the Michigan Court of Appeals' approach have tended to focus on the scope of activity as being material, if not dispositive. This approach 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. Under the case-law precedents of this State, we do not perceive that we are at liberty to use this approach to resolve this case.

Our courts have often stated that while restrictive covenants are not favored by law and therefore must be strictly construed; nevertheless, clearly and narrowly drawn restrictive covenants may be employed in such a way that the legitimate objective of a development scheme may be achieved. See Hobby & Son v. Family Homes, 302 N.C. 64, 274 S.E.2d 174 (1981). The principles have been stated in a different way to say that the rule of strict construction may not be used to defeat the plain and obvious purposes of a restriction. See Long v. Branham, 271 N.C. 264, 156 S.E.2d 235 (1967); Black Horse Run Ppty. Owners Assoc. v. Kaleel, 88 N.C.App. 83, 362 S.E.2d 619 (1987), cert. denied, 321 N.C. 742, 366 S.E.2d 856 (1988); Barber v. Dixon, 62 N.C.App. 455, 302 S.E.2d 915, cert. denied, 309 N.C. 191, 305 S.E.2d 732 (1983). See also, Webster, Real Estate Law in North Carolina § 388 (Hetrick res. 1988).

The dispositive facts in this case are not in dispute. The covenants are plain and clear—no commercial activity, no business operation. Defendant Sharon Carignan operates a business. Her profits are small and her activities are caring for small children. Although well motivated and much needed, these are business activities. As difficult as the resolution of this case may be, we have no choice but to rule that the trial court's entry of summary judgment for plaintiffs was correct.

One question remains. Defendants have briefly asserted a question of waiver, pointing out that the materials before the trial court show that numerous other business or professional activities take place, or have taken place, in the Burnside subdivision, including other day-care operations. Defendants contend that plaintiffs have acquiesced to these apparent violations. Our courts have held that acquiescence in violations of restrictive covenants does not amount to a waiver of the right to enforce the restrictions unless changed conditions within the covenanted areas are so radical as practically to destroy the essential objects and purpose of the scheme of development. See Barber v. Dixon, supra, and cases cited and relied upon therein. We find no such conditions of waiver in this record.

For the reasons stated, the judgment of the trial court must be and is

Affirmed.

HEDRICK, C.J., and EAGLES, J., concur.