On July 18, 2007, the Michigan Supreme Court issued its Opinion in Bloomfield Estates Improvement Association, Inc v City of Birmingham, holding a dog park to be a violation of a deed covenant restricting land use to solely residential purposes. Further, the Court held that Plaintiffs could enforce the covenant against the city even where they had watched without objection as the land had been used as a park for the past seventy years because a dog park is a "more serious violation" of the restriction.
The majority reasoned that a dog park is not a residential purpose pursuant to the language contained in the deed restriction because a dog park, unlike a fenced in back yard, is not attached to a residence and could contain an unlimited number of dogs. The majority went so far as to equate a dog park with a public kennel.
In its Opinion, the majority also concluded that a party who has failed to object to a violation of a deed restriction does not lose the right to object to a more serious violation of that restriction. Although it admitted that the determination of what is a “more serious” violation is dependant on the facts of each case, it made a conclusory determination that a dog park is a “more serious” violation of the residential purposes restriction than a regular park. In doing so the Court conducted a factual analysis appropriate for a trier of fact. Depriving the jury of its role in cases that require weighing of credibility and application of facts to law, is a dangerous trend that could inevitably serve to upset the delicate balance between the role of the jury as trier of fact and the role of the judge.
The Bloomfield Estates Opinion may have a profound impact on the enforcement of restrictive covenants and on the means in which such covenants are construed in Michigan. Although it is yet unclear how far these impacts will reach, one thing is certain: for Michigan dog lovers, finding a place for casual recreation may no longer be a walk in the park.
Friday, July 20, 2007
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2 comments:
I can't believe this opinion! I give Justice Kelley all of the credit in the world. If only she could persuade the rest of the Court to use common sense approach!
In a keenly drafted dissent, Justice Kelley questions the use of Webster’s Dictionary to construe phrases within a deed where they have already been construed by the judiciary. She pointed to many cases from other jurisdictions as well as two cases from Michigan courts that have determined that “residential purposes” means purposes other than commercial or business purposes. She has a good point although it should be noted that the majority did not rely on Websters for every relevant term used in the Opinion. For example, Justice Taylor related the dog park to a “public kennel.”
Yet according to the same dictionary used by the Court to resolve the issue of “residential purposes,” a kennel is: a shelter for a dog or cat; an establishment for the breeding or boarding of dogs or cats; or, a pack of dogs. Clearly, a dog park serves none of these purposes and is, thus, not akin to a public kennel.
Seems that Taylor was barking up the wrong tree on this one. It's not like they wanted to open a zoological park or Jurassic park!
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