Peckham v. Milroy
104 Wash.App. 887 (2001)
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Rule of Law:
A restrictive covenant prohibiting business use of property is not considered abandoned by a few, minor violations within a large subdivision. Such a covenant is enforceable against a licensed home day care, as public policy encouraging child care does not override private contractual land use agreements.
Facts:
- In 1955, a developer subjected lots in the Spokane Terrace Addition (STA) to a restrictive covenant prohibiting their use for 'business purposes of any kind whatsoever.'
- Gordon Peckham moved into the STA in 1958, and Thomas Milroy's family later moved into a property subject to the covenant.
- In 1995, the Milroys remodeled their home, initially to accommodate their family, which included five children.
- After completing the remodel in December 1995, Mrs. Milroy obtained a state license and began operating a home day care on the property.
- The day care's operation resulted in noise audible inside Peckham's home and caused parents to park in front of his house and walk across his yard.
- In July 1996, Peckham informed Mrs. Milroy that her day care was in violation of the neighborhood covenant.
- A few other home-based businesses, including a drapery business and a painter, had operated within the large STA subdivision, which comprised 41 blocks.
- The Milroys testified that the decision to operate the day care was made in late 1995 after the remodeling was already underway for family reasons.
Procedural Posture:
- Gordon Peckham filed suit against Thomas Milroy in the trial court, seeking an injunction to stop the operation of a home day care.
- Following a trial, the court concluded that the day care was a business that violated the restrictive covenant and granted the injunction.
- The Milroys, as appellants, appealed the trial court's decision to the Washington Court of Appeals.
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Issue:
Does a restrictive covenant prohibiting 'business purposes of any kind whatsoever' become unenforceable against a home day care due to abandonment, when a few other home businesses have operated in the large neighborhood, or does it violate public policy?
Opinions:
Majority - Sweeney, J.
No, the restrictive covenant is enforceable and does not violate public policy. The court held that the covenant had not been abandoned and that public policy considerations do not invalidate private agreements. For abandonment to occur, violations must be 'habitually and substantially' widespread, effectively eroding the general plan of the neighborhood. Here, the four documented home businesses in a subdivision of over 1,500 lots were neither habitual nor substantial and therefore did not constitute abandonment. The court also rejected the defenses of laches and estoppel, finding that Peckham did not unreasonably delay his lawsuit and made no statements or actions inconsistent with his claim; in fact, he actively complained to the county and the Milroys. Finally, the court reasoned that while state statutes prevent municipalities from prohibiting home day cares in residential zones, these statutes do not limit the enforceability of private restrictive covenants. Citing 'Metzner v. Wojdyla', the court affirmed that a licensed home day care is a business, and any change to the enforceability of private covenants on public policy grounds must be made by the Legislature, not the judiciary.
Analysis:
This decision reaffirms the durability and enforceability of private restrictive covenants against claims of abandonment and violation of public policy. It establishes a high bar for proving abandonment, requiring evidence that violations are so widespread as to fundamentally undermine the covenant's purpose, rather than just a few isolated instances. The case also draws a clear line between the reach of public zoning laws and the power of private contracts, holding that legislative policy aimed at municipalities does not automatically override private property agreements. This precedent strengthens the position of homeowners seeking to enforce covenants and serves as a caution to those who might assume a covenant is invalid due to minor, unenforced breaches by others.
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