If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

JASON M. CURIS and LAURYN M. CURIS,

Plaintiffs/CounterdefendantsAppellants,

UNPUBLISHED

January 18, 2024

v No. 365003

Oakland Circuit Court

JOHN A. JAMES, SHARON N. JAMES, PERRY 

JOHNSON, PETER MANNINO, and MARIE 

MANNINO,

LC No. 2021-189533-CH

Defendants-Appellees,

and

REGINALD KAKOS, JESSICA KAKOS, ROMAN 

SHLAFER, MILENA SHLAFER, RAMANI 

VADLAMURI, SREEKIRTHI BHAGYA 

VADLAMURI, JACQUES G. DARMON, MARK 

C. MILGROM, Trustee of MARK C. MILGROM 

LIVING TRUST, MOONDEEP AGGARWAL, 

KAMNA AGGARWAL, MAZEN SHINA, NIRAN 

SHINA, LINDA SOLOMON, MONA 

RAPPAPORT, Trustee of DANIEL J. RAPPAPORT 

MARITAL TRUST, MARVIN FISHMAN, 

HEMANT H. SHAH, NAYANA H. SHAH, KEN 

MORGAN, SIMEN SAVAYA, and RACHEL 

SAVAYA,

Defendants/CounteplaintiffsAppellees.

Before: GLEICHER, P.J., and BORRELLO and SHAPIRO, JJ.

PER CURIAM.
-2-

This property dispute involves the proposed redevelopment by 

plaintiffs/counterdefendants, Jason M. Curis and Lauryn M. Curis (individually, “Jason” and 

“Lauryn”; collectively, “the Curises”), of property previously used as an elementary school. The 

trial court ruled in favor of defendants, various residents of the relevant subdivision where the 

subject property lies,1on the parties’ competing motions for summary disposition. On appeal, the 

Curises argue that the trial court erred by (1) refusing to consider certain evidence limiting the 

proposed use of the property, and (2) determining that the Curises’ proposed use constituted a 

more serious violation of the subdivision’s building and use restrictions (BURs) than the former 

school. Because the trial court abused its discretion by excluding the contested evidence, and

because a question of fact exists—under the relevant factors elicited in Bloomfield Estates 

Improvement Ass’n v Birmingham, 479 Mich 206; 737 NW2d 670 (2007)—concerning whether 

the relevant BURs were waived via construction and operation of the school, we reverse and 

remand for further proceedings.

I. BACKGROUND

Franklin Oaks is a residential subdivision in Farmington Hills established in the mid-1940s 

and initially divided into 18 separate lots. In 1945, the subdivision’s creators established BURs 

affecting all 18 lots (the 1945 BURs). The intent and purpose of the 1945 BURs was to ensure 

that Franklin Oaks “develop[ed] into a residential community of the highest type.” Among other 

things, the 1945 BURs limited construction to one single private residence per lot. The essential 

issue here is whether these restrictions, particularly that limiting construction to one residence per 

lot, remain in force and circumscribe the Curis’s redevelopment options for the property at issue.

In 1963, Farmington Public Schools purchased part of lot 11 and all of lot 12 (the school 

property) in Franklin Oaks and subsequently constructed Fairview Elementary School (the school). 

A 1965 document entitled “Amendment of Restrictions Agreement” (the 1965 Amendments) was 

signed by the Farmington Public Schools and the owners of lot 7 and part of lot 8, Mr. and Mrs. 

Goldman. The 1965 Amendments purported to create several new restrictions regarding access to 

the school, parking, landscaping, and future building enlargement. Specifically, the amendments 

waived the parties’ rights under the 1945 BURs “to the extent necessary to permit the 

construction . . . of an elementary school.” They also set various requirements regarding school 

access, parking, and landscaping. The school was demolished in 2012, and the district in 2015 

released a request for proposals (RFP) to purchase the now-vacant former school property.

The Curises have lived in Franklin Oaks since 2013, when they purchased lot 13 subject to 

“[BUR]s and easements of record[.]” They purchased the school property in 2018, which, as 

explained above, included lot 12 and part of lot 11 of the original plat. According to the deed, this 

purchase was subject to the 1945 BURs and the 1965 Amendments, except those based on race, 

religion, or similar factors.

According to Jason’s first affidavit, he initially planned some unspecified form of “single 

family residential development at the subject property . . . .” During Jason’s deposition testimony, 

 

1 All parties involved in this case are provided in the caption of this opinion. For brevity and ease 

of reference, defendants will be referred to collectively as “the residents.”
-3-

however, he stated, “I didn’t know what I was planning on doing [with the property.]” Asked of 

his current plan, Jason said, “I don’t have a use for [the property] right now. I don’t know what I 

want to do with it just yet.” Nevertheless, Jason did not believe he was restricted by “the original 

[BUR]s,” and he believed he could develop anything allowed under the city’s zoning ordinances. 

Jason acknowledged that the applicable ordinance would permit him to construct 21 separate 

dwelling units on the subject property, including mobile homes.2

The Curises filed a complaint against the residents, along with any unknown heirs, 

devisees, and assignees, in August 2021. They asserted one count each for quiet title and 

declaratory relief, requesting that the court enter a judgment (1) that the residents waived the 

subdivision’s BURs and (2) allowing development of the subject property in conformance with 

applicable zoning restrictions. They also asserted a separate quiet-title claim, alleging that the 

subdivision’s BURs “are extinguished by statute” under the MRTA.3 The complaint asserted that 

the Curises “intend[] to use the property for single family residential purposes in compliance with 

the City of Farmington Hills RA-1 single family Residential use as allowed by the City of 

Farmington Hills Zoning and Use Regulations.”

Numerous residents answered and concurrently filed a countercomplaint against the 

Curises, requesting that the court (1) enter a judgment upholding the applicability of the 

subdivision’s BURs “other than those based on race, color, religion, sex, handicap, familial status 

or natural origin,” and (2) enjoin the Curises, their successors, and their assignees from developing 

the subject property contrary to the BURs, particularly the limitation of one residential structure 

per lot. They also requested the same essential relief, but applicable to all real property in the 

subdivision.

The Curises moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that 

the subdivision’s 1945 BURs were waived by the prior construction and operation of the school 

on the subject property, and that their development of the property should, therefore, be limited 

only by the city’s zoning restrictions. According to the Curises, subdivision residents acquiesced 

to the building and operation of the school, which altered the character and use of the property and 

constituted a substantial, extensive, and continuous violation of the 1945 BURs. Further, this 

violation was “significantly more serious than any residential plans allowed by the City of 

Farmington Hill[s] RA-1 Single Family Residential ordinance.”

The residents also moved for summary disposition pursuant to MCR 2.116(C)(10), arguing

that the 1945 BURs remained in force and were explicitly accepted by the Curises when they 

purchased their property. Specifically, the 1945 BURs were never waived because (1) 

notwithstanding the former school, the subdivision’s character remained consistent with that 

intended and fixed by the 1945 BURs, and (2) the school property has been vacant since 2012, 

before the Curises ever purchased property in the subdivision, making the former school “moot” 

 

2 See Farmington Hills Code of Ordinances, Ch 34, § 3.1.4 (requirements and restrictions 

regarding RA-1 One Family Residential zoning district).

3 The parties agree that the MRTA is irrelevant in this case, which should be decided solely on the 

waiver issue.
-4-

in this case. The residents also asserted that uses allowed under the city’s applicable zoning 

ordinance—particularly the possible construction of 21 separate homes, including mobile homes, 

on the two lots at issue—would “drastically change the character of the subdivision and be 

drastically counter to the platters’ intent.”

Responding to the residents’ motion, the Curises clarified an intent to develop the subject 

property “into four residential lots[,] . . . [which] is less serious than the elementary school 

previously built [there].” The Curises provided with their response a survey depicting their 

planned division of the property. They also provided a new affidavit from Jason, in which he 

averred that the attached survey represented the plan for the property.

In reply, the residents argued that the Curises violated MRE 408 by attaching the recent 

survey produced in the course of compromise negotiations, and that Jason’s second affidavit 

improperly contradicted his deposition testimony. Attached to the residents’ reply is an August 

2022 email exchange between the parties’ attorneys, with the subject “Settlement Pursuant to MRE 

408.” In the first email, the Curises’ attorney asked whether the residents “intend to accept the 

settlement” and described the offer as “reasonable compared to alternative possible 

developments.” The residents’ attorney responded that his clients “are not willing to agree to four 

lots. They would be willing to consider two lots.”

The trial court issued an opinion and order ruling in favor of the residents. First, the court 

declined to consider the recent survey and Jason’s second affidavit submitted by the Curises. 

Specifically, it determined that (1) Jason’s second affidavit contradicted his deposition testimony 

about using the subject property for whatever city ordinances would allow; (2) the position taken 

by the Curises in the affidavit and in the survey contradicted their earlier position throughout the 

case; and (3) the Curises’ use of the survey as an exhibit opposing summary disposition violated 

MRE 408. Next, the court concluded that the 1945 BURs were not waived because insufficient 

evidence supported that the former school or any of the other alleged violations (1) were more 

serious than the Curises’ proposed use for the subject property and (2) altered the subdivision’s 

character such as to defeat the purpose of the 1945 BURs. Ultimately, the trial court upheld the 

applicability of the contested BURs, granted the residents’ motion for summary disposition, denied 

the Curises’ motion for summary disposition, and dismissed the Curises’ complaint. This appeal 

followed.

II. STANDARDS OF REVIEW

This Court reviews a trial court’s decision on a motion for summary disposition de novo. 

El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). A motion under 

MCR 2.116(C)(10) tests the factual sufficiency of a claim. Id. at 160. “When considering such a 

motion, a trial court must consider all evidence submitted by the parties in the light most favorable 

to the party opposing the motion.” Id. “A motion under MCR 2.116(C)(10) may only be granted 

when there is no genuine issue of material fact.” Id. “A genuine issue of material fact exists when 

the record leaves open an issue upon which reasonable minds might differ.” Id.

A movant satisfies its burden under MCR 2.116(C)(10) by “submitting affirmative 

evidence that negates an essential element of the nonmoving party’s claim, or by demonstrating to 

the court that the nonmoving party’s evidence is insufficient to establish an essential element of 
-5-

the nonmoving party’s claim.” Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 7; 890 NW2d 344 

(2016) (cleaned up). “[T]he nonmoving party may not rely on mere allegations or denials in 

pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue 

of material fact exists. If the opposing party fails to present documentary evidence establishing 

the existence of a material factual dispute, the motion is properly granted.” Id. (citations omitted; 

quoting Quinto v Cross and Peters Co, 451 Mich 359, 362-363; 547 NW2d 314 (1996)).

“A trial court’s decision whether to admit or exclude evidence will not be disturbed on 

appeal absent an abuse of discretion.” Alpha Capital Mgmt v Rentenbach, 287 Mich App 589, 

620; 792 NW2d 344 (2010), lv den 488 Mich 948 (2010). “The trial court abuses its discretion if 

its decision is outside the range of principled outcomes.” Id. “To the extent that this issue involves 

the meaning of a Michigan Rule of Evidence, we consider this legal issue de novo.” Id.

III. ANALYSIS

The trial court determined that Jason’s second affidavit contradicted his deposition 

testimony, the position taken by the Curises via the affidavit and survey contradicted their earlier 

position throughout the case, and the survey violated MRE 408. The Curises argue that the trial 

court improperly excluded from evidence the survey depicting their proposed development. We

also address whether the trial court abused its discretion by excluding Jason’s related affidavit.

MRE 408 provides:

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or 

offering or promising to accept, a valuable consideration in compromising or 

attempting to compromise a claim which was disputed as to either validity or 

amount, is not admissible to prove liability for or invalidity of the claim or its 

amount. Evidence of conduct or statements made in compromise negotiations is 

likewise not admissible. This rule does not require the exclusion of any evidence 

otherwise discoverable merely because it is presented in the course of compromise 

negotiations. This rule also does not require exclusion when the evidence is offered 

for another purpose, such as proving bias or prejudice of a witness, negativing a 

contention of undue delay, or proving an effort to obstruct a criminal investigation 

or prosecution.

As an initial matter, based on the August 2022 email exchange between the parties’ 

attorneys, the Curises’ plan to develop the subject property into four residential lots, as depicted 

by the survey, was initially discussed as part of a “Settlement Pursuant to MRE 408.” The residents 

were unwilling to consider the Curises’ “offer” of “four lots.” Further, while the Curises claim 

that they submitted the survey for another proper purpose under the court rule, their asserted 

purpose is not one enumerated by MRE 408. Rather, they proposed the survey as evidence 

supporting waiver of the 1945 BURs and, therefore, to prove the invalidity of the residents’ 

counterclaims.

However, the survey was still admissible under MRE 408 as otherwise discoverable 

evidence sufficiently distinct from the parties’ actual settlement negotiations. See In re Estate of 
-6-

Doyle v Covenant Med Ctr, Inc, unpublished4per curiam opinion of the Court of Appeals, issued 

March 3, 2016 (Docket No. 324337), p 14 n 10 (Because “MRE 408 ‘does not require the exclusion 

of any evidence otherwise discoverable merely because it was presented in the course of 

compromise negotiations[,]’ ” the plaintiff “was free [to] pursue the source of . . . factual 

information [contained in the defendant’s otherwise inadmissible settlement offer] and submit that 

evidence in an admissible form with a proper foundation.”).

Here, the Curises did not submit evidence of any settlement negotiations themselves or 

statements made during the course of such negotiations. Rather, they presented the survey 

factually depicting their clarified, proposed use for the property. Further, although MRE 408 “does 

not require” (emphasis added) the exclusion of otherwise discoverable evidence under the rule, 

the trial court nevertheless acted outside the range of principled outcomes and abused its discretion 

by excluding the survey. Specifically, the trial court should have considered the Curises’ clarified 

plan and position as depicted by the survey, especially given that the alternate proposed use 

actually considered by the trial court—development of up to 21 units on the property—was elicited 

by questioning from defense counsel regarding only what Jason believed would be permitted under 

the applicable ordinance.

We similarly conclude that the trial court abused its discretion by excluding Jason’s second 

affidavit. “[A] witness is bound by his or her deposition testimony, and that testimony cannot be 

contradicted by affidavit in an attempt to defeat a motion for summary disposition.” Broz v Plante 

& Moran, PLLC (On Remand), 331 Mich App 39, 56; 951 NW2d 64 (2020). In Gamet v Jenks, 

38 Mich App 719, 726, 197 NW2d 160 (1972),

5

this court observed that

[d]eposition testimony damaging to a party’s case will not always result in 

summary [disposition]. However, when a party makes statements of fact in a ‘clear, 

intelligent, unequivocal’ manner, they should be considered as conclusively 

binding against him in the absence of any explanation or modification, or of a 

showing of mistake or improvidence. The purpose of [the predecessor court rule 

regarding summary disposition] is to allow the trial judge to determine whether a 

factual issue exists. This purpose is not well served by allowing parties to create 

factual issues by merely asserting the contrary in an affidavit after giving damaging 

testimony in a deposition. [(citations omitted).]

 

4

“Unpublished opinions are . . . not binding authority but may be persuasive or instructive.” 

Haydaw v Farm Bureau Ins. Co., 332 Mich App 719, 726 n 5, 957 NW2d 858 (2020).

5 Although this Court is not required to follow cases decided before November 1, 1990, see MCR 

7.215(J)(1), a published case decided by this Court “has precedential effect under the rule of stare 

decisis,” MCR 7.215(C)(2). See also Woodring v Phoenix Ins Co, 325 Mich App 108, 114-115; 

923 NW2d 607 (2018) (stating that although this Court is not “strictly required to follow 

uncontradicted opinions from this Court decided before November 1, 1990,” those opinions are 

nonetheless “considered to be precedent and entitled to significantly greater deference than are 

unpublished cases.”).
-7-

Consistent with this rationale, a party may provide an affidavit to explain, clarify, or expand upon 

deposition testimony, especially where the deposition testimony was not unequivocal. Wallad v 

Access BIDCO, Inc, 236 Mich App 303, 312-313, 600 NW2d 664 (1999); see also Broz, 331 Mich 

App at 56 (“although a witness is bound by his or her deposition testimony, an affidavit that 

clarifies or expands upon previous testimony is not prohibited from consideration.”). 

Here, the Curises generally asserted an intent throughout the case to develop some 

unspecified residential use at the property consistent with the applicable zoning ordinance. But 

Jason testified that he was uncertain of his particular plans for the property. Questioned by defense 

counsel, Jason acknowledged believing that he could, legally, develop anything allowed by the 

city. Jason later averred that he planned a “single family residential development [at] the subject 

property in conformance with the City of Farmington Hills, RA-I single family Residential 

Ordinance as represented in the attached survey.”

We agree with the Curises that Jason never testified to any definite plan for the property, 

let alone one involving construction of 21 separate units. Jason’s testimony on the Curises’ 

proposed use—that he (1) had no specific plan for the property “just yet,” i.e., at the time of his 

deposition, and (2) believed he was only restricted by the applicable zoning ordinance—was far 

from a clear, unequivocal statement of fact on the matter. As such, the Curises properly submitted 

Jason’s second affidavit (and the related survey) to clarify and expand upon his earlier uncertainty 

concerning plans for the property. Accordingly, the trial court abused its discretion by excluding 

Jason’s second affidavit.6

The Curises argue further that the trial court erred in evaluating the factors under 

Bloomfield Estates, 479 Mich 206. Properly considering Jason’s second affidavit and the related 

survey under the applicable factors, we conclude that a question of fact exists concerning waiver 

of the 1945 BURs.

Property owners in Michigan may “create and enforce covenants affecting their own 

property.” Id. at 214. “Such deed restrictions generally constitute a property right of distinct 

worth.” Id. (quotation marks and citation omitted). In Bloomfield, the Michigan Supreme Court 

stated, “If a deed restriction is unambiguous, we will enforce that deed restriction as written unless 

 

6 We note that the trial court potentially applied erroneous reasoning by commenting that the 

affidavit and survey both contradicted the Curises’ general position throughout the case. The trial 

court did not support this analysis with any authority, and the only authority on this issue presented 

in the trial court and on appeal relates to affidavits contradicting deposition testimony, not other 

documents contradicting a parties’ general position in court filings. See Peace v State Farm Mut 

Auto Ins, Co, unpublished per curiam opinion of the Court of Appeals, issued January 21, 2016 

(Docket No. 323891), p 4 n 2 (“while it is true that a litigant cannot create a question of fact by 

offering her own affidavit to contradict her own sworn deposition testimony, [the defendant] offers 

no authority to suggest that this rule has been applied to documents other than affidavits or personal 

statements by the individual . . .”). In any event, any potential error in this regard was cumulative 

and need not be discussed further.
-8-

the restriction contravenes law or public policy, or has been waived by acquiescence to prior 

violations . . . .” Id. (emphasis added).

When determining whether prior acquiescence to a violation of a deed restriction 

prevents a p[arty] from contesting [a later] violation, we compare the character of 

the prior violation and the [later] violation. Only if the [later] violation constitutes 

a “more serious” violation of the deed restriction may a p[arty] contest the deed 

restriction despite the p[arty]’s acquiescence to prior violations of a less serious 

character. In general, a “more serious” violation occurs when a particular use of 

property constitutes a more substantial departure from what is contemplated or 

allowable under a deed when compared to a previous violation. [Id. at 219.]

This determination “will hinge on the facts of a particular case,” but courts may consider:

(1) whether the later violation involved the erection of a structure where no such 

structure had previously been permitted; (2) whether the later violation constituted 

a more extensive violation of restrictions on the size or extent of a building; (3) 

whether the later violation increased the use of land from a sporadic violation of 

the restriction to a continuous violation; (4) whether the later violation significantly 

increased the noise or pollutant level on restricted land; (5) whether the later 

violation increased the level of traffic occasioned by the prior violation; (6) whether 

the later violation permitted an action that had been previously prohibited; and (7) 

whether the later violation altered in some material respect the character of the use 

of the restricted property. [Id. at 219-220 (footnotes omitted).]

See also Carey v Lauhoff, 301 Mich 168, 174; 3 NW2d 67 (1942) (“The true rule seems to be that, 

even after one or more breaches [of a BUR], equity will grant relief if the restriction can be shown 

to be of value to [the] complainant, and such breaches have not resulted in a subversion of the 

original scheme of development resulting in a substantial, if not entire, change in the 

neighborhood.”); Rofe v Robinson, 126 Mich App 151, 155; 336 NW2d 778 (1983) (“There is no

waiver where the character of the neighborhood intended and fixed by the restrictions remains 

unchanged.”)7

(1) Whether the later violation involved the erection of a structure where no such structure had

previously been permitted.

This factor is neutral between the school and the Curises’ proposed use. Importantly, both 

developments involved or would involve the erection of a structure or structures prohibited by the 

1945 BURs. The school built in the 1960’s was certainly not a residential structure as required by 

 

7 While the residents cite to both these cases in addition to Bloomfield Estates, the test of waiver 

has seemingly evolved from these earlier cases’ focus on a neighborhood’s overall character to the 

evaluation of the relative seriousness of any prior violations, as articulated in Bloomfield Estates. 

In analyzing this issue, we apply the Supreme Court’s more recent standard from Bloomfield 

Estates and the factors articulated therein.
-9-

the 1945 BURs. And the Curises’ proposed use, while only involving residential development, 

calls for constructing one more residential structure per lot than allowed under the 1945 BURs. 

(2) Whether the later violation constituted a more extensive violation of restrictions on the size 

or extent of a building.

This factor somewhat favors the school as the more serious violation. As discussed, both 

developments involved or would involve the erection of a structure or structures prohibited by the 

1945 BURs. However, the size and extent of the former school constituted a more serious violation 

than would the Curises’ proposed development. The school was a large, nonresidential building, 

whereas the Curises plan involves developing four residences essentially, if not technically, 

consistent with the 1945 BURs. While the plan would add one more residence per existing lot 

than allowed under the restrictions, the four new lots would still be of substantial size and thus 

consistent with the neighborhood’s intended and longstanding character.8

(3) Whether the later violation increased the use of land from a sporadic violation of the 

restriction to a continuous violation.

This factor is neutral between the school and the Curises’ proposed use. The school 

operated for over 40 years in violation of the 1945 BURs. At the same time, the Curises’ 

development would involve construction of physical structures that would violate the 1945 BURs 

in a similarly permanent, and thus presumably continuous, manner. To the extent the residents 

emphasize that the school was demolished in 2012, it nonetheless constituted a continuous 

violation for more than four decades.

(4) Whether the later violation significantly increased the noise or pollutant level on restricted 

land.

This factor favors the school as the more serious violation. Admittedly, the 1965 

Amendments included various provisions to mollify potential adverse effects, particularly traffic 

and noise, from the school. Nonetheless, it is intuitively clear to this Court that the addition of just 

two more residential lots— not significantly smaller than other lots in the subdivision—on the 

subject property would not significantly increase the noise or pollutant level of the land, especially 

when compared to the former school.

(5) Whether the later violation increased the level of traffic occasioned by the prior violation.

For similar reasons, this factor also favors the school as the more serious violation. 

Specifically, despite apparent efforts to control traffic from the former school, adding just two 

 

8 Notably, while the Curises’ survey shows that their proposed lots would respectively measure 

2.33, 3.1, 3.14, and 3.89 acres, there is nothing in the record to definitively establish the 

comparative size of the subdivision’s other lots. But viewing the survey alongside the images of 

the subdivision’s original plat and current layout, the proposed lots do not appear significantly—

if at all—smaller than numerous of the subdivision’s existing lots. 
-10-

additional residential lots on the property would not significantly increase the traffic level of the 

land compared to a public and frequently-visited elementary school.

(6) Whether the later violation permitted an action that had been previously prohibited.

This factor is neutral between the school and the Curises’ proposed use. As discussed 

under the first factor, both developments involved or would involve the erection of a structure or 

structures prohibited by the 1945 BURs.

(7) Whether the later violation altered in some material respect the character of the use of the 

restricted property.

This factor favors the school as the more serious violation. While the Curises’ plan would 

add one more residence per existing lot than allowed under the restrictions, the four new lots would 

still be of substantial size and, as already mentioned, thus consistent with the neighborhood’s 

intended and longstanding character. And the plan maintains the residential use mandated by the 

1945 BURs. In contrast, the school was contrary to the subdivision’s intended character as “a 

residential community of the highest type” (emphasis added), and to the residential use 

requirement mandated by the 1945 BURs.

Given that the balance of the Bloomfield factors support that the school constituted a more

substantial departure from the 1945 BURs than the Curises’ proposed development would, the trial 

court erred by finding, as a matter of law, that these restrictions remained in effect, i.e, were not 

waived by the former school. This issue should have been submitted to a fact-finder.

Reversed and remanded for further proceedings consistent with this opinion. We do not 

retain jurisdiction.

/s/ Elizabeth L. Gleicher

/s/ Stephen L. Borrello

/s/ Douglas B. Shapiro