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

revision until final publication in the Michigan Appeals Reports.

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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

CRESTWOOD HOMEOWNERS ASSOCIATION, 

INC.,

Plaintiff-Appellant,

UNPUBLISHED

September 29, 2022

v No. 359070

Otsego Circuit Court

KATHLEEN PAWLANTA, LC No. 21-018475-CH

Defendant-Appellee.

Before: M. J. KELLY, P.J., AND CAMERON AND HOOD, JJ.

CAMERON, J. (concurring in part and dissenting in part).

In this dispute over whether a homeowners association’s restrictive covenant permits the 

construction of a storage shed, I agree with the majority’s conclusion that the building restriction 

in this case not enforceable because the Association failed to enforce similar violations in the past. 

I also agree with the majority’s conclusion that the phrase “auxiliary construction” in the restrictive 

covenant is not ambiguous and therefore the restrictive covenant is enforceable. But I disagree 

with the majority’s determination that the meaning of the phrase “auxiliary construction” is so 

expansive that it captures nearly any type of new building, including the storage shed in this case, 

so long as the building is complementary to a single-family dwelling. I therefore concur in part 

and dissent in part.

The restrictive covenant states:

No building or other structure shall be erected or altered or permitted on any 

site in the Plat of Crest Wood Manor #2 and Crest Wood Manor #3 other than one 

single family dwelling house with attached garage; except swimming pool, tennis 

court, badminton court, walls or fences and such other auxiliary construction.

In other words, the covenant prohibits construction of any “building or other structures” on the 

property unless the new construction fits into one of two narrow exceptions. First, a property 

owner may build one “single family dwelling house with attached garage.” Second, an owner may 

build a “swimming pool, tennis court, badminton court, walls or fences and such other auxiliary 
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construction.” The majority concludes that the storage shed in this case is expressly authorized 

because it qualifies as an auxiliary construction. 

I take no issue with the majority’s definition of “auxiliary construction” as a structure built

that complements and supplements a single-family home. I also agree that the storage shed in this 

case is a building that is being used in a way that complements Pawlanta’s single-family home. 

Therefore, the generic phrase “auxiliary construction,” standing alone, would appear at first blush 

to be broad enough to permit the construction of Pawlanta’s storage shed.

But the phrase does not stand alone. The covenant uses “auxiliary construction” as a catchall phrase at the end of a short list of structures that are permitted by the Association. And unlike 

the generic catch-all, the list of permissible construction is very specific: a swimming pool, tennis 

court, badminton court, and walls or fences. Thus, the meaning of the phrase auxiliary construction 

is not just found in a dictionary. Rather, it requires us to examine that definition in the context of 

the specific list in which it is found. 

As the majority correctly notes, this examination requires us to apply the cannon ejusdem 

generis. This cannon of construction states that when construing a provision that includes a list of 

terms that includes a catch-all phrase, the meaning of the catch-all phrase is limited to the same 

kind or type of items that are in the list. Stated more plainly, the cannon would instruct that—in a

list limited to apples, oranges, grapefruit, strawberries, tangerines, and “other foods”—the phrase 

“other foods” would include only other fruits.

In my opinion, the majority misapplies this cannon. I first note that opening language for

the restriction prohibits all “building[s] or other structure[s]” unless expressly authorized. Indeed, 

the restriction expressly permits the construction of only one building: a single-family home with 

an attached garage. Following this limited authorization, a specific list of structures is identified 

that may also be built on the property, namely: a swimming pool, tennis court, badminton court, 

and walls or fences. The items in this specific list are all different forms of structures.1 And none 

of the items in the list are buildings.2 The storage shed in this case is unquestionably a building. 

Therefore, the proper application of cannon ejusdem generis would define the catch-all phrase 

“auxiliary construction” to include the same kind or type of structures in the list. Because the 

storage shed is a building and the restrictive covenant permits only structures, the storage shed is 

not permitted.

This analysis is similar to our Supreme Court’s reasoning in Rott v Rott, 508 Mich 274, 

299-300; 972 NW2d 789 (2021), in which the Court considered the following phrase from 

Michigan’s recreational land use act (RUA), MCL 324.73301, “fishing, hunting, trapping, 

camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use 

or trail use.” MCL 324.73301(1). Looking to the “unifying characteristics” of the listed activities, 

 

1 The term “structure” is defined as: “[S]omething constructed, as a building or bridge.” Random 

House Webster’s College Dictionary (2001).

2 The term “building,” is defined as: “[A]ny relatively permanent enclosed structure on a plot of 

land, having a roof and usu[ally] windows.” Random House Webster’s College Dictionary (2001).
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the Court reasoned that the activity at issue—ziplining—was not “any other outdoor recreational” 

activity contemplated by the RUA. The Court’s reasoning is directly applicable in this case 

because the “unifying characteristics” of the listed structures do not include buildings. Thus, 

Pawlanta’s storage shed, which is a building, is very different from the listed structures.

Nevertheless, I concur in part and dissent in part because I agree with the majority that the 

Association waived enforcement by failing to enforce earlier violations.

/s/ Thomas C. Cameron