FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:

SCOTT A. TANNER JUDSON G. BARCE

Tanner Law Group HUNTER J. REECE

Indianapolis, Indiana BONNIE J. ADAMS

Barce & Reece, P.C.

Fowler, Indiana

IN THE

COURT OF APPEALS OF INDIANA

BENJAMIN CROSSING HOMEOWNERS‟ )

ASSOCIATION, INC., )

)

Appellant-Plaintiff, )

)

vs. ) No. 79A04-1103-PL-185

)

ROSE HEIDE and DAVID F. WILKERSON, )

)

Appellees-Defendants. )

APPEAL FROM THE TIPPECANOE SUPERIOR COURT

The Honorable Thomas H. Busch, Judge

Cause No. 79D02-0810-PL-40

February 7, 2012

OPINION - FOR PUBLICATION

NAJAM, Judge
2

STATEMENT OF THE CASE

Rose Heide and David F. Wilkerson, residents of a planned unit development in 

Tippecanoe County called Benjamin Crossing, filed a complaint seeking damages and a 

declaratory judgment that the Tippecanoe Area Building Commission (“Building 

Commission”) and the Benjamin Crossing Homeowners‟ Association (“Homeowners‟

Association” or “the Association”) could not enforce a restrictive covenant to prohibit the 

operation of a child care home in their respective residences in Benjamin Crossing. The 

restrictive covenant was also incorporated into the planned unit development ordinance 

for Benjamin Crossing, but state law prohibits enforcement of a zoning ordinance that 

prohibits the operation of a child care home in a residence. 

The Homeowners‟ Association filed a counterclaim seeking an injunction to 

prohibit Heide and Wilkerson from operating child care homes in their residences. The 

Homeowners‟ Association then filed a motion for summary judgment on the 

counterclaim. The trial court granted summary judgment in favor of Heide and 

Wilkerson on the Association‟s counterclaim, and the Homeowners‟ Association now 

appeals. The Association presents the following issue for review: whether the trial court 

erred when it concluded that the Homeowners‟ Association may not enforce restrictive 

covenants prohibiting the operation of a child care home in the planned unit development 

where the planned unit development ordinance that adopted the covenants may not be 

enforced under state law.

We reverse and remand with instructions. 
3

FACTS AND PROCEDURAL HISTORY

In early 2003, C.P. Morgan Communities, L.P. and C.P. Morgan Investment Co., 

as members of Benjamin Crossing LLC (“Developer”), executed the Declaration of 

Covenants, Conditions and Restrictions for Benjamin Crossing (“the Declaration”). The 

Declaration in part sets forth the restrictive covenants for Benjamin Crossing, a planned 

unit development (“PUD”) and residential subdivision in Tippecanoe County. On March 

5, 2003, the Tippecanoe Area Plan Commission (“Plan Commission”) gave final 

approval for Section 1 of the PUD when it passed Resolution PD 03-03. That resolution 

also approved the Declaration. Resolution PD 03-03 and the Declaration were recorded 

simultaneously on March 7, 2003, in the Tippecanoe County Recorder‟s Office.

Regarding the establishment of the Homeowners‟ Association, the Declaration 

provides, in part: 

Section 1.2 “Association” shall mean Benjamin Crossing Homeowners‟ 

Association, Inc., or an entity of similar name, its successors and assigns, 

which shall be created as an Indiana nonprofit corporation formed or to be 

formed under the Indiana Nonprofit Corporation Act of 1991, as amended.

* * *

Section 4.1 Organization of Association. The Association shall be 

organized as a nonprofit corporation under the laws of the State of Indiana, 

to be operated in accordance with the Articles of Incorporation which have 

been filed or will be filed by Developer, and the Code of By-Laws of the 

Association.

* * *

Section 4.3 General Duties of the Association. The Association . . . shall 

also have the right, but not the obligation[,] to act on behalf of any Owner 

or Owners in seeking enforcement of the terms, covenants, conditions and 

restrictions contained in the Plats. . . . 
4

Appellant‟s App. at 61, 70-71 (emphasis added). The Declaration further provides, in 

relevant part:

Section 7.1 Use of Lots. Except as permitted by Section 7.26[1]hereof, 

each Lot shall be used for residential purposes only, and no trade or 

business of any kind may be carried therein. The use of a portion of a 

Dwelling Unit as an office by an Owner, or his tenant shall not be 

considered to be a violation of this covenant if Owner is in compliance with 

Section 7.26 below. No building or structure shall be located on any Lot 

outside of the setback lines designated on the Plats. 

* * *

Section 7.24 Business Uses. No trade or business may be conducted in or 

from any Lot, except that an Owner or occupant residing in a Dwelling Unit 

may conduct business activities within the Dwelling Unit so long as: (a) 

the existence of the business activity is not apparent or detectable by sight, 

sound or smell from outside the Dwelling Unit; (b) the business activity 

conforms to all zoning requirements for the Real Estate; (c) the business 

activity does not involve persons coming onto the Real Estate who do not 

reside in the Real Estate or door-to-door solicitation of residents of the Real 

Estate; and (d) the business activity is consistent with the residential 

character of the Real Estate and does not constitute a nuisance, or a 

hazardous or offensive use, or threaten the security or safety of other 

residents of the Real Estate, as may be determined in the sole discretion of 

the Board. 

The terms “business” and “trade”, as used in this provision, shall be 

construed to have their ordinary, generally accepted meaning and shall 

include, without limitation, any occupation, work or activity undertaken on 

an ongoing basis which involve[s] the provision of goods or services to 

persons other than the provider‟s family and for which the provider 

receives a fee, compensation, or other form of consideration, regardless of 

whether: (i) such activity is engaged in full[-] or part-time; (ii) such 

activity is intended to or does generate a profit; or (iii) a license is required 

therefore [sic]. Notwithstanding the above, the leasing of a Lot or Dwelling 

Unit shall not be considered a trade or business within the meaning of this 

section. This section does not apply to any commercial property within the 

Real Estate nor shall it apply to any activity conducted by the Developer or 

 

1

 The reference to Section 7.26 in Section 7.1 of the Declaration is apparently a typographical 

error. Section 7.26 refers to playground equipment. The reference in Section 7.1 should be to Section 

7.24.
5

a builder approved by the Developer with respect to its development and 

sale of the Real Estate or its use of any Lots or Dwelling Units which it 

owns within the Real Estate. 

* * *

Section 8.2 Authority and Enforcement.

(a) Upon the violation of this Declaration, the By-Laws, or any rules and 

regulations duly adopted hereunder, including, without limitation, the 

failure to timely pay any assessments, the Association shall have the power, 

after fifteen (15) days[‟] written notice to the Owner or the occupant of said 

violation, and failure by said Owner or occupant to cure the violation: (i) to 

cause the Association to correct the violation at its own cost and expense, 

which said cost and expense shall constitute a continuing lien upon the Lot 

of the Owner of the occupant who is guilty of such violation; (ii) to suspend 

an Owner‟s right to vote in the Association; and (iii) to suspend an Owner 

or occupant‟s right (and the right of his or her family, guests, and tenants) 

to use any of the Common Areas. . . . 

(b) Notwithstanding subsection (a) above, a violation or threatened 

violation of any of the covenants and restrictions contained in this 

Declaration and the provisions contained in the Articles of Incorporation 

and By-Laws of the Association, or any rules and regulations adopted 

hereunder, shall be grounds for an action at law or equity instituted by the 

Developer, the Association, or any Owner against any person violating or 

threatening to violate any such covenant, restriction, rule, or regulation. . . . 

Id. at 80, 85-86, 89 (emphases added).

In May 2003, Rose Heide purchased a home in Benjamin Crossing. Heide lives in 

the residence, and in April 2008 she began operating a licensed child care home in her 

residence. On weekdays, Heide cares for up to twelve children, only three of whom 

reside in Benjamin Crossing. The children are usually dropped off at Heide‟s home at 

7:30 a.m., and they are usually picked up by 6:00 p.m., although the child care home is 

occasionally open as late as 10:30 p.m. Heide has a fenced backyard containing at least 

one swingset. The children in Heide‟s care play under adult supervision in Heide‟s yard 
6

at the same time for approximately thirty minutes three times each day. Heide previously 

advertised her child care operation by placing a sign in her yard, but at the Association‟s 

request she removed the sign. 

Heide‟s home is a two-story house of approximately 3600 square feet. The entire 

downstairs of the home is used for the child care operation (excepting the garage). Heide 

filed a Schedule C (Profit or Loss from Business) and Form 8829 (Expenses for Business 

Use of Your Home) with her federal income tax return. On her tax return she indicated 

that approximately one hundred percent of her annual income is from operating the child 

care business and that fifty percent of her home is used for the child care operation. 

Wilkerson purchased a home in Benjamin Crossing in February 2008. In March 

2008, he and his wife began operating a licensed child care home in their residence, and 

the business has had at least one part-time employee. On weekdays Wilkerson‟s wife 

cares for up to twelve children, none of whom reside in Benjamin Crossing. The children 

are usually dropped off at Wilkerson‟s home at 8:00 a.m., and they are usually picked up 

between 5:00 and 6:00 p.m., although the child care operation is occasionally open as 

early at 6:00 a.m. and as late as 11:00 p.m. Wilkerson has a fenced backyard containing 

at least one swingset as well as some riding toys, balls, and bikes. The children in 

Wilkerson‟s care play under adult supervision in Wilkerson‟s yard at the same time twice 

each day for approximately thirty minutes, sometimes longer in the summer. 

Wilkerson‟s home is a two-story house of approximately 2800 square feet. The 

entire downstairs of the home is used for the child care operation (excepting the garage). 

Wilkerson and his wife filed a Schedule C (Profit or Loss from Business) and Form 8829 
7

(Expenses for Business Use of Your Home) with their federal income tax return. On the

tax return they indicated that approximately forty percent of their annual income is from 

operating the child care business and that forty-two percent of the home is used for the 

child care operation. 

On October 29, 2008, Heide and Wilkerson filed a complaint against the 

Homeowners‟ Association, the Building Commission,2and C.P. Morgan Communities, 

L.P., seeking damages and a declaratory judgment that the Building Commission and the 

Association could not enforce the restrictive covenant that prohibits the operation of a 

business in residences in the PUD.3 The Association filed a motion to dismiss the 

complaint as well as a counterclaim, seeking an injunction to prohibit Heide and 

Wilkerson from operating their child care homes in Benjamin Crossing. Following a 

hearing, the trial court granted the Association‟s motion to dismiss the complaint on the 

ground that Lewis-Levett v. Day, 87 N.E.2d 293 (Ind. Ct. App. 2007), “permits the 

enforcement of a restrictive covenant prohibiting the operation of businesses within a 

development to which the covenant applies against a licensed daycare.” Appellant‟s 

App. at 5. 

 

2

 In the complaint, Heide and Wilkerson allege that the Building Commission is responsible for 

enforcing the covenants in Benjamin Crossing. The trial court denied the Building Commission‟s motion 

to dismiss the complaint, but the Building Commission later dismissed its counterclaim against Heide and 

Wilkerson, and Heide and Wilkerson dismissed their claims against the Building Commission, without 

prejudice.

3

 In the complaint Heide and Wilkerson alleged that they had purchased their homes in Benjamin 

Crossing in reliance on statements by C.P. Morgan Communities, L.P. personnel that restrictive 

covenants for the PUD did not prohibit the operation of a child care home in the PUD. The claim against 

C.P. Morgan Communities, L.P. is not before us on appeal. 
8

On January 22, 2010, the Homeowners‟ Association filed a motion for summary 

judgment on its counterclaim. Apparently assuming that the trial court would enter 

judgment for the Homeowners‟ Association, neither Heide nor Wilkerson filed any 

response, designated evidence, or filed a summary judgment motion. After a hearing, the 

trial court reversed the reasoning behind its prior order granting the Association‟s motion 

to dismiss Heide and Wilkerson‟s complaint, finding in relevant part that the “restrictive 

covenants of a planned unit development have the status of a zoning ordinance, and a 

zoning ordinance may not exclude the operation of a licensed child care home in the 

operator‟s residence.” Appellant‟s App. at 13. The trial court then granted summary 

judgment for Heide and Wilkerson on the Association‟s counterclaim. The 

Homeowners‟ Association now appeals. 

DISCUSSION AND DECISION

The Homeowners‟ Association appeals the trial court‟s order denying summary 

judgment for the Association and granting summary judgment for Heide and Wilkerson. 

In an appeal from the grant or denial of summary judgment, we apply the same standard 

used by the trial court. See Hartman v. Keri, 883 N.E.2d 774, 777 (Ind. 2008). We 

review a summary judgment order de novo. Bules v. Marshall County, 920 N.E.2d 247, 

250 (Ind. 2010). The purpose of summary judgment is to end litigation about which there 

can be no factual dispute and which may be determined as a matter of law. Shelter Ins. 

Co. v. Woolems, 759 N.E.2d 1151, 1153 (Ind. Ct. App. 2001), trans. denied. We must 

determine whether the evidence that the parties designated to the trial court presents a 

genuine issue of material fact and whether the moving party is entitled to a judgment as a 
9

matter of law. Ind. Trial Rule 56(C); Bules, 920 N.E.2d at 250. We construe all factual 

inferences in the nonmoving party‟s favor and resolve all doubts as to the existence of a 

material issue against the moving party. Bules, 920 N.E.2d at 250. Summary judgment 

is a lethal weapon and courts must be mindful of its aims and targets and beware of 

overkill in its use. Heeb v. Smith, 613 N.E.2d 416, 420 (Ind. Ct. App. 1993), trans. 

denied.

Although the trial court entered findings and conclusions, they are not binding 

upon this court. Dorman v. Osmose, Inc., 782 N.E.2d 463, 466 (Ind. Ct. App. 2003). 

However, the findings facilitate our review by providing valuable insight into the court‟s 

decision. Id. If the trial court‟s summary judgment can be sustained on any theory or 

basis in the record, we must affirm. Id. 

The Homeowners‟ Association contends that the trial court erred when it granted 

summary judgment in favor of Heide and Wilkerson on the Association‟s counterclaim. 

Specifically, the Association asserts that the trial court erred when it concluded that 

“restrictive covenants of a planned unit development have the status of a zoning 

ordinance” and that, because a zoning ordinance may not prohibit the operation of a child 

care home in the operator‟s residence, neither may such a restrictive covenant be 

enforced where the restrictive covenant has been adopted in a PUD ordinance. See

Appellant‟s App. at 13. We agree with the Association that the planned unit development 

ordinance has no effect on the Association‟s authority to enforce the private restrictive 

covenants at issue. 
10

The creation of a planned unit development is a legislative act and PUD provisions 

are zoning ordinances.4 Story Bed & Breakfast, LLP v. Brown County Area Plan 

Comm‟n, 819 N.E.2d 55, 64 (Ind. 2004) (citation omitted). Restrictive covenants and 

zoning ordinances, including planned unit development ordinances, are tools used to 

restrict the use of real property. Our supreme court has described restrictive covenants as 

follows:

“A restrictive covenant is an agreement between a grantor and a grantee in 

which the latter agrees to refrain from using his property in a particular 

manner.” Johnson v. Dawson, 856 N.E.2d 769, 772 (Ind. Ct. App. 2006). 

Restrictive covenants have also been described as “ „restrictions arising out 

of agreements between private parties who, in the exercise of their 

constitutional right of freedom of contract, can impose whatever lawful 

restrictions upon the use of their lands that they deem advantageous or 

desirable.‟ ” Ogden v. Premier Properties, USA, Inc., 755 N.E.2d 661, 667 

(Ind. Ct. App. 2001) (quoting 5 Edward H. Ziegler, Jr., RATHKOPF‟S 

THE LAW OF ZONING AND PLANNING § 57.02 at 57-3 (2001)). This 

is in contrast to restrictions on land use imposed by a governmental zoning 

body, which are “ „imposed by the municipality for the public welfare 

. . . .‟ ” Id.

Beineke v. Chem. Waste Mgmt. of Ind., LLC, 868 N.E.2d 534, 538 (Ind. 2007). And 

Indiana Code Section 36-7-4-601(d)(1) clarifies that legislative bodies use zoning 

ordinances to establish districts for particular land uses, such as agricultural, commercial, 

industrial, or residential uses. Zoning ordinances also “regulate how real property is 

developed, maintained, and used” in each district. Ind. Code § 36-7-4-601(d)(2).

This court described the difference between zoning ordinances and restrictive 

covenants in Suess v. Vogelgesang, 151 Ind. App. 631, 281 N.E.2d 536 (1972). The 

court held that the “issuance of a variance grant is not invalid merely because utilization 

 

4

 Because planned unit development ordinances are zoning ordinances, our references to zoning 

ordinances in the remainder of the opinion apply equally to planned unit development ordinances.
11

of the grant may be in violation of private restrictive covenants.” Id. at 544. The court 

also observed that “[i]t is quite well established, in Indiana as elsewhere, that zoning 

ordinances and laws cannot relieve real estate from valid private restrictive covenants.” 

Id. at 541 (citation omitted). And the court further stated that “[z]oning regulations and 

private restrictions do not affect each other.” Id. at 542 (citation and internal quotation 

marks omitted). 

“The zoning restrictions imposed upon a property owner‟s land are the 

measure of his obligations to the community; the private covenant is merely 

an indication of the measure of his obligation to a private party, which may 

or may not be enforceable but which cannot, in either event, affect the 

necessity of conforming to the comprehensive plan set forth in the 

ordinance.”

Id. at 543-44 (quoting 3 Rathkopf, The Law of Zoning and Planning, § 74-1 et seq.

(omission in original). 

Suess involved the grant of a variance that was contrary to existing restrictive 

covenants. While the facts and specific holding of Suess are not applicable in this case, 

the reasoning applies. Here, the trial court held that when the Declaration was 

incorporated in the PUD ordinance, the restrictive covenants contained in the Declaration 

acquired “the status of a zoning ordinance” and that the PUD ordinance superseded the 

restrictive covenants, which lost their private character. Appellant‟s App. at 13. That 

conclusion is contrary to law. As explained in Suess, restrictive covenants are 

agreements between private parties and are enforceable by those parties. Zoning 

ordinances, such as the planned unit development ordinance at issue here, arise from an 

exercise of the government‟s police power and have no effect on restrictive covenants, 

which set out the rights and obligations of private parties to each other. 
12

The question presented in this case is whether the Homeowners‟ Association may 

enforce restrictive covenants against the operation of a child care home in Benjamin 

Crossing when the Building Commission is prohibited by Indiana Code Section 36-7-4-

1108 from enforcing those same provisions in the planned unit development ordinance. 

The statute provides, in relevant part:

(a) This section applies only to a child care home that is used as the primary 

residence of the person who operates the child care home.

(b) As used in this section, “child care home” has the meaning set forth in 

IC 12-7-2-28.6.

(c) Except as provided in subsection (e), a zoning ordinance may not do any 

of the following:

(1) Exclude a child care home from a residential area solely 

because the child care home is a business.

(2) Impose limits on the number of children that may be 

served by a child care home at any one (1) time that vary 

from the limits set forth in IC 12-7-2-33.7 and IC 12-7-2-

33.8.

(3) Impose requirements or restrictions upon child care homes 

that vary from the requirements and restrictions imposed 

upon child care homes by rules adopted by the division of 

family resources or the fire prevention and building safety 

commission.

Ind. Code § 36-7-4-1108 (emphasis added). A “child care home” is defined as 

a residential structure in which at least six (6) children (not including the 

children for whom the provider is a parent, stepparent, guardian, custodian, 

or other relative or any child who is at least fourteen (14) years of age and 

does not require child care) at any time receive child care from a provider:

(1) while unattended by a parent, legal guardian, or custodian;

(2) for regular compensation; and
13

(3) for more than four (4) hours but less than twenty-four (24) hours in each 

of ten (10) consecutive days per year, excluding intervening Saturdays, 

Sundays, and holidays.

Ind. Code § 12-7-2-28.6.

The trial court found that the Declaration was “not merely a private contract but in 

fact . . . part of a zoning order.” Appellant‟s App. at 22. We cannot agree. The statutory 

prohibition under Indiana Code Section 36-7-4-1108 restricts the authority of a 

municipality when enacting or enforcing a zoning ordinance. The prohibition against a 

zoning ordinance barring the operation of a child care home in a residence is directed to 

the municipality and renders any such ordinance unenforceable by the municipality. On 

the other hand, the restrictive covenants in the Declaration set out the mutual obligations 

and rights of property owners to each other. Those restrictive covenants are enforceable 

by the private parties to the Declaration and were not vitiated by the adoption of the 

planned unit development ordinance that included them. See id. Thus, we hold that the 

restrictive covenants did not cease to exist independently when they were adopted and 

included in the planned unit development ordinance that established Benjamin Crossing. 

See Suess, 281 N.E.2d at 534-44. 

In sum, we decline to hold that the County‟s approval of a PUD obviates the 

underlying contract right of the property owners, through the Homeowners‟ Association,

to enforce the restrictive covenants against operation of a home day care in Benjamin 

Crossing. The restrictive covenant exists independent of the ordinance and may be 

enforced by the Association pursuant to the terms of the Declaration. Thus, the trial court 

erred when it concluded that Section 36-7-4-1108 prohibits the Association from 
14

enforcing the restrictive covenant banning the operation of businesses in residences in 

Benjamin Crossing.5 As such, the trial court erred when it granted summary judgment in 

favor of Heide and Wilkerson on the Association‟s motion for summary judgment on its 

counterclaim. We reverse the grant of summary judgment in favor of Heide and 

Wilkerson and remand with instructions for the trial court to enter summary judgment for 

the Homeowners‟ Association on its request for injunctive relief and for further 

proceedings to determine an award of damages, if any. 

Reversed and remanded with instructions. 

RILEY, J., and MAY, J., concur.

 

5

 In this case we interpret the operation and effect of a statute limiting the enactment and 

enforceability of a zoning ordinance. There is no indication in the text of the statute suggesting that the 

legislature intended a local plan commission‟s adoption of a zoning ordinance to nullify the right of 

property owners to enforce covenants in common law subdivisions. See Caesar‟s Riverboat Casino, LLC

v. Kephart, 934 N.E.2d 1120, 123 (“There is a presumption that the legislature does not intend to make 

any change in the common law beyond those declared in either express terms or by unmistakable 

implication.”) (citing South Bend Cmty. Schs. v. Widawski, 622 N.E.2d 160, 162 (Ind. 1993).