79-101 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

THE STATE OF MONTANA ex rel., 

REGION I1 CHILD AND FAMILY 

SERVICES, INC., and STATE OF 

MONTANA, et al., 

Relators, 

VS. 

THE DISTRICT COURT OF THE EIGHTH 

JUDICIAL DISTRICT et al., 

Respondents. 

ORIGINAL PROCEEDING : 

Counsel of Record: 

For Relators: 

Richard Ganulin and William Hutchison, Montana Legal 

Services, Great Falls, Montana 

Catherine Swift, S.R.S., Helena, Montana 

For Respondents: 

Jardine, Stephenson, Blewett and Weaver, Great Falls, 

Montana 

For Amicus Curiae: 

James Reynolds, Helena, Montana 

Submitted: January 25, 1980 

Decided: JAN 2 8 1989 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This petition was filed seeking a writ of supervisory 

control and other appropriate relief in a cause where the 

District Court had issued an injunction pendente lite enjoin the relators from establishing a community residential 

home for developmentally disabled children. The District 

Court held that the community home violated restrictive 

covenants limiting the use of the property to single family 

dwellings. 

This Court on December 20, 1979 ordered the parties to 

the cause to file briefs within twenty days, together with 

supporting memoranda, and stayed further proceedings pending the receipt of said briefs and memoranda. In addition, 

permission was granted for an amicus brief by the Developmental Disabilities/Montana Advocacy Program. All parties 

having filed briefs within the time specified, this Court 

accepts jurisdiction of the cause and considers the issues 

raised on briefs without oral argument. 

The relator, Region 11, purchased a home in the Sunrise 

Homes Subdivision of Great Falls, Montana. It was relator's 

intention to use the home as a residence for five developmentally 

disabled children. The children were selected for placement 

in this home on the basis of their immediate need for a less 

restrictive environment, current inappropriate placement, and 

developmental retardation due to their current placement. heir 

individual circumstances were set forth in the application 

for the writ. 

The children were to reside in the home with fulltime, 

paid houseparents and would be taught various personal 

hygiene and domestic skills in the home. The children were 
also to attend the Great Falls public schools in the daytime. 

The landowners who are respondents herein objected both 

to the use of the home as a group home for the developmentally 

disabled and to a group of unrelated individuals residing in 

one house in the Subdivision. Their objections were premised 

on the Subdivision's protective covenants. 

In their petition, the relators noted that they had 

already incurred substantial costs in purchasing the property 

and paying for its upkeep and monthly financing. Relators 

also alleged that they stand to lose income and grants which 

are dependent upon the immediate use of the home as a group 

home. 

Relators noted that the injunction not only has prevented Region 11's use of a home and the movement of five 

children to the home, but it has also prevented the movement 

of children in a more restrictive environment, such as 

Boulder River School, into the community placement which 

would be vacated by movement of the five children into the 

Subdivision group home. 

Respondent landowners have neither alleged nor testified 

as to any specific damages that they might suffer if the 

home were used as a group home. They rely entirely upon the 

protective covenants of their deeds that state that the 

homes in the area shall be composed of "one unit single 

family dwellings. I' 

We find that the District Court improperly issued an 

injunction - pendente lite on the basis of Montana's constitution, 

statutes, and caselaw. 

Montana's 1972 Constitution provides: "The legislature 

shall provide such economic assistance and social and re- 
habilitative services as may be necessary for those inhabitants who, by reason of age, infirmities, or misfortune, may 

have a need for the aid of society." Article XII, section 

Pursuant to this constitutional mandate, the Montana 

Legislature passed legislation implementing care for the 

needs of its developmentally disabled citizens at a community 

level rather than in institutions. Section 53-20-301, MCA 

provides : 

"PURPOSE. The legislature, in recognition 

of the widespread and various needs of 

developmentally disabled persons and of 

the desirability of meeting these needs on 

the community level to the fullest extent 

possible and in order to reduce the need 

for care in existing state institutions, 

establishes by this part a community developmentally disabled home program to provide 

facilities and services for training and 

treatment of the developmentally disabled 

in family-oriented residences and establishes 

a program to provide such homes through the 

local nonprofit corporations." 

To insure the residential nature of the facility, and 

to protect the residential nature of the neighborhood, the 

legislature in section 53-20-302, MCA limited the size of 

the community homes." That section provides: 

"Definition of community home -- limitation 

on number of residents. A community home 

for the developmentally disabled is a familyoriented residence or home designed to provide 

facilities for two to eight developmentally 

disabled persons, established as an alternative to existing state institutions. The 

number of developmentally disabled persons may 

not exceed eight in such a community home, except that the department of social and rehabilitation services may grant written approval 

for more than eight but not more than twelve 

persons." Section 53-20-302, MCA. 

Anticipating local opposition to the implementation of these 

statutes, the legislature amended Montana's laws relating to 

zoning by mandating that all community homes be permitted 

use in residential neighborhoods, including neighborhoods 
zoned for single family residences. Sections 76-2-313, 76- 

2-314, MCA. It should be noted that subsection 2 of 76-2- 

314 states: "The homes are a permitted use in all residential 

zones, including but not limited to residential zones for 

single-family dwellings." 

This Court in State ex rel. Thelen v. Missoula (1975), 

168 Mont. 375, 543 P.2d 173 interpreted the above-cited 

sections to permit the operation of conforming group homes 

in residential areas in Montana. There we noted: 

"Montana's legislature having determined that 

the constitutional rights of the developmentally disabled to live and develop within our 

community structure as a family unit, rather 

than that they be segregated in isolated institutions, is paramount to the zoning regulations of any city it becomes our duty to 

recognize and implement such legislative 

action. 

". . .the Montana legislature adopted a 

new policy as applied to the developmentally 

disabled in an effort to implement a new 

constitutional mandate, and in so doing it 

was furthering a permissible state objective." 

Thelen, supra, 168 Mont. 382-383, 543 P.2d 

at 177-178. 

Thelen dealt with zoning restrictions rather than with 

restrictive covenants. We recognize that there is authority 

for the statement that zoning ordinances cannot destroy, impair, abrogate or enlarge the force and effect of an existing 

restrictive covenant. 82 Arn.Jur.2d Zoning - and Planning 5 4 

(1976). It could be argued here that the force of the 

constitutional rights of developmentally disabled persons to 

live in a community environment, and the strong legislative 

policy supporting the same (see the statement of purpose in 

the legislation authorizing community level homes, section 

53-20-301, MCA), would overcome a conflicting restrictive 

covenant in a case like this. It is not necessary, however, 
for us to consider such an argument, because here we find a 

use entirely compatible with and in conformity with the 

spirit, intent and language of the restrictive covenant. 

Moreover, restrictive covenants are to be strictly construed; ambiguities therein are to be construed to allow 

free use of the property. Courts should not construe the 

intent of the restrictive covenant when adopted so broadly 

as to cover the desires of owners confronted with situations 

developing thereafter. Higdem v. Whitham (1975), 167 Mont. 

201, 209, 536 P.2d 1185, 1190. 

Here the group home, by law, is structured as a single 

housekeeping unit, and to all outside appearances is a 

usual, stable and permanent family unit. City of White 

Plains v. Ferraioli (1974), 313 N.E.2d 756, 758, 357 N.Y.S.2d 

449, 452. Nothing in the language of the restrictive covenant 

here requires a construction that the "family" should be a 

biologically single unit. Accordingly, we hold the use 

allowed here is one within the ambit and intent of the 

restrictive covenant. 

IT IS THEREFORE ORDERED that the injunction pendente 

lite issued by the District Court in this cause be quashed 

and that the complaint filed in the matter entitled Fishbough, 

et al. v. Region I1 Child Family Services, et al., no. BVD79-944, filed October 31, 1979, in the District Court of the 

Eighth Judicial District be dismissed on the basis of constitutional, statutory and case authority of this State. 
We concur: 

r 

Chief Justice