79-101 INTHE 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 etal., Respondents.

ORIGINAL PROCEEDING: Counsel

### of Record: For Relators: Richard Ganulinand WilliamHutchison, Montana Legal

Services, GreatFalls, Montana Catherine Swift, S.R.S., Helena, Montana For Respondents: Jardine, Stephenson, Blewett and 

### Weaver, GreatFalls,

Montana For Amicus Curiae: James Reynolds, Helena, Montana

Submitted: 

### January 25, 1980 Decided: 

## JAN

## 28 

## 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. Itwas 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 currentplacement. 

### 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 werealso toattend the Great Fallspublic schools inthe day

### time.The landowners who arerespondents herein objected both tothe use of the home asa group home for the developmentally disabled and toa group of unrelated individuals residing in one house inthe Subdivision. Their objections 

### were premised

on the Subdivision's protective covenants. In their petition, the relators noted that they had already incurred substantial costs inpurchasing the property and paying for 

### itsupkeep and monthly financing. Relators also alleged that they stand tolose 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 themovement of five children to the home, but 

### it has alsoprevented the movement of children ina 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

astoany specific damages that they might suffer if the home 

### wereused asa group home. They relyentirelyupon the protective covenants of their deeds that statethat the homes inthe area shallbe composed of "one unit single family dwellings. I' We find thatthe DistrictCourt improperly issued an injunction - pendente liteon the basis of Montana's constitution, statutes, and caselaw. Montana's 1972 Constitutionprovides: "The legislature shallprovide such economic assistance and social and 

### re-

### habilitative services asmay 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 developmentallydisabled 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: "Definitionof community home 

### -- limitation on number of residents. A community home for the developmentallydisabled 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 departmentof social and rehabilitation services may grantwritten approval for more than eight but notmore than twelve persons." Section 53-20-302,MCA. Anticipating local opposition to the implementation of these statutes, the legislatureamended Montana's laws relating to zoning by mandating that all community homes be permitted use in residential neighborhoods, including neighborhoodszoned for singlefamily 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 inallresidential zones, including but not limited toresidential zones for single-family dwellings." This Court inStateex rel. Thelen v. Missoula (1975), 168Mont. 375, 543 P.2d 173 interpreted the above-cited sections topermit the operation of conforming group homes inresidential areas inMontana. There 

### we noted: "Montana's legislature having determined that the constitutional rights of the developmentallydisabled to live and develop within our community structure asa family unit, rather than that they be segregated inisolated institutions, isparamount to the zoning regulationsof any city it becomes our duty to recognize and implement such legislative action. 

# ".

. .the Montana legislature adopted a new policy asapplied to the developmentally disabled inan effort to implement a new constitutionalmandate, and in sodoing it was furthering a permissible stateobjective." Thelen, supra, 168Mont. 382-383, 543 P.2d at 177-178. Thelen dealtwith zoning restrictions rather than with restrictive covenants. Werecognize that there 

### is authority for the statement that zoning ordinances cannot destroy, 

### impair, abrogate orenlarge 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 ina community environment, and the strong legislative policy supporting the same (seethe statement of purpose in the legislation authorizing community level homes, section 53-20-301, MCA), would overcome a conflicting restrictive covenant ina 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 inconformity with the spirit, intent and language of the

### restrictive covenant. Moreover, restrictive covenants are tobe strictlyconstrued; ambiguities therein are tobe construed to allow freeuse of theproperty. Courts should not construe the intent of the restrictive covenant when adopted sobroadly

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 asa single housekeeping unit, and toalloutside appearances is a usual, stableand permanent family unit. City of White Plains v. Ferraioli (1974), 313 N.E.2d 756, 758, 357 N.Y.S.2d 449, 452. Nothing inthe language of the restrictive covenant here requires a construction that the "family" should be a biologically single unit. Accordingly, 

### we hold theuse allowed here 

### isone within the ambit and intentof the restrictive covenant. IT IS THEREFORE ORDERED that the injunctionpendente liteissued by the District Court inthis cause be quashed and that the complaint filed inthematter entitledFishbough, etal. v. Region I1 Child Family Services, etal., no. BVD79-944, filedOctober 31, 1979, inthe DistrictCourt of the Eighth Judicial Districtbe dismissed on the basis of constitutional, statutory and case authority of this State.We concur:

r Chief Justice