No part of parcel of the above-described premises shall be used for any commercial, industrial, or business enterprises nor the storing of any equipment used in any commercial or industrial enterprise. Family day care home includes a home that gives care to an unrelated minor child for more than 4 weeks during a calendar year. The dispute in this case is whether defendants' family day care homes violate the subdivision's protective covenants. Plaintiffs sought an injunction prohibiting the continued operation of defendants' day-care facilities. In an effort to limit expenses, the parties agreed to file cross-motions for summary disposition before engaging in discovery.
Plaintiffs appeal as of right.
In Beverly Island , we rejected the plaintiff's argument that the receipt of compensation was the controlling factor in determining whether the defendants' family day care home was a business and therefore violated the residential use covenant. After considering the obtrusiveness of the activities involved in operating the family day care home and the public policy in favor of family day care homes, this Court held that the defendants use of their property to care for children in a family day care home was for residential purposes. The Court recognized that the only difference between the defendants use of their property and the use of the property by a large family was the extra traffic in the morning and the afternoon. Plaintiff argues that this Court's holding in Beverly Island does not apply to this case because their subdivision also has a protective covenant that specifically precludes commercial or business use. Although this Court did mention the lack of a specific covenant prohibiting commercial use, this was not the basis of this Court's decision in Beverly Island.