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Homeowners' association can enforce ban on child day care

February 7, 2012

The Indiana Court of Appeals reversed the decision that would allow two homeowners to run a child care operation out of their residences. The homeowners’ association has restrictive covenants in place prohibiting the operation of a child care home.

In Benjamin Crossing Homeowners' Association, Inc. v. Rose Heide and David F. Wilkerson, No. 79A04-1103-PL-185, Rose Heide and David Wilkerson, residents of Benjamin Crossing, sought damages and a declaratory judgment that the Tippecanoe Area Building Commission and the Benjamin Crossing Homeowners’ Association couldn’t enforce a restrictive covenant preventing the operation of a child care home in their residence. 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 trial court ruled in favor of the homeowners, but the Court of Appeals reversed. It found 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 planned unit development ordinance.

The planned unit development ordinance has no effect on the homeowners’ association’s authority to enforce the private restrictive covenants at issue, wrote Judge Edward Najam.

“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,” he wrote. “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.”

 

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