Southwind Homeowners Assn. v. Burden

We note in this regard that although a commitment decision is
initially made by the Board, SOCA provides for judicial review
of the Board’s treatment orders. See § 71-1214. Therefore,
SOCA provides those subject to a commitment order the
opportunity to present legal arguments to a court. We conclude
that the district court did not err when it rejected S.J.’s due
process challenge.
CONCLUSION
We first note that, as determined above, the materials con-
tained in the supplemental transcript were not considered by
the Board in making its commitment decision nor properly
considered as evidence in the district court on appeal; we
therefore did not consider such materials in our review of the
district court’s decision. We conclude that the record before the
Board and properly before the district court contained clear and
convincing evidence to support the findings of the Board as
affirmed by the district court that S.J. was substantially unable
to control his criminal behavior and that inpatient treatment
was the least restrictive alternative. We reject S.J.’s due process
challenges to the proceedings before the Board under SOCA.
We therefore affirm the judgment of the district court which
affirmed the Board’s commitment order.
A ffirmed.
Wright, J., not participating.
SouthWind homeoWnerS ASSociAtion, A corporAtion,
Appellee , v. dAvid Burden And WilAi Burden,
huSBAnd And Wife , AppellAntS.
810 N.W.2d 714
Filed March 16, 2012. 	No. S-11-373.
1. Summary Judgment. Summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing show that there is no genuine issue as to any
material facts or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
2. Restrictive Covenants: Intent. Restrictive covenants are to be construed so
as to give effect to the intentions of the parties at the time they agreed to
the covenants.
522 	283 NeBRASkA RepORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:43 AM CST

3. Restrictive Covenants. If the language of a restrictive covenant is unambiguous,
the covenant shall be enforced according to its plain language, and the covenant
shall not be subject to rules of interpretation or construction.
4. ____. Restrictive covenants are not favored in the law and, if ambiguous,
should be construed in a manner which allows the maximum unrestricted use of
the property.
5. Restrictive Covenants: Injunction: Proof. Where there has been a breach of a
restrictive covenant, it is not necessary to prove that the injury will be irreparable
in order to obtain injunctive relief.
6. Restrictive Covenants. Nebraska has consistently enforced restrictive covenants
so long as they are unambiguous.
Appeal from the District Court for Sarpy County: mAx
K elch, Judge. Affirmed.
Marion F. pruss for appellants.
Larry 	R. 	Forman, 	of 	Hillman, 	Forman, 	Childers 	&
McCormack, for appellee.
heAvicAn, c.J., Wright, connolly, StephAn, and miller-
lermAn, JJ.
heAvicAn, c.J.
INTRODUCTION
David Burden and Wilai Burden provide childcare services
in their home in Sarpy County, Nebraska. The Southwind
Homeowners Association filed suit against the Burdens, alleg-
ing that the childcare services as provided violated several
restrictive covenants applicable to the premises and asking that
the Burdens be enjoined from providing those services. The
district court found that the childcare services were in violation
of several restrictive covenants and granted an injunction. The
Burdens appeal. We affirm.
FACTUAL BACkGROUND
The facts of this case are largely undisputed. The Burdens
purchased 	the 	property 	in 	question, 	located 	in 	La Vista,
Nebraska, on November 30, 2007. At the time of the purchase,
a certified copy of various covenants, conditions, restrictions,
and easements of the Southwind development was on file with
the Sarpy County register of deeds. There is no dispute that
the Burdens were given at least constructive notice of these
SOUTHWIND HOMeOWNeRS ASSN. v. BURDeN 	523
Cite as 283 Neb. 522

covenants. Moreover, the Burdens do not contend that they had
no notice of the covenants.
As relevant, the covenants limit the use of the subject prem-
ises as follows:
1. each lot shall be used exclusively for single-family
residential purposes . . . .
. . . .
5. . . . No business activities of any kind whatsoever
shall be conducted on any Lot including home occu-
pations as defined in the Zoning Code of the City of
LaVista, Nebraska . . . .
6. No obnoxious or offensive activity shall be carried on
upon any Lot, nor shall anything be done thereon which
may be, or may become, an annoyance or nuisance to the
neighborhood, including, but not limited to, odors, dust,
glare, sound, lighting, smoke, vibration, and radiation.
Apparently, since shortly after they purchased the residence,
the Burdens have provided daytime childcare to between four
and six children, ages 6 months to 10 years, Mondays through
Saturdays from 6 a.m. to 6 p.m. Two of the children for whom
they provide care are related to them. The Burdens charge a
fee to provide this care. In 2008, the Burdens had a net income
from childcare services of $2,625, and in 2009, the net income
was $45. In 2010, the Burdens apparently earned less than
$1,000. Wilai is licensed through the State of Nebraska to care
for up to eight children full time and another two children
part time.1
Written notice was given to the Burdens on July 7, 2008,
informing them that the use of the property as a daycare
was in violation of the covenants. The Burdens continued to
provide childcare services, and the Southwind Homeowners
Association brought suit on September 17, 2010, asking that
the court find the Burdens in violation of the covenants and
enter an order enjoining the Burdens from continuing to oper-
ate the daycare.
On 	February 	3, 	2011, 	the 	Southwind 	Homeowners
Association filed a motion for summary judgment. Following
1 See Neb. Rev. Stat. § 43-2609 (Reissue 2008).
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a hearing on March 25, that motion was granted on March 30.
In granting the motion, the district court noted the language
of the covenant prohibiting “‘business activities of any kind.’”
The district court also rejected the Burdens’ argument that they
were authorized to provide childcare services on the premises
by the Quality Child Care Act.2 The Burdens appeal.
ASSIGNMeNT OF eRROR
The Burdens assign that the district court erred in granting
the Southwind Homeowners Association’s motion for sum-
mary judgment.
STANDARD OF ReVIeW
[1] Summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing show that there is no gen-
uine issue as to any material facts or as to the ultimate infer-
ences that may be drawn from those facts and that the moving
party is entitled to judgment as a matter of law.3
ANALYSIS
The issue presented by this case is whether the Burdens’
conduct of providing childcare under these facts violated the
restrictive covenants on their property.
[2-5] Restrictive covenants are to be construed so as to give
effect to the intentions of the parties at the time they agreed
to the covenants.4 If the language is unambiguous, the cov-
enant shall be enforced according to its plain language, and
the covenant shall not be subject to rules of interpretation or
construction.5 However, restrictive covenants are not favored
in the law and, if ambiguous, should be construed in a manner
which allows the maximum unrestricted use of the property.6
Where there has been a breach of a restrictive covenant, it is
2 Neb. Rev. Stat. §§ 43-2601 to 43-2625 (Reissue 2008).
3 Village of Hallam v. L.G. Barcus & Sons, 281 Neb. 516, 798 N.W.2d 109
(2011).
4 Lake Arrowhead, Inc. v. Jolliffe, 263 Neb. 354, 639 N.W.2d 905 (2002).
5 See Boyles v. Hausmann, 246 Neb. 181, 517 N.W.2d 610 (1994).
6 See, Knudtson v. Trainor, 216 Neb. 653, 345 N.W.2d 4 (1984); Ross v.
Newman, 206 Neb. 42, 291 N.W.2d 228 (1980).
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Cite as 283 Neb. 522

not necessary to prove that the injury will be irreparable in
order to obtain injunctive relief.7
While this court has not been presented with the issue of
whether a home daycare is a violation of these types of restric-
tive covenants, this issue has been litigated in other jurisdic-
tions.8 The prevailing weight of that authority suggests that the
operation of a daycare is a violation of restrictive covenants
allowing only single-family or residential use and/or prohibit-
ing the operation of a trade or business.9
For example, in Terrien v. Zwit,10 a Michigan Supreme Court
case, the applicable covenants prohibited any use other than for
“‘residential purposes’” and further stated that “‘[n]o part . . .
shall be used for any commercial, industrial, or business enter-
prises.’” The court held that the daycare in question violated
these prohibitions.11 The court also rejected the defendants’
contention that the operation of a family home daycare was a
“‘favored use’” and that thus, a covenant restricting that activ-
ity was in violation of public policy.12 In rejecting this argu-
ment, the court noted that assuming the operation of a daycare
was part of Michigan’s public policy, also part of public policy
was a property holder’s right to improve his or her property,
7 Breeling v. Churchill, 228 Neb. 596, 423 N.W.2d 469 (1988).
8 See Annot., 81 A.L.R.5th 345 (2000).
9 Williams v. Tsiarkezos, 272 A.2d 722 (Del. Ch. 1970); Chambers v.
Gallaher, 257 Ga. 795, 364 S.e.2d 576 (1988); Lewis-Levett v. Day,
875 N.e.2d 293 (Ind. App. 2007); Berry v. Hemlepp, 460 S.W.2d 352
(ky. App. 1970); Woodvale Condominium Trust v. Scheff, 27 Mass. App.
530, 540 N.e.2d 206 (1989); Terrien v. Zwit, 467 Mich. 56, 648 N.W.2d
602 (2002); Ginsberg v. Yeshiva of Far Rockaway, 74 Misc. 2d 391, 344
N.Y.S.2d 602 (1973); Walton v. Carignan, 103 N.C. App. 364, 407 S.e.2d
241 (1991); Hill v. Lindner, 769 N.W.2d 427 (N.D. 2009); Martellini
v. Little Angels Day Care, Inc., 847 A.2d 838 (R.I. 2004); Metzner v.
Wojdyla, 125 Wash. 2d 445, 886 p.2d 154 (1994). But see, Shoaf v. Bland,
208 Ga. 709, 69 S.e.2d 258 (1952); Stewart v. Jackson, 635 N.e.2d 186
(Ind. App. 1994); Beverly Island Ass’n v Zinger, 113 Mich. App. 322, 317
N.W.2d 611 (1982).
10 Terrien v. Zwit, supra note 9, 467 Mich. at 60, 648 N.W.2d at 605.
11 Terrien v. Zwit, supra note 9.
12 Id. at 69, 648 N.W.2d at 609.
526 	283 NeBRASkA RepORTS

including the adoption of covenants which would enhance the
value of that property.13 The court stated that there were no
“‘definite indications’” in Michigan law of any public policy
against such a covenant.14
Other courts have also held that daycare facilities violated
covenants similar to the ones at issue in this case.15 The Rhode
Island Supreme Court, in Martellini v. Little Angels Day Care,
Inc.,16 held that a covenant limiting the use of the property to
“‘single family private residence purposes’” was violated by
the operation of a daycare. In that case, the court distinguished
an earlier case, which held that allowing a group home was not
a violation of a similar covenant. The court noted that while
residents of the group home were not a traditional family unit,
the residents would operate as such, as distinguished from a
daycare, which would be composed of several occupants that
did not reside there or engage in the traditional family activities
outside of the hours when they paid for care.17 The court also
rejected the defendant’s public policy argument.18
The Burdens direct us to this court’s decision in Knudtson
v. Trainor19 and contend that that decision supports their posi-
tion. We disagree. We held in Knudtson that the operation of
a group home did not violate a covenant restricting the use of
property to only a residential purpose. We read the term “resi-
dential” as meaning where people reside or dwell and distin-
guished it from use for commercial or business purposes. We
noted that the home in question would continue to look like a
13 Terrien v. Zwit, supra note 9.
14 Id. at 72, 648 N.W.2d at 611.
15 See Martellini v. Little Angels Day Care, Inc., supra note 9. See, also,
Williams v. Tsiarkezos, supra note 9; Chambers v. Gallaher, supra note
9; Lewis-Levett v. Day, supra note 9; Berry v. Hemlepp, supra note 9;
Woodvale Condominium Trust v. Scheff, supra note 9; Ginsberg v. Yeshiva
of Far Rockaway, supra note 9; Walton v. Carignan, supra note 9; Hill v.
Lindner, supra note 9; Metzner v. Wojdyla, supra note 9.
16 Martellini v. Little Angels Day Care, Inc., supra note 9, 847 A.2d at 841.
17 Martellini v. Little Angels Day Care, Inc., supra note 9.
18 Id.
19 Knudtson v. Trainor, supra note 6.
SOUTHWIND HOMeOWNeRS ASSN. v. BURDeN 	527
Cite as 283 Neb. 522

single-family home and that people would continue to reside in
it; thus, the use was in compliance with the covenant.
While it is true that the Burdens’ home will continue to be a
single-family residence, look like one, and have a family (the
Burdens) living in it, the character of the home, for at least part
of the day, will be different from any other single-family home.
At least 5 days a week between the hours of 6 a.m. and 6 p.m.,
five children will become temporary residents. The amount
of traffic will increase at child dropoff and pickup times and,
to a lesser extent, between those times. This is compared to
the group home in Knudtson, where the residence might not
be used to house a traditional family, but nevertheless those
residents will live together much in the same way that a tra-
ditional family would. We also note that in Knudtson, the
only covenant at issue was one limiting the use to residential
purposes, and not one explicitly prohibiting business or com-
mercial activities.
The covenants in this case require that the property be used
for a single-family dwelling only and expressly prohibit the
operation of a business on the property. Where unambiguous,
the terms of a restrictive covenant should be enforced by their
terms. These terms are unambiguous; moreover, our conclusion
is supported by the greater weight of case law. And no matter
how the Burdens characterize the operation, the couple is run-
ning a daycare for profit (no matter how little profit it might
generate) at their home. We conclude that this is a business
purpose, which is prohibited by the covenants.
Because the terms are unambiguous and must therefore be
enforced, the Burdens’ arguments that the residential nature of
the neighborhood is not impaired by their daycare are unavail-
ing. The Southwind Homeowners Association need not prove
irreparable damage in order to obtain an injunction and in turn
enforce their covenants.20
Finally, the Burdens’ argument that public policy would
prohibit the enforcement of these covenants is also unpersua-
sive. It is true that the Legislature has adopted legislation with
respect to family home daycares like the one operated by the
20 See Breeling v. Churchill, supra note 7.
528 	283 NeBRASkA RepORTS

Burdens,21 including § 43-2616, which permits the establish-
ment of a family home daycare in any “residential zone within
the exercised zoning jurisdiction of any city or village.”
But as the Burdens acknowledge, while the Quality Child
Care Act “established a public policy in favor of permitting”
family home daycares, § 43-2616 “does not specifically ban
the enforcement of restrictive covenants prohibiting the estab-
lishment” of family home daycares.22 Thus, it would appear,
as in Terrien, that there are no “‘definite indications’” that
covenants which would prohibit the operation of family home
daycares would be against that public policy.23
[6] Moreover, as is noted above, Nebraska has consistently
enforced restrictive covenants so long as they are unambigu-
ous.24 And we have recognized a strong policy favoring the
freedom to contract, which is really what a covenant is: “‘“It is
not the province of courts to emasculate the liberty of contract
by enabling parties to escape their contractual obligations on
the pretext of public policy unless the preservation of the pub-
lic welfare imperatively so demands.”’”25
We note that in their amended answer and in response to
one interrogatory, and again at oral argument, the Burdens
assert that the Southwind Homeowners Association selectively
enforces the restrictive covenants at issue. There is no evidence
in the record to support that assertion; we therefore find that
contention to be without merit.
Turning then to the ultimate question, whether summary
judgment was appropriate, we conclude that it was. The
Burdens argue that there remain several genuine issues of
material fact—namely, whether what they are really running
is a business. But while the Burdens maintain these are issues
of fact, they are really issues of law—whether the Burdens’
21 See §§ 43-2601 to 43-2625.
22 Brief for appellants at 15.
23 See Terrien v. Zwit, supra note 9, 467 Mich. at 72, 648 N.W.2d at 611.
24 Boyles v. Hausmann, supra note 5.
25 Parkert v. Lindquist, 269 Neb. 394, 397, 693 N.W.2d 529, 532 (2005)
(quoting Occidental Sav. & Loan Assn. v. Venco Partnership, 206 Neb.
469, 293 N.W.2d 843 (1980)).
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undisputed activities on the property violate the covenants.
Having concluded that the Burdens’ activities are a violation,
summary judgment was appropriate.
CONCLUSION
The decision of the district court is affirmed.
A ffirmed.
mccormAcK, J., not participating.
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