Michigan Supreme Court Puts Birmingham Park "In The Doghouse"
On July 18, 2007, the Michigan Supreme Court issued its Opinion in Bloomfield Estates Improvement Association, Inc v City of Birmingham, holding a dog park to be a violation of a deed covenant restricting land use to solely residential purposes. Further, the Court held that Plaintiffs could enforce the covenant against the city even where they had watched without objection as the land had been used as a park for the past seventy years because a dog park is a "more serious violation" of the restriction.
The majority reasoned that a dog park is not a residential purpose pursuant to the language contained in the deed restriction because a dog park, unlike a fenced in back yard, is not attached to a residence and could contain an unlimited number of dogs. The majority went so far as to equate a dog park with a public kennel.
In its Opinion, the majority also concluded that a party who has failed to object to a violation of a deed restriction does not lose the right to object to a more serious violation of that restriction. Although it admitted that the determination of what is a “more serious” violation is dependent on the facts of each case, it made a conclusory determination that a dog park is a “more serious” violation of the residential purposes restriction than a regular park. In doing so the Court conducted a factual analysis appropriate for a trier of fact. Depriving the jury of its role in cases that require weighing of credibility and application of facts to law, is a dangerous trend that could inevitably serve to upset the delicate balance between the role of the jury as trier of fact and the role of the judge.
The Bloomfield Estates Opinion may have a profound impact on the enforcement of restrictive covenants and on the means in which such covenants are construed in Michigan. Although it is yet unclear how far these impacts will reach, one thing is certain: for Michigan dog lovers, finding a place for casual recreation may no longer be a walk in the park.
