No hard and fast rule can be laid down as to when changed conditions have defeated the purpose of restrictions, but it can be safely asserted the changes must be so radical as practically to destroy the essential objects and purposes of the agreement.
The case involved four lots subject to restrictive covenants established in a deed. Among other restrictions, the property was to be used for residential purposes only. Part of it was soon subdivided, and later resubdivided, into four lots. A few years later, the county adopted a comprehensive zoning ordinance; the eventual result of it was that the four lots were zoned for commercial use but were subject to the restrictive covenant prohibiting such use. About the same time, the subdivision was created. Over the years, the area of the main highway route that ran next to the subdivision became highly-developed commercially. However, the subdivision itself hardly changed at all. One of the lot owners wanted to build an office complex on the lots. Plaintiff objecting lot owners sought a declaratory judgment that the restrictive covenants prohibited such construction. The trial court agreed with the objecting lot owners.
Is the restrictive covenant over the lots nullified when they were zoned for commercial use?
The state supreme court found the objecting lot owners were entitled to bring a declaratory judgment action since an actual case or controversy existed, the restrictive covenants were enforceable, and the area had not so radically changed that the purpose of the covenants was destroyed. What is required, therefore, is a leveling exercise in which fair consideration is given both to conditions in the subdivision and hose in the surrounding area. Here, the facts are that there have been no changes within Carrsbrook Subdivision other than the aging of homes and the maturing of trees but there have been substantial changes within the surrounding area. After giving fair consideration to both situations, we are of opinion the changes are not so radical as to defeat the purpose of the covenant.