Where a zoning ordinance allows a more intensive use than that contained in a restrictive covenant, the restrictive covenant controls over the ordinance.
In 1941, Appellant developer subjected the lots in a 40-acre development to covenants restricting them to single family dwellings and prohibiting business of any kind. Respondent homeowners brought an action to enjoin the appellant from constructing a shopping center on a parcel of land located within their subdivision. The district court enjoined the use of the parcel in any matter other than permitted by the enforceable restrictive covenants. The developer appealed. The court affirmed the order granting the homeowners' request to enforce the restrictive covenants and enjoin construction of a business by the developer.
Should the restrictive covenants be invalidated?
The court found substantial evidence that the restrictive covenants remained of substantial value to the homeowners and that the changes since 1941 in commercial development and traffic in the area outside the subdivision were not so great as to make it inequitable or oppressive to restrict the property to single-family residential use. The developer failed to show that the subdivision was unsuitable for residential purposes because of changed conditions or that the purpose of the restrictions had been thwarted, even if the property was more valuable for commercial purposes. The court found that the homeowners' violations of the restrictive covenants were too distant and sporadic to constitute abandonment or waiver.