River Heights Associates Limited Partnership, v. Batten

591 S.E.2d 683 (2004)


Batten (Ps) and other owners of lots in a Subdivision sought a declaration favoring the enforceability of restrictive covenants prohibiting commercial use of four unimproved lots in the same subdivision. River (Ds) and others owned the lots in question. The subdivision is located on the eastern side of U.S. Route 29 between the northern city limits of Charlottesville and the Rivanna River. The four lots are the only lots with frontage on U.S. Route 29. The covenants were established in a deed dated May 6, 1959, from Norman Kelsey and wife to Charles W. Hurt (the Kelsey-Hurt deed), which conveyed an unsubdivided 40-acre portion of 'the land known as 'Carrsbrook.' ' The conveyance was made subject to 'certain restrictions . . . which shall be considered as covenants running with the land.' Only one of the restrictions is pertinent here: 'The property is to be used for residential purposes only, and no rooming house, boarding house, tourist home, or any other type of commercial enterprise, or any church, hospital, asylum, or charitable institution shall be operated thereon.' Section C was subdivided into 19 lots; all made 'subject to the restrictive covenants applicable to Carrsbrook Subdivision of record.' In 1962, Lot 2, Section C, was resubdivided into four lots. In 1969, Albemarle County adopted its first comprehensive zoning ordinance. The lots in question were zoned to a depth of 200 feet from Route 29 in a B-1 classification, a commercial district in which residential use is prohibited. This zoning classification was continued in a comprehensive rezoning in 1980, with the result that presently the lots in question are zoned for commercial use but are subject to the restrictive covenant prohibiting such use. In 1969, Route 29 was a two-lane road with residences and small businesses located on each side of the road. Today Route 29 is an eight- to ten lane road that is highly developed commercially on both sides with shopping centers, hotels, restaurants, automobile dealerships, and other types of businesses. No residential uses have been implemented along Route 29 since 1959. There have been no changes within the Carrsbrook Subdivision other than the aging of homes and the maturing of trees. The trial court held that the restrictive covenant against commercial use did apply to the four lots in question and that the covenant was enforceable and issued an injunction. Ds appealed. In part, D contends that 'the trial court erred in failing to remove the residential restrictive covenant in light of the overwhelming evidence that established a change of conditions so radical as practically to destroy the essential objects and purposes of the restriction.' The contention is that the previous two-lane road with residences and small businesses strung along each side has now become a heavily traveled eight- to ten-lane thoroughfare lined on each side with shopping centers, hotels, restaurants, automobile dealerships, and other types of businesses. 'No residential houses have been built or used from the city limits of Charlottesville to the South Rivanna River on either the east or west side of Route 29 in the last thirty years.'