KEY v. McCABE (1960)

This is an action wherein plaintiffs, appellants herein, seek to enjoin defendants, respondents herein, from constructing a commercial building on Lot 1 of Tract 1056 in Orange County. The trial court rendered judgment for defendants, and plaintiffs appeal.

The record before us shows that plaintiffs (twenty in number) are the owners of various lots located in Tract 1056 in Orange County, which tract consists of twenty-four lots. Defendants are the owners of Lot 1 in said tract, located on the southeasterly corner of Las Palmas Drive and Fullerton Road. Said Lot 1 measures 324.50 feet along Fullerton Road and 219.44 feet along Las Palmas Drive. Fullerton Road, at the time the restrictions, hereinafter referred to, were imposed on the lots in said tract in 1940, was and still is a part of U.S. Highway 101. In 1940 all the lots now in said tract 1056, together with other contiguous property, were subjected, according to a general plan of record, to building restrictions which, among other things, confined the use of the property to residential, agricultural or horticultural purposes. All of the lots in the tract, excepting said Lot 1 and two others, are improved to single family residences. In 1952 five acres located in the extreme northwesterly portion of the property subject to building restrictions, was released from the restrictions, with the written consent of the majority of the acreage owners. Defendants acquired title with notice and knowledge of the existence of said building restrictions.

In 1957 the city of La Habra, by annexation proceedings, extended its boundaries to the south along Fullerton Road to include said Lot 1. The annexed territory may be said to have the somewhat peculiar appearance of an inverted wine bottle with the property of defendants as a slightly enlarged and distended cork. The reason for this peculiar protrusion into adjacent unincorporated territory is not shown by the record. In 1958 the city of La Habra zoned said annexed property as ‘C–2 Commercial Zone’ and ‘R–3 Limited Multiple-Family Dwelling Zone’. Thereafter, also in 1958, defendants obtained a permit from the city of La Habra to construct a commercial building on the southerly 250 feet of said Lot 1. The validity of the original restrictions and the right of plaintiffs to maintain this action (if said restrictions still remain valid) and not the subject of dispute in this action.

The general area is described by one witness in the following language:

‘The land is such located that it is in a highly residential neighborhood, covering over a thousand acres of prime residential property.

‘Across the street adjacent to, and on each side of, this property, is valuable property for residential uses. Nevil Robinson has just completed, or is in the stage of completing, a house in the neighborhood of $30,000.00. This property can be used for a good estate sized home. * * *.

‘Adjacent to me (witness' home is six or seven houses away on Las Palmas) there is homes from $75,000.00 to $100,000.00. The street is one of the most beautiful streets in Fullerton, with the large palm trees and highly residential use set our for this.

‘The curvature of the highway approaching this is hazardous, and that is the reason they want to widen the street and put in a divider strip, to make it more safe for the traffic that is there now.

‘If it was used for any other purpose other than residential, it would be suicide corner. The noise on that particular spot is no greater than it is further on down toward Fullerton, which is only three miles to the heart of Fullerton.’

Those portions of the above quoted testimony which consist of physical description and statement of fact, are nowhere contradicted, although some of defendants' witnesses do contradict the opinion phase which relates to residential desirability. Topographic undulations segregate this area from the nearest business area, which is approximately one-half mile away.

Section 11.01 of the La Habra zoning ordinance, covering uses permitted in ‘C–2 Commercial Zone’ include, inter alia, service stations, bakeries, cleaning shops, department stores, garages, hotels, plumbing shops, restaurants, theatres, and used car sales.

Traffic on Fullerton Road has increased greatly since 1940. The state proposes to widen Fullerton Road in this area to 84 feet to accommodate a 4-lane divided roadway. A traffic signal at the intersection of Las Palmas Drive and Fullerton Road is proposed, but the evidence does not show whether any official action has been taken toward its installation. The evidence was conflicting with respect to the effect upon traffic of commercial use at this corner, some witnesses claiming (with apparently good reasoning) that traffic difficulties would be greatly enhanced by commercial use. Evidence was also conflicting as to whether or not property values for residential purposes would be detrimentally affected by permitting Lot 1 to be used for commercial purposes.

Defendants contend that by reason of changed conditions since the restrictions were imposed they are not enforceable by a court of equity so far as they relate to defendants' said lot. Defendants support this contention by testimony that traffic noise has substantially increased; that there is a proposed construction of a 4-lane divided highway with shoulders and traffic light; testimony of expert and lay witnesses that defendants' property is not suitable for single family dwellings; that the restrictions terminate in any event June 1, 1969; testimony that defendants' proposed improvement would actually benefit the surrounding area; inspection of the area by the trial court; that some of the property (apparently referring to five acres in the extreme northwesterly portion) in the tract was voluntarily released from restriction; that lot sizes have been reduced in some portions of the restricted area; that set-back and building requirements have been violated; that lots have been split; and that this property along with other nearby property on the highway has been zoned commercial by the city of La Habra.

A close examination of all the testimony, however, reveals that all of the testimony respecting any changes that have taken place since 1940 within this area, is entirely and completely based on increased traffic on Fullerton Road. Without any conflict whatever, the evidence shows that there have been no commercial instrusions into any of this area on either side of Fullerton Road. Whether the trial judge visited the area for a personal inspection is not shown by the record. There is no statement from the trial judge that he did so visit the area, although there was a suggestion from him that he might do so. From the record we must conclude that he did not.

The court's findings do not note nor indicate that any changes have taken place other than those hereinbefore referred to. The law with respect to changed conditions which will justify a court of equity in refusing to enforce restrictions to residential purposes is fairly uniform throughout the United States, and California follows the general rule. The fact that a particular tract has been rezoned by a city or county ordinance, does not of itself affect the validity of a residential restriction. As was said in Wilkman v. Banks, 124 Cal.App.2d 451, 455 [2], 269 P.2d 33, 35;

‘The fact that the City of Los Angeles had rezoned tract 9854 to allow the construction of hospitals and sanitariums therein is not authority to violate the restrictive covenants. An act of sovereignty with respect to lands already restricted by a general plan against specified uses confers no authority to violate the existing restrictive covenants as to use. One is a legislative enactment for the general good, authorized by the police power and confers a merely permissive right; the other is a contract of individuals made for their own enjoyment, is protected by the federal constitution, Art. I, sec. 10, and in no sense interferes with a zoning ordinance.’

To the same effect see Hirsch v. Hancock, 173 Cal.App.2d 745, 343 P.2d 959, and Rice v. Heggy, 158 Cal.App.2d 89, 92 [2], 322 P.2d 53. Some examples of the application of this same rule in other parts of the United States are found in Ludgate v. Somerville, 121 Or. 643, 256 P. 1043, 54 A.L.R. 837; Morton v. Sayles, Tex.Civ.App., 304 S.W.2d 759; Hackett v. Steele, 201 Tenn. 120, 297 S.W.2d 63; Cooper v. Kovan, 349 Mich. 520, 84 N.W.2d 859.

Even if it should appear that the enforcement of the restriction might work a financial hardship on the person seeking to break the restriction or that the unrestricted use would render it more valuable or profitable will not deter a court of equity from enforcement of a restriction. Strong v. Hancock, 201 Cal. 530, 539, 258 P. 60; Marra v. Aetna Construction Co., 15 Cal.2d 375, 378 [4], 101 P.2d 490; Robertson v. Nichols, 92 Cal.App.2d 201, 208 [8], 206 P.2d 898; Fairchild v. Raines, 24 Cal.2d 818, 827, 151 P.2d 260; Strong v. Shatto, 45 Cal.App. 29, 37, 187 P. 159. Examples of the same rule from other parts of the United States are to be found in Rombauer v. Compton Heights Christian Church, 328 Mo. 1, 40 S.W.2d 545; Cuneo v. Chicago Title & Trust Co., 337 Ill. 589, 169 N.E. 760.

Increased vehicular traffic over a street adjacent to property restricted to residential uses does not destroy or abrogate the residential restriction. As was said in Strong v. Hancock, 201 Cal. 530, 548 [3], 258 P. 60, 68;

‘As to the appellant's contention that vehicular traffic and travel other than by railways along or even across Shatto place has rendered undesirable residence therein, he cites no authority to support such a theory. It is a matter of common knowledge that boulevards, avenues, and broad highways best suited for the use of vehicles usually traverse suburban areas devoted to and favored for residential uses. To hold that the several broad boulevards and avenues which lead from Los Angeles to the sea have by their increasing travel destroyed restricted residential uses of property along their route would be contrary to both reason and experience; * * *’

In O'Rourke v. Teeters, 63 Cal.App.2d 349, 352 [1], 146 P.2d 983, 985, the court said that ‘Heavy vehicular traffic over a street does not destroy restricted residential uses of adjacent property so as to abrogate residential restrictions.’

Examples of the application of the same rule in other parts of the United States are found in Bickell v. Moraio, 117 Conn. 176, 167 A. 722; Thodos v. Shirk, 278 Iowa 172, 76 N.W.2d 733; Cochran v. Long, Ky., 294 S.W.2d 503; Hemphill v. Cayce, Tex.Civ.App., 197 S.W.2d 137; Moreton v. Louis G. Palmer & Co., 230 Mich. 409, 203 N.W. 116; Wahrendorff v. Moore, Fla., 93 So.2d 720; Chuba v. Glasgow, 61 N.M. 302, 299 P.2d 774; Van Meter v. Manion, 170 Okl. 81, 38 P.2d 557; Booker v. Old Dominion Land Co., 188 Va. 143, 49 S.E.2d 314; Continental Oil Co. v. Fennemore, 38 Ariz. 277, 299 P. 132; Frick v. Foley, 102 N.J.Eq. 430, 141 A. 172.

While the rule is clear that a reversal cannot be had unless it can be shown that there is such a lack of substantial facts that the reviewing court may say as a matter of law that there is no ground upon which the trial court could have rendered its judgment and that every favorable and reasonable inference must be drawn from the facts to support the judgment (Wilkman v. Banks, supra, 124 Cal.App.2d 457 [6–7], 269 P.2d 33), nevertheless we are forced to the conclusion from a review of all of the record before us that the evidence will not support the court's finding that conditions have so changed since the original imposition of the residential building restrictions as to make those restrictions no longer enforceable. The complete lack of any commercial encroachment within the area affected, its topographic isolation, and its uniform use for residential purposes, render completely nugatory the mere increase of traffic on Fullerton Road in considering the residential character of the neighborhood.

The judgment is reversed.

SHEPARD, Justice.

GRIFFIN, P. J., and COUGHLIN, J. concur.