Request By:
Douglas Gene Sharp, Esq.
Suite 100, 730 West Market Street
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter presenting the following question:
"Can the board of trustees of a sixth class city enact an ordinance in the interest of the public health, safety and welfare which requires builders in the city to submit their plans for building and have them approved when said ordinance sets forth as standards for approval a minimum floor space requirement which exceeds that put to record in a deed of restrictions?"
At the outset we direct your attention to
Robertson v. Western Baptist Hospital, Ky., 267 S.W.2d 395 (1954) where the Court said that each case involving restrictions on the use of property must be decided on its merits - on the particular terms of the instrument and the facts of the case. Since our information concerning your particular situation is rather limited, we will attempt to set forth the applicable rules and principles which you can then apply to the specific fact situation with which you are concerned, including the exact provisions of the legal instrument involved.
In
Hayes v. Marshall, Ky., 501 S.W.2d 269 (1973), the Court said that in construing a restrictive covenant it invokes the rule in this jurisdiction that building restrictions are to be regarded more as a protection to the property owner and the public than as a restriction on the use of property. The restrictive covenant, therefore, will not be strictly construed but if the language is so ambiguous that its meaning cannot reasonably be ascertained, the Court will not undertake to create a restrictive meaning. See also
Brandon v. Price, Ky., 314 S.W.2d 521 (1958);
Macy v. Wormald, Ky., 329 S.W.2d 212 (1959), and
Dorsey v. Fishermen's Wharf Realty Co., 306 Ky. 445, 207 S.W.2d 565, 567 (1948), where the Court said in part as follows:
". . . As a general proposition it may be said that, when building restrictions first came into use, they were looked upon as restrictions against the individual owner of property and were scrutinized carefully to avoid the untrammeled use of real property. In recent years, however, they have come into rather general use in metropolitan areas and are looked upon more in the nature of a protection to the property owner and the public rather than a restriction as to the use of property. Zoning ordinances have followed in logical sequence."
In
Ladd v. Pittsburgh Consolidation Coal Co., 309 Ky. 405, 217 S.W.2d 807 (1949), the Court said that the test of whether a restrictive covenant is reasonable is whether the restraint, considering the situation and circumstances, is such as to only afford a fair protection to the legitimate interests of the parties in favor of whom it is given and not so extensive as to interfere with the interest of the public. To refuse the enforcement of a restrictive covenant on the ground that the public interest demanded its noneforcement would, however, require a clear and convincing showing of the necessity for protection of the public interest in the particular case. See
LaVielle v. Seay, Ky., 412 S.W.2d 587, 593 (1967).
Kentucky, along with a majority of jurisdictions, is committed to the view that restrictive covenants constitute property rights which run with the land.
McFarland v. Hanley, Ky., 258 S.W.2d 3 (1953). A zoning ordinance does not relieve land from lawful covenants of restrictions of use contained in deeds embracing a given area, as such an ordinance cannot affect or impair the contractual obligation granted by such restriction.
City of Richlawn v. McMakin, 313 Ky. 265, 230 S.W.2d 902 (1950). A fundamental change in the character of the property in the restricted area because of municipal expansion, spread of industry and other causes, can result in the nonenforcement of restrictive covenants. However, before a change of conditions will result in the annulment of a restrictive covenant, it must be a change of such character that clearly neutralizes the benefits of the restriction to such an extent as to defeat the purpose of the covenant.
Anness v. Freeman, Ky., 294 S.W.2d 77 (1956).
In 20 Am.Jur.2d Covenants, Conditions, Etc., § 277 (Effect of zoning laws or other legislation), the following appears:
"Restrictive covenants do not supersede or in any way affect the requirements of an already existing zoning ordinance. If the restrictive covenant is less restrictive than the ordinance, the ordinance prevails, and if the restrictive covenant is more restrictive than the ordinance, the covenant prevails as to purchasers; but in either case the ordinance is enforceable as enacted. Conversely, a zoning ordinance cannot destroy, impair, abrogate, or enlarge the force and effect of an existing restrictive covenant; that is, a valid restriction upon the use of property is not terminated, superseded, or nullified by the enactment of a zoning ordinance, nor is the validity of the restriction thereby affected. . . ."
Thus, in conclusion, assuming that a valid building restriction concerning a particular piece of property is now in existence and was in existence prior to the adoption of the city's building ordinance, and further assuming that the restriction in the deed is reasonable under the circumstances and that a fundamental change in the character of the restricted property has not occurred, the city's building ordinance cannot terminate, supersede or nullify the provisions of the restrictive covenant.