Hines Corp. v. City of Albuquerque

• Decision Date: 17 October 1980
• Docket Number: No. 12720,12720
• Citation: 95 N.M. 311,1980 NMSC 107,621 P.2d 1116
• Parties: HINES CORPORATION, a New Mexico Corporation, Plaintiff-Appellee, v. CITY OF ALBUQUERQUE, Defendant-Appellee. E. R. ALLEMAN and Doris Alleman et al., Plaintiffs-Appellees, v. HINES CORPORATION et al., Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 1116

621 P.2d 1116

95 N.M. 311

HINES CORPORATION, a New Mexico Corporation, Plaintiff-Appellee, v. CITY OF ALBUQUERQUE, Defendant-Appellee.

E. R. ALLEMAN and Doris Alleman et al., Plaintiffs-Appellees, v. HINES CORPORATION et al., Defendants-Appellants.

No. 12720.

Supreme Court of New Mexico.

Oct. 17, 1980.

Rehearing Denied Jan. 13, 1981.

Moses, Dunn, Beckley, Espinosa & Tuthill, Thomas J. Dunn, Albuquerque, for defendants-appellants.

William J. Kraemer, Asst. City Atty., Bernard Robinson, George F. Stevens, Wheeler, Poulson & Associates, John C. Wheeler, Albuquerque, for plaintiffs-appellees.

OPINION

SOSA, Chief Justice.

This case presents the question of whether six quadraplexes built by the Hines Corporation in the Cherry Hills subdivision of Albuquerque, New Mexico, must be brought into conformance with restrictive covenants allegedly applicable to the land. We decide that they should. The issues we address are:

1. Whether certain restrictive covenants apply to the tract of land upon which defendant Hines built the six quadraplexes?

2. If the covenants apply, does the doctrine of relative hardships prevent their enforcement?

3. Whether the trial court erred in awarding damages to plaintiff Harris?

Defendant Hines was the owner of Tract C, of Unit 1 within the Cherry Hills subdivision. Hines redivided Tract C into smaller tracts. At that time it was believed by Hines that the eastern portion of Tract C was zoned R-2, which would allow him to build quadraplexes on the land. Hines submitted plans and obtained a building permit from the City and began construction of six quadraplexes on the tract. It was later discovered that the land was not zoned R-2, but was zoned R-T, which would allow only single family residences and townhouses to be built. When the mistake was discovered, Hines filed a declaratory action seeking to have the City estopped from enforcing the zoning restriction because it had issued the permit.

The City, Hines, and Associated Investment Company, entered into a stipulated settlement. Associated had a joint venture agreement with Hines, and owned the remainder of Tract C, which had not been subdivided. This remainder was zoned R-2, which would allow high density occupation. The settlement stipulated that Associated would limit the density of its land to about half the allowable limit, that Hines could leave the quadraplexes on his redivided land, and that the City would allow the variance.

Alleman, a homeowner in Cherry Hills, brought suit against Hines, the City, Associated and Cherry Hills Architectural Committee to have the settlement set aside, to enjoin the City from allowing the construction of the quadraplexes, and to have the Architectural Committee enforce the covenants and zoning law applicable to Cherry Hills. The quadraplexes were substantially complete when suit was brought.

Trial was had on Alleman's suit, in which he was joined by several other plaintiffs, also residents of Cherry Hills. The court set aside the stipulated settlement and declaratory judgment and found that protective covenants applied to Tract C and that the covenants were unambiguous. The court also found that there was a zoning violation caused by the non-wilful negligence of defendant Hines. The court mandated the City to enforce its zoning laws, mandated the Committee to enforce the covenants, ordered Hines and Associated to bring the quadraplexes into compliance with the covenants and zoning laws, and awarded damages to plaintiff Harris for the cost of building a fence between his property and the quadraplexes.

The first issue we must decide is whether certain restrictive covenants apply to Tract C of Unit 1. The covenant in question describes Unit 1 and thereafter states in part:

WHEREAS, the undersigned desire to restrict and impose certain protective covenants on the above-described property owned by them;

NOW THEREFORE, there are hereby created and established the following protective covenants for said land, to-wit:

All the lots in the subdivision are hereby declared to be single-family residential lots.

The appellants contend that the history of the development of the protective covenants, which were written by Associated, show that Associated never intended Tract C of Unit 1 to be restricted to single family residential lots. They also contend that the plat is an integral part of the covenants and that, if reference is made to the plat, it is clear that the covenant does not apply to Tract C of Unit 1. The plat shows that Tract C has not been subdivided. Appellants argue further that even if it is not clear that Tract C is not burdened by the covenant, then at the very least the covenant should be considered ambiguous. If it is ambiguous, they argue, then the intent of Associated should control.

The appellees argue that a review of the covenant shows no attempt to exclude Tract C from it effect. They also argue that the fact that Tract C has not been subdivided is inconsequential since it can be subdivided in the future. Thus reference to the plat is not instructive.

In construing a protective covenant, a court is to give effect to the intention of the parties as shown by the language of the whole instrument, considered with the circumstances surrounding the transaction, and the object of the parties in making the restrictions. H. J. Griffith...