West Alameda Heights Homeowners Ass'n v. Board of County Com'rs of Jefferson County

Decision Date25 August 1969
Docket NumberNo. 23390,23390
Citation458 P.2d 253,169 Colo. 491
PartiesWEST ALAMEDA HEIGHTS HOMEOWNERS ASSOCIATION, H. W. Nichols, Norman Jensen, Mrs. Mazie Johnson, Mrs. Christine Hupp, Dorothy R. Baker, and Maria Dunlap, Plaintiffs in Error, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF JEFFERSON, State of Colorado; George O. Newton, Carma S. Newton, Bernice Newton, F. W. Woolworth Company, Safeway Stores, Inc., and Bankers Life Insurance Company, Defendants in Error.
CourtColorado Supreme Court

Calkins, Kramer, Grimshaw & Carpenter, Denver, for plaintiffs in error.

Winner, Berge, Martin & Camfield, William G. Berge, Denver, for defendants in error.

DAY, Justice.

The West Alameda Heights Homeowners Association and certain individual homeowners, representatives in a class action for persons who reside in West Alameda Heights Subdivision, are here assigning error to the decree of the Jefferson County district court, declaring null and void restrictive covenants on a number of lots in certain blocks in the subdivision.

As plaintiffs below they brought an action to enjoin the construction of two large shopping facilities on the subject property by the F. W. Woolworth Company and Safeway Stores, Inc. to be financed by Bankers Life Insurance Company. The three Newtons are made defendants as owners of the property. George Newton was the original developer of the subdivision who in 1947 filed the plat and created the covenants contained therein. The subdivision is bounded on the north by West First Avenue; on the east by Wadsworth Boulevard; on the south by West Alameda; and on the west by Cody Street. Outside of the subdivision, particularly to the east and to the southeast, there has been extensive commercial development, and both Wadsworth Boulevard and West Alameda are major four-lane highways.

The plat contains protective covenants restricting the use of the lands in the subdivision. Each covenant provides that, except as noted, all lots shall be Residential 1. The significance in our determination is the fact that the subdivision is large and almost fully developed as planned, consisting primarily of single family residences. There are over 350 lots comprising the tract. Only 80 to 85 of these have not been developed. The only commercial uses presently situated in the subdivision are a service station and a garden center located on land originally reserved for commercial use in the plat. Apartments have been constructed on other land set aside for commercial purposes. The major portion of three blocks--numbers 13, 14 and 15--proposed to be used for the shopping facilities was platted as residential property and restricted to such use by the covenants which have never been amended. The original covenants provide that they would be in force until June 30, 1965 and automatically extended for successive ten year periods unless the owners of a majority of the lots by vote change the covenants in whole or in part. There has been no attempt to amend or change them, no election has been called or held, and the present extension of the covenants does not expire until June 30, 1975.

The factor which precipitated this action was an application by George Newton to re-zone a portion of the blocks retained by him to permit the building of a Safeway Store and a Woolco Department Store. This property still owned by George Newton fronts on West Alameda and extends northward approximately 600 feet to an area zoned for single family homes. It was planned to erect a buffer consisting of a masonry wall not less than five feet nor more than six feet in height between the commercial enterprises and the residential property to the north.

The writ of error here involves only plaintiffs' fourth claim for relief which relates to the restrictive covenants. In this claim the plaintiffs, after setting out the existence and nature of the covenants aver that the purchasers of the lots in the subdivision relied on restrictive and protective covenants which were designed for the protection of the neighborhood and of the property; and that the restrictions are applicable not only to the property in the development which has been sold but also to the property retained by the defendant George Newton for future sales. They allege they have invested large sums of money in lots and homes in the subdivision in reliance on the covenant.

In entering judgment against the homeowners on this claim, the trial court made the following findings, Inter alia:

'10. The character of this neighborhood has changed considerably since the West Alameda Heights was created. The subject land borders on West Alameda Avenue, a short distance from the intersection of Wadsworth Avenue. At the time of the imposition of the covenants, Alameda was mainly a residential avenue. Now it is a heavily traveled thoroughfare and the area is developing as a commercial area. Villa Italia Shopping Center is at the intersection of Alameda and Wadsworth.

'11. The subject land is not suitable for residential use and is suitable only for commercial use. Plaintiffs will suffer no damage by commercial use. To deprive the defendants Newton of the right to use the property would not be equitable and if the restrictive covenants are enforced, they would be deprived of the right to use their property. The enforcement of the restrictive covenants would impose an oppressive burden on defendants Newton without any substantial benefit.'

The court declared the restrictive covenants to be null and void as to the subject property.



We answer the question in the negative and hold that the covenants are valid and enforceable.

The pertinent rule of law applicable to this case is most recently set out in Zavislak v. Shipman, 147 Colo. 184, 362 P.2d 1053, wherein this court adopted the language of McArthur v. Hood Rubber Co., 221 Mass. 372, 109 N.E. 162, as follows:

"* * * When the purpose for which the restriction was imposed has come to an end, and where the use of the tract of land for whose benefit it was established has so utterly changed that no party to the bill could be heard to enforce it in equity or would suffer any damage by its violation, * * * a proper case is made out for equitable relief. * * *"

Parties plaintiffs and defendants all rely on our pronouncement in Zavislak. The court, in striking down the covenants, attempted to apply the same rule of law. We hold, hoewver, that the court misconceived and misapplied the rule to changes and developments outside of and beyond the subdivision itself. This is made evident by the court's reference to the changed traffic patterns on Wadsworth and Alameda and the development of Villa Italia Shopping Center and other developments east of the Alameda and Wadsworth intersection.

The true test here, however, as to whether the purpose of the restrictions has come to an end, is the development of the subdivision which is the subject of the covenants subsequent to their creation. Thus the courts look to whether the original...

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4 cases
  • Camelback Del Este Homeowners Ass'n v. Warner, CA-CV
    • United States
    • Arizona Court of Appeals
    • September 29, 1987
    ... ...         See also West Alameda Heights Homeowners Association v. Board f County Commission, 169 Colo. 491, 458 P.2d 253 (1969); ... ...
  • Banning Lewis Ranch Co. v. City of Colo. Springs (In re Banning Lewis Ranch Co.)
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    ...a benefit to the City and the other Annexors, the Agreements cannot be set aside. West Alameda Heights Homeowners Ass'n v. Board of County Comm'rs of Jefferson County, 169 Colo. 491, 458 P.2d 253, 256 (1969) (“[Changed circumstances] will not warrant the lifting of restrictive covenants aff......
  • C & A Invs. v. Jiangson Duke, LLC
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    • Nevada Supreme Court
    • October 11, 2022
    ... ... Compton Heights ... Christian Church, 40 S.W.2d 545, 553 ... (quoting W. Alameda Heights Homeowners Ass'n v. Bd ... of Cty ... ...
  • Western Land Co. v. Truskolaski
    • United States
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    ... ...         The respondents, homeowners in the Southland Heights subdivision in southwest ... at the northeast corner of Plumas and West Plumb Lane. In 1941 the appellant subdivided the ... West Alameda Heights H. Ass'n v. Board of Co. Com'rs, 169 ... ...
3 books & journal articles
    • United States
    • Colorado Bar Association Colorado Community Association Law: Condominiums; Cooperatives; and Homeowners Associations (CBA) Chapter 2 Creation of a Common Interest Community
    • Invalid date
    ...and are no longer beneficial to those claiming under them). See also West Alamedo Heights Homeowners Ass'n v. Bd. of County Comm'rs, 458 P.2d 253 (Colo. 1969) (courts look to whether original purposes of ensuring maintenance of residential character has been abandoned or changed by acquiesc......
  • Chapter 14 - § 14.4 • RESTRICTIVE COVENANTS
    • United States
    • Colorado Bar Association Colorado Real Property Law (CBA) Chapter 14 Covenants
    • Invalid date
    ...Inc., 449 P.2d 361 (Colo. 1969).[135] See, e.g. , W. Alameda Heights Homeowners Ass'n v. Bd. of County Comm'rs of the County of Jefferson, 458 P.2d 253 (Colo. 1969).[136] Pagosa Lakes Prop. Owners Ass'n v. Caywood, 973 P.2d 698 (Colo. App. 1998).[137] See, e.g., Judd v. Robinson, 92 P. 724 ......
    • United States
    • Colorado Bar Association Colorado Community Association Law: Condominiums; Cooperatives; and Homeowners Associations (CBA) Chapter 10 Restrictions On Use, Appearance, and Alienation; Nuisances
    • Invalid date
    ...See § 10.1.3.[147] Zavislak v. Shipman, 362 P.2d 1053 (Colo. 1961).[148] West Alamedo Heights Homeowners Ass'n v. Bd. of County Comm'rs, 458 P.2d 253, 256 (Colo. 1969) (courts look to whether original purpose of ensuring maintenance of residential character has been abandoned or changed by ......

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