Property II, Pages 651–655

West Alameda Heights Homeowners Ass'n v. Board of County Commissioners

Supreme Court of Colorado, 1969


Defendant applied to re-zone a portion of plaintiff's subdivision to permit the building of a supermarket and a department store. The subdivision was zoned entirely commercial except for two plats originally reserved for that purpose. The plats all have covenants preventing rezoning except by a majority vote which can occur once a decade, which has never happened. The land defendants wish to use are at the corner of the subdivision, border two major highways, and are unfit for residential use. Defendant also planned to build a buffer between five and six feet tall between the commercial and residential parts.

Procedural History:

The trial court entered judgment against the homeowners, finding that the neighborhood had since changed to become a heavily traveled thoroughfare in an area developing as a commercial area and that plaintiffs would suffer no damage by commercial use as it could not be used for residential use, while defendants would suffer the burden of not being able to use their property.


Did the covenants restricting defendants' use of their land no longer apply?


Changed Circumstances Doctrine

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"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."


  • The covenants were intended to preserve the residential character of the subdivision, which they did as no plats changed to commercial use like the surrounding area outside of the subdivision's control did.

  • Plaintiffs' individual testimony was that their property values would decrease. Their expert witness testified that the shopping facility would bring an increase in traffic and associated noise, fumes, and hazard to children. The county's traffic engineer stated that he could account for and redirect the traffic away from the subdivision, but that the changes would still inconvenience residents.

  • Defendants did not prove that the covenants had ended or changed nor that the usage would not harm harm anyone in the subdivision.

  • The surrounding area being commercialized is not an argument against the covenants, but one for them. They are needed to prevent businesses from coming there. If they were removed by the existence of nearby businesses they would have no use.


The covenants are still valid and enforceable. Reversed and remanded with instructions to grant injunction.

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