Bard v. Rose

SHEPARD, J.

This is an appeal by answering defendants, hereinafter called defendants, from a judgment declaring certain tract building and use restrictions unenforceable as to plaintiffs’ lots.

[234]

Facts

While there was some conflict in expert opinion, the facts are without substantial conflict. In 1923 the “Peveler” tract at Palm Springs, California, containing 12 building lots, each lot being 137% feet by 100 feet in size, was subdivided through map recordation. The tract is bordered on the east by Avenida de Los Palos Verdes, on the north by Tachevah Drive and on the west by Indian Avenue. A north and south road, Avenida de Los Olivos, bisects the tract, Block A being on the east and Block B being on the west. The original restrictions allowed only single family dwellings on each lot. In 1932 all of the then owners of the tract signed and recorded a modification of the restrictions so as to permit the erection and use of duplex units on lots 5 and 6 in Block B and an apartment building on lot 4 in Block B. In the same document was inserted a provision for committee approval of architectural design of any building erected during the ensuing 18 years.

In 1923 Palm Springs was an unincorporated desert village of 200 or 300 residents. The only surfaced street was Palm Canyon Drive, a county highway two blocks west of the property subject to this action. Since that time Palm Springs has become one of the most popular winter resort centers of the United States, with consequent municipal incorporation, paved streets, hundreds of apartments, stores, restaurants, amusement centers, hotels, medical and other professional buildings and offices, hospitals, industries and smaller suburban supporting centers in the surrounding areas. Palm Canyon Drive and Indian Avenue for a mile or more north and two miles or more south of the plaintiffs lots are generally devoted to some type of business enterprise. Tachevah Drive is one of the principal east-west traffic arteries of the city. Immediately facing plaintiffs ’ lots on the north side of Tachevah Drive is the service area of El Mirador Hotel, which hotel occupies an area of several blocks and provides several hundred family dwelling units. Also on Tachevah Drive east of El Mirador is a large hospital. On lots 5 and 6 of Block B of the tract are the El Prado and the Desert Villa apartment motels of 10 to 15-unit size. Within a radius of 1,000 feet of the subject property northeast, north, west and south are located dozens of other commercial and professional buildings and uses. All of the lots on the north and west side of the tract, including the subject lots, are zoned by the City of Palm Springs for B-2 or multiple-dwelling use, which is the use to which plaintiffs desire to put their lots. Experts testified that