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<br />/... <br />I <br />,~ - <br />"0 <br /> <br />/_. <br /> <br />{ <br />'. <br /> <br />Z.B. <br /> <br />September 10, 2006 - Page 7 <br /> <br />"existing character and natural beauty" of the farm. <br />The ..covenantsnoted that the property was to be used for single-family, <br />detached homes only and there were to be no more than five such homes <br />located on the property. The provisions were' set to terminate upon Mead's <br />death. Fender eventually conveyed approximately seven acres of the property <br />to MJW Enterprises. . <br />MJW obtained a zoning reclassification for the property so that it could be <br />subdivided. As part of a plan to construct nine residential units on the property <br />MJW filed a lawsuit against Fender, seeking to have the restrictive covenant in <br />the property's deed declared void. A magistrate concluded that the covenant <br />was valid and enforceable, and MJW appealed to court. The court granted <br />judgmentin Fender's favor without a trial. <br />MJW appealed. <br />DECISION: Affirmed. <br />In general, Ohio law did nor favor restrictions on the free use of land. If a <br />covenant was unclear or ambiguous, the court had to choose the interpretation <br />that was the least limiting on the use of the land. However, if the language in a <br />restriction was clear and did not violate law or public policy, the court had to <br />enforce the restriction. <br />The language in the deed stated clearly that development of the property <br />was limited to five single-farriily residences. Further, the intent of the covenant <br />was clear - to maintain the existing character of the farm. Restrictions created <br />to maintain the aesthetic quality of a residential area were valid. Finally, the term <br />of the restriction also was unambiguous; it was in effect until Mead's death. <br />MJW argued that building nine homes on the property would not diminish <br />its value, but the' court found that the "value" the covenant meant to protect <br />was clearly aesthetic, not monetary, in nature. Evidence submitted by MJW that <br />its development would increase the property value had no bearing _em the -case. <br />MJW also argued that the restriction violated the applicable zoning' ordi':' <br />nance for the property. Though the ordinance would allow more than five homes <br />to be constructed on the property, it did not require MJW to do. so; the limit did <br />not conflict with the code. Additionally, where a restrictive covenant was more <br />restrictiv:e than applicable zoning code, the covenant generally prevailed. <br />see also: Dean v. Nugent Canal Yacht Club Inc., 585 N.E.2d 554 (1990). <br /> <br />Easement - Property owner forced to remove part of building that <br />encroached easement <br />Claims this amounts to illegal taking <br />Citation: City of Laredo v. Duarte, Court of Appeals of Texas, 4th Dist., San <br />Antonio, No. 04-06-00226-CV (2006) <br /> <br />TEXAS (07/12/06) - Central Power and Light Company acquired an easement <br /> <br />@ 2006 Quinlan Publishing Group. Any reproduction is prohibited, For more information please call (617) 542-0048, <br /> <br />83 <br />