Summary
In Cunningham v. Hiles, 395 N.E.2d 851 (Ind.Ct.App. 1979), the Indiana Court of Appeals again held that increased traffic that was restricted to the perimeter of one corner of a subdivision subject to a residential restrictive covenant did not justify invalidation of the restrictive covenants.
Summary of this case from Daniels v. Area Plan Comm. Allen Cty., (N.D.Ind. 2000)Opinion
No. 3-977A234.
Filed October 24, 1979. Rehearing denied March 25, 1980 and May 8, 1980. Transfer denied July 23, 1980.
1. PROCEDURE — Trial Rule 59 — Purpose. — The purpose of Indiana Rules of Procedure, Trial Rule 59, and thus the Motion to Correct Errors, is to apprise the trial court of a party's allegations of error in order to enable the trial court to rectify the error. p. 514.
2. WORDS AND PHRASES — Real Property — "Restrictive Covenant". — The term "restrictive covenant" describes a contract between a grantor and grantee which restricts the grantee's use and occupancy of the land. Such a covenant will maintain or enhance the value of lands adjacent to one another by controlling the nature and use of those lands. p. 515.
3. REAL PROPERTY — Restrictive Covenants — Enforceable Only Where Unambiguous or Non-radical Change. — While restrictive covenants are not favored by the law, they are enforceable by equity so long as (1) the restrictions are unambiguous, and (2) changes in the restricted lands are not so radical in nature that the original purpose of the covenant is defeated. p. 515.
4. REAL PROPERTY — Enforceability of Restrictive Covenants — Changes in Surrounding Area. — Changes in the area surrounding an area protected by a restrictive covenant should be considered in determining the covenant's enforceability when those changes significantly affect the protected area. The weight given to these changes will not be as great as that given to changes which may have occurred within the protected area. p. 517.
5. REAL PROPERTY — Restrictive Covenant — Burden of Proof. — Once a valid restrictive convenant is shown, the party against whom enforcement of the covenant is sought bears the burden of showing that such enforcement would violate public policy. This party must not only show that changes have occurred, but that the changes have adversely affected the purpose of the covenant. p. 517.
6. REAL PROPERTY — Restrictive Covenants — Enforceability. — Where a restrictive convenant protects a zoned residential area, and (1) a new zoning ordinance specifically honors that covenant; (2) an office building encroaching on the area has a minimal effect on the residential nature of the area; and (3) change outside the residential area has not significantly affected the character within the protected area, the covenant will be enforceable. p. 518.
Appeal from a denial of an injunction to enforce a restrictive covenant.
From the Lake Circuit Court, Felix A. Kaul, Judge.
Reversed and remanded with instructions by the Third District.
William J. Muha, Daniel G. Hoebeke, Zandstra, Zandstra Muha, of Highland, for appellants.
Kenneth D. Reed, Abrahamson, Reed Tanasijevich, of Hammond, for appellees Hiles, Gomez, Clouser and Clouser. Gilbert F. Blackmun, Leonard M. Holajter, Friedich, Bomberger, Tweedle, Blackmun, of Hammond, for appellee Town of Schererville Plan Commission and Town of Schererville.
James D. Cunningham, Fred M. Lutgen, Jr., and Ross Haller, whom we shall hereinafter refer to as "Homeowners", resided in Lincoln Knolls Estates, a subdivision of Schererville, Indiana. They filed an action against the various named defendants in an attempt to preclude the possibility that the wholly residential character of their subdivision would be compromised by the establishment of a commercial enterprise. Since the inception of Lincoln Knolls Estates in 1953, a covenant has restricted the development of lots to residential use.
We use the word "subdivision" herein in its common sense; Lincoln Knolls Estates has not been legally subdivided and so recorded with the Town of Schererville.
In July of 1976, the Schererville Plan Commission voted to recommend to the Schererville Board of Trustees that the zoning classification of a particular tract within Lincoln Knolls Estates be changed from residential to commercial usage. The recommendation was subsequently adopted by the Board of Trustees. Homeowners challenged the propriety of that re-classification in the trial court on the basis that the Plan Commission had violated due process and equal protection guarantees of Homeowners.
A related but legally distinct claim provided the basis for Homeowners' suit against individual defendants Doug Hines, Al Gomez, Jr., and Arthur and Sarah Clouser. In April of 1976, the Clousers, who own various tracts of land in Lincoln Knolls Estates, entered into a contract with Doug Hines for the sale of one of their lots within the subdivision. The sale was made conditional upon whether the zoning classification of the property would be changed from residential to commercial use. Following the Trustees' zoning re-classification of the property in July of 1976, Hiles employed Al Gomez, Jr. as general contractor to direct the construction of a music store on the purchased lot in Lincoln Knolls Estates. Homeowners filed suit against the Clousers, Hiles, and Gomez to permanently enjoin the construction of the proposed music store on the basis that the use of land in Lincoln Knolls Estate was restricted by covenant to residential purposes.
Homeowners related claims against the various defendants were tried without the intervention of a jury. Following the presentation of evidence and arguments of counsel, the trial court entered judgment for both the named individual defendants and the Town of Schererville and its Plan Commission. Homeowners here appeal from those decisions, and raises the following issue for our review:
(1) Whether the evidence supports the conclusion of the trial court that the restrictive covenant limiting the use of land within the subdivision to residential purposes was not enforceable?
We reverse the trial court's determination that the restrictive covenant was unenforcable.
Since we find the restrictive covenant to be enforceable, we do not address other issues raised by Homeowners with respect to the trial court's finding that the covenant was unenforceable. Nor is it necessary for this Court to address Homeowners' contention that inadequate notice was provided to them prior to the meeting of the Schererville Board of Trustees. The zoning re-classification of Hiles' property is of no effect in view of our decision that the restrictive covenant was enforceable.
Homeowners contend that the evidence was insufficient to support the trial court's conclusion that the covenant restricting the use of the subject tract to residential purposes was unenforcable. At the outset, we note that individual defendants Hiles, Gomez, and the Clousers maintain that Homeowners have waived their right to raise this question on appeal because the issue was not raised in Homeowners' motion to correct errors.
While the presentation of issues in Homeowners' motion to correct errors is not a model of organization, we feel the allegations of error asserted therein satisfied the [1] purpose of Ind. Rules of Procedure, Trial Rule 59. The purpose of TR. 59 is to apprise the trial court of a party's allegations of error in order to enable the trial court to rectify the error. Johnson v. State (1975), 167 Ind. App. 292, 338 N.E.2d 680, 682. Homeowners' motion to correct errors explicitly tendered the following related allegations:
(1) Whether the trial court applied the proper standard by which to evaluate whether the evidence justified a finding that the restrictive covenant was unenforceable?
(2) Whether the individual defendants had presented evidence sufficient to satisfy their burden of proof to show that the restrictive covenant was not enforceable?
In order to adjudicate these allegations, the court was necessarily required to determine whether the evidence was sufficient to support its decision that the restrictive covenant was not enforceable. The motion to correct errors alleged that the court had applied an incorrect standard of review in evaluating the evidence to determine whether the covenant was enforceable, that the defendants had the burden of proof to show that the correct standard was satisfied, and that the defendants had not carried this burden. The issue as framed on appeal represents nothing more than an amalgamation of these contentions. Consequently, we find that Homeowners have not waived their right to challenge the sufficiency of the evidence on appeal. We turn our attention to the substance of Homeowners' claim, consistent with the long-standing appellate preference to decide issues on their merits West v. Indiana Insurance Co. (1969), 253 Ind. 1, 11, 247 N.E.2d 90, 97.
In the context of property law, the term "restrictive covenant" describes a contract between a grantor and grantee which restricts the grantee's use and occupancy of land. Bob Layne Contractor, Inc. v. Buennagel (1973), 158 Ind. App. 43, 53, 301 N.E.2d 671, 678. Generally, the purpose behind restrictive covenants is to maintain or enhance the value of lands adjacent to one another by controlling the nature and use of surrounding lands. Id. Here, since 1953 the restrictive covenant had been a part of contracts for the sale of tracts within Lincoln Knolls Estates and had restricted the use of lots within the subdivision to residential purposes. The covenant has served to maintain the residential character of life in Lincoln Knolls Estates and to preserve the value of the lots and homes in the residential market. Homeowners have invoked the restrictive covenant to block the proposed construction of a commercial use, a music store.
Although restrictive covenants are not favored by the law, the contractual nature of the restrictions contained in such covenants has compelled courts to enforce them in equity [3] so long as the restrictions are unambiguous and do not violate public policy. Id. Public policy demands that restrictive covenants be invalidated when the changes are so radical in nature that the original purpose of the covenant has been defeated. Id. Our determination here thus hinges on whether changes within Lincoln Knolls Estates and the area surrounding it subsequent to 1953 are so radical in nature that the purpose of the convenant — to maintain the residential character of the subdivision — is no longer feasible.
The evidence regarding changes within Lincoln Knolls Estates since 1953 includes the following. In 1974, Western and Southern Insurance Company constructed an office building which protrudes approximately 112.50 feet into the subdivision at its northeast corner. Employees of Southern and Western must momentarily use a subdivision street at the northeast corner of Lincoln Knolls Estates in order to reach the parking lot for that building. Our search of the record reveals that the only other change since 1953 for our consideration here is the zoning reclassification which was granted Southern and Western Insurance Company in 1973 for the then-proposed construction of the office building.
According to the Town of Schererville's "Zoning Ordinance No. 490," which established comprehensive zoning regulations for the town and delineated procedures for the administration and enforcement of regulations, the ordinance does not "abrogate any easement, covenant, or any other private agreement." Zoning and Use Regulations Ordinance, Town of Schererville, Indiana, No. 490 § 3(C), p. 1 (1969). Therefore, we conclude that the zoning change is of no consequence to our determination as to whether changes in conditions within Lincoln Knolls Estates have defeated the purpose of the restrictive covenant. Capp v. Lindenberg (1961), 242 Ind. 423, 433, 178 N.E.2d 736, 740. Cf. Bob Layne Contractor, Inc. v. Buennagel, supra, at 678.
In the area surrounding Lincoln Knolls Estates, several changes have occurred since 1953 which bear on our consideration here. Adjacent to the Western and Southern office building, a bank has replaced the gas station which, prior to 1953, had occupied the lot adjacent to the northeast perimeter of the subdivision. The record also reveals that a gas station was built across the highway from the northeast corner of the subdivision, that approximately one mile away on U.S. 30 various businesses had located, and that roughly two miles away a lumber company had located next to U.S. 30. Testimony also established that the amount of traffic on U.S. 30, which forms the northern border of the subdivision, had increased eight to ten times that which existed in 1953.
We note that the question whether changes in the area surrounding a residentially restricted subdivision affects the restrictive covenant has not been previously considered in this jurisdiction. Our search of Indiana case law does reveal, however, this general rule by which courts have been guided in their determinations of the enforceability of restrictive covenants:
"`No hard and fast rule can be laid down as to when changed conditions have defeated the purpose of restrictions, but it can be safely asserted the changes must be so radical as practically to destroy the essential objects and purposes of the agreement. * * *'"
Bachman v. Colpaert Realty Corp. (1935), 101 Ind. App. 306, 319-320, 194 N.E. 783, 789, quoting Rombauer v. Compton Heights Christian Church (1931), 328 Mo. 1, 40 S.W.2d 545, 553. [4] In Indiana, the enforceability of a restrictive covenant is to be determined on a case by case basis; we therefore decline to follow those jurisdictions which have held that changes in the area surrounding an area protected by a restrictive covenant cannot ever affect the enforceability of the convenant. 20 AM.JUR.2d Covenants, Conditions, and Restrictions § 284 (1965). See, e.g., Morgan v. Matheson (1961), 362 Mich. 535, 107 N.W.2d 825, 828. Rather, we conclude that changes in an area surrounding an area protected by a restrictive covenant should be considered in the determination of the covenant's enforceability when these changes have significantly affected the residential character of the subdivision. Accord, Deitch v. Bier (1975), 460 Pa. 394, 333 A.2d 784, 785. At the same time, we conclude that the weight attributed to these changes should not be as great as that accorded changes which have occurred within the restricted area. Hecht v. Stephens (1970), 204 Kan. 559, 464 P.2d 258, 262.
It is necessary to examine each of the changes in the area surrounding Lincoln Knolls Estates, and their affect upon the residential character of Lincoln Knolls Estates. First, [5] the record does not reveal that the change in occupancy of the lot adjacent to the northeast corner of Lincoln Knolls Estates — from service station to bank — has had a negative impact on the residential character of the subdivision. The record shows that the only adverse impact of the presence of the service station across the highway from the subdivision, as well as the various business establishments located adjacent to U.S. 30 a mile or more from the subdivision, has been to increase traffic on U.S. 30, the divided highway which constitutes the northern border of Lincoln Knolls Estates. Finally, the record indicates that the increase of traffic on U.S. 30 to approximately eight to ten times that which existed in 1953 has had an impact on the residential character of the subdivision. According to testimony, vacant lots of Lincoln Knolls Estates which border U.S. 30 no longer attract residential buyers due to the proximity of those tracts to the traffic load.
We point out that once it is shown that a valid covenant restricts the use of property to residential purposes, the party against whom enforcement of the covenant is sought bears the burden of showing that enforcement of the covenant would violate public policy. Exchange Nat. Bank of Chicago v. City of Des Plaines (1975), 32 Ill. App.3d 722, 336 N.E.2d 8, 16. This burden is not satisfied merely by proving that particular changes have occurred; rather, it also requires the party to show how the changes have adversely affected the purpose of the covenant.
Based on our examination of the record, we conclude that two changes have occurred within and around Lincoln Knolls Estates since 1953 which are significant to the enforceability of the restrictive covenant: (1) The construction of the Western and Southern Insurance Company office building has led to increased traffic within one corner of the subdivision; and, (2) The general urban development of the Schererville area has led to a dramatic increase in the amount of traffic on U.S. 30, which forms the northern border of the subdivision. As previously noted, greater weight must be accorded to changes within the protected area.
We conclude that the momentary presence of employees of Western and Southern Insurance Company trafficking to and from the office building has not significantly affected the residential [6] character of the subdivision. That traffic is restricted to the perimeter of one corner of the subdivision, which, in its entirety, encompasses sixty acres. Testimony established that, excepting the corner thoroughfare used by Western and Southern employees, the streets throughout the subdivision are used by pedestrians and as a playground by children. While the increase of traffic on U.S. 30 has unfortunately diminished the residential value of some adjacent subdivision tracts, there is no evidence to indicate that the increased traffic load has affected the residential nature of life within Lincoln Knolls Estates. Consequently, the evidence presented does not reveal that the changes which have occurred within and around the subdivision are so radical in nature that the purpose of the restrictive covenant has been defeated.
The trial court thus erred when it found that the convenant was unenforceable. The cause is remanded to the trial court with instructions to grant Homeowners' prayer for a permanent injunction against the proposed construction of the music store.
Garrard, P.J., and Hoffman, J., concur.
NOTE — Reported at 395 N.E.2d 851.
ON PETITION FOR REHEARING
Appellee Hiles has requested in his Petition for Rehearing that this Court "vacate and set aside" its disposition of Cunningham's appeal on the basis that a material change in circumstances has rendered the appeal moot. Our opinion, which appears at Cunningham v. Hiles (1979), 182 Ind. App. 511, 395 N.E.2d 851, is concluded with the directive that the Lake County Circuit Court grant a permanent injunction against the construction of the music store proposed by Hiles. Via the information and contentions contained in Hiles' Petition for Rehearing, this Court has — for the first time — been informed that during the pendency of this appeal, construction of the music store was completed. It is consequently necessary that this Court modify its previous order. Hiles' Petition for Rehearing, however, is in all respects denied. We briefly summarize the chain of events which necessitates our action here.
In 1976, Hiles obtained approval from Schererville, Indiana, zoning authorities to construct a music store on a tract located in a subdivision known as "Lincoln Knolls Estates." The nature of the subdivision's growth, since its inception in 1953, has been governed by a restrictive covenant, which limits the development of lots located therein to residential use.
Cunningham, as well as various other residents of the subdivision (hereinafter collectively referred to as "Homeowners"), filed suit against Hiles seeking to permanently enjoin his construction of the music store. In the trial court, they contended that the construction of the music store would violate the covenant restricting the use of lots within Lincoln Knolls Estates to residential purposes. The trial court found that the restrictive covenant was unenforceable and denied Homeowners' request for a permanent injunction.
The use of the label "Homeowners" is consistent with our opinion. Cunningham v. Hiles, supra. Specifically, the phrase describes James Cunningham, Fred M. Lutgen, and Ross Haller, the residents of Lincoln Knolls Estates who initiated this appeal.
Homeowners also challenged the validity of the zoning reclassification approved by Schererville zoning authorities. Inasmuch as the fact of that reclassification was of no effect in view of our decision that the restrictive covenant was enforceable, we did not address Homeowners' challenges to the zoning reclassification. Cunningham v. Hiles, supra, at 853. fn. 2.
Homeowners then perfected this appeal. Based on our analysis of the evidence, there was substantial evidence to support the trial court's findings regarding changes which had occurred within and around Lincoln Knolls Estates since 1953; we reversed the trial court's determination that the restrictive covenant was unenforceable. This Court found that the changes which had occurred within and around Lincoln Knolls Estates were not so "radical in nature" to have defeated the purpose of the covenant — to maintain the residential character of the subdivision and preserve the value of the homes in the residential market. Cunningham v. Hiles, supra at 854-56, relying on Bob Layne Contractor, Inc., v. Buennagel (1973), 158 Ind. App. 43, 301 N.E.2d 671. Accordingly, we remanded the cause to the trial court with the directive that it should "grant Homeowners' prayer for a permanent injunction against the proposed construction of the music store." Cunningham v. Hiles, supra.
In his Petition for Rehearing, Hiles has suggested that this Court granted relief "substantially different" than that relief requested by Homeowners in their appeal. The relief which may be granted by this Court is coextensive with that relief which a trial court may grant under Ind. Rules of Procedure, Trial Rule 59(E). Ind. Rules of Procedure, Appellate rule 15(M); State ex rel. Schmal v. Lake Superior Court (1975), 264 Ind. 73, 339 N.E.2d 58. Among the various types of relief enunciated in TR. 59(E) is the entry of final judgment when such relief is not "impracticable or unfair." Here, the parties fully litigated the question of the enforceability of the covenant at trial. No purpose would have been served by a new trial. It is well settled that the relief granted by this Court need not be identical to the relief requested by the parties. McConnell v. Thompson (1937), 213 Ind. 16, 11 N.E.2d 183. "It is the province of this Court to dispose of cases whenever possible by granting appropriate relief." McCarthy v. McCarthy (1971), 150 Ind. App. 640, 276 N.E.2d 891, 897.
Appellee Hiles then filed his Petition for Rehearing wherein this Court was first placed on notice of the fact that during the pendency of the appeal, the music store had been construed. Hiles' Petition for Rehearing reads in pertinent part:
"In the meanwhile, the Defendants-Appellees constructed the music store, and it is in existence today. It is respectfully submitted that the appeal became moot prior to the Court's decision in this case. Perhaps one or more the parties should have called this fact to the attention of the Court of Appeals via a motion to dismiss. However, there does not appear to be any provision in the Appellate Rules for doing that once the briefs are filed, and the record will show that the only other opportunity would have been at oral argument, and the Court denied oral argument by order entered contemporaneously with the decision and opinion in the case. . . ."
We agree that during the pendency of the appeal, the parties should have informed this Court of the fact that the music store had been constructed. We reject outright, however, Hiles' suggestion that he was precluded from informing this Court of the existence of the music store by our denial of Homeowners' request for oral argument.
Inasmuch as Hiles has waived his right to have this Court address his argument, we do not reach Homeowners' contention that Hiles' "Reply brief" should be stricken on the basis that it was not timely filed.
We note that the essence of Hiles' argument is (1) that he was entitled to build the music store because Homeowners did not file a supersedeas or appeal bond, and (2) consequently, the fact that he did construct the building cannot now work against him. Hiles has not shown this Court that Homeowners were required to seek an appeal bond or otherwise stay enforcement of the denial of the injunction pending the outcome of their appeal. Nor do the commentators suggest that Homeowners had such a duty. Harvey, 4 Indiana Practice § 62.1 et seq. pp. 280-296 (1971); Wiltrout, 3 Indiana Practice § 2222 p. 84 (1967). In other words, Hiles built the music store at his own peril.
In fact, our Supreme Court has vigorously emphasized that oral argument is not the appropriate vehicle by which to inform an appellate tribunal of post-judgment events which may affect the outcome of a pending appeal. Snider v. Mt. Vernon Hancock School Bldg. Corp. (1968), 250 Ind. 10, 234 N.E.2d 632, 634. Such an exercise, the Court explained in Snider, would constitute a wasteful expenditure of this Court's most precious commodity — time. For this reason, parties have a duty "to place such matters before this Court by proper petitions, motions, or challenges by verified pleadings." Id. Among the "petitions, motions, or challenges by verified pleadings" available, a "Motion to Dismiss the Appeal" is one often-used avenue by which to inform an appellate tribunal of a post-judgment change in circumstances which might render a pending appeal moot. Gierhart v. State (1962), 243 Ind. 553, 186 N.E.2d 680; Miller v. Kankakee Pine Creek Drainage Ass'n (1953), 232 Ind. 412, 112 N.E.2d 852; Fox v. Holman (1933), 95 Ind. App. 598, 184 N.E. 194; Bloom v. Town of Albion (1932), 96 Ind. App. 229, 183 N.E. 325; Johnson v. Paris (1922), 78 Ind. App. 110, 134 N.E. 880; Wiebke v. City of Fort Wayne (1917), 64 Ind. App. 38, 115 N.E. 355.
On the other hand, it is a basic tenet of appellate review that a Petition for Rehearing will not be granted on the basis of acts which occurred during the pendency of the appeal and which were not in any manner presented for this Court's consideration. Lugar v. Burns (1926), 197 Ind. 646, 150 N.E. 774, pet. for rehearing den. 197 Ind. 654, 151 N.E. 689; Baltimore, Etc. R. Co. v. Sliger (1923), 194 Ind. 442, 141 N.E. 467, pet. for rehearing den. 194 Ind. 450, 143 N.E. 282; Ness v. Board of Commissioners (1912), 178 Ind. 221, 98 N.E. 33, pet. for rehearing den. 178 Ind. 232, 98 N.E. 1002; Meeks v. State, ex rel. (1909), 172 Ind. 654, 663, 88 N.E. 299, pet. for rehearing den. 172 Ind. 654, 89 N.E. 307. (See rehearing citations.).
In Ness v. Board of Commissioners, supra, the rule was applied in circumstances not unlike those present here. Plaintiff Neff sought to enjoin performance of a county contract for construction work. The injunction sought by Neff was denied by the trial court. Neff instituted an appeal. Meanwhile, the contractor who had been granted the contract proceeded with his work. After the Supreme Court had reversed the judgment of the trial court and directed it to grant the injunction, counsel for the Board of Commissioners argued on rehearing that the substantial costs incurred by the contractor during the pendency of the appeal warranted a reassessment of the Court's decision. The Court responded:
"But it is urged that relying upon the judgment below, and the varying changes wrought in the situation of the opinions promulgated in the case, appellee contractor has proceeded with the work until a considerable expenditure has been incurred by him. This appears by the brief of counsel, and we, of course, cannot be governed by the after-accruing results, and, much as the condition he now finds himself in is to be regretted, we are in no situation to extend relief from conditions which he is at least equally responsible in producing." (Emphasis added.).
178 Ind. at 237, 98 N.E. at 1004.
The rule was reiterated in Lugar v. Burns, supra, where the Court confronted and overruled a Petition for Rehearing based on theretofore-unrevealed acts which had occurred during the pendency of the appeal:
"[T]he rule is firmly established that the Supreme Court will not grant a rehearing to decide a question that was not presented by the record on which that decision was based, nor in any way suggested to the court until after the decision was made.
* * *
"We cannot now recall that decision to pass upon questions arising out of acts done in 1925, as to which nothing was shown by the record or in any manner whatever presented to this court for consideration at the time it decided the appeal.
"The petition for a rehearing is overruled." (Citations omitted.).
197 Ind. at 655, 151 N.E. at 690. Likewise, this Court will not now "vacate and set aside" its disposition of Homeowners' appeal on the basis of the heretofore unrevealed fact that the music store was constructed during the pendency of this appeal.
Simply stated, this Court is not obligated on rehearing to address an issue not theretofore presented for our consideration. Pintozzi v. Small (1959), 130 Ind. App. 570, 161 N.E.2d 380. Such tardily-raised questions are waived. Id.; Browne v. Blood (1964), 245 Ind. 447, 199 N.E.2d 712, 713; State v. Indianapolis Airport Authority (1977), 173 Ind. App. 55, 362 N.E.2d 200; Stucker v. College Life Ins. Co. (1965), 139 Ind. App. 422, 211 N.E.2d 320, 321; Daviess-Martin County Rural Tel. Corp. v. Public Service Commission (1961), 132 Ind. App. 610, 175 N.E.2d 439, 440; Groves v. Burton (1955), 125 Ind. App. 302, 123 N.E.2d 705, 707.
This Court may, however, modify its mandate when it is informed upon Rehearing that the condition of the parties has been materially changed during the pendency of the appeal. Green v. McGrew (1905), 35 Ind. App. 104, 72 N.E. 1049, rehearing den. 35 Ind. App. 115, 73 N.E. 832-33. The circumstances here clearly necessitate such action. Our mandate that construction of the music store be permanently enjoined cannot be effectuated; the music store has already been constructed.
Homeowners, in response to Hiles' Petition for Rehearing, have filed a "Petition to Modify Mandate by Amending Relief" wherein they have requested this Court to (1) order the discontinuance of the commercial usage of the premises, and (2) order the removal of the structure erected during the pendency of Homeowners' appeal. As indicated in the text, infra, we do not modify our mandate to require the removal of the building. That drastic measure is not necessary to effectuate the purposes of the restrictive covenant.
Our modification is made consistent with the strictures contained in our disposition of Homeowners' appeal. There, we held that the restrictive covenant applicable to all tracts located within Lincoln Knolls Estates was enforceable. Cunningham v. Hiles, supra, at 854-56. We hereby direct the Lake Circuit Court to issue a permanent injunction against the use of the structure for any purpose which violates the terms of the restrictive covenant.
This limitation on the use of the structure, albeit regrettable, is peculiarly necessary in the circumstances before us. As we noted in our disposition of Homeowners' appeal, the enforceability of a restrictive covenant is determined by an examination of the changes which have occurred within and around the area subject to the covenant. If those changes are so radical in nature that the purpose of the covenant has been defeated, the covenant is unenforceable. Significantly, in the examination of whether the purpose of the covenant has been defeated, greater weight is to be accorded those changes which have occurred within the subject area than those changes which have transpired in the surrounding area. Id.
Consequently, if, notwithstanding our determination that the covenant is enforceable, we permitted the structure to be used for commercial purposes, the very essence of the restrictive covenant would be subverted. Obviously, the operation of a music store within Lincoln Knolls Estates would have the immediate effect of compromising the residential character of the subdivision. In turn, this erosion of the residential nature of Lincoln Knolls Estates might beget future violations of the covenant; as a change within the subdivision, the existence of a music store would be accorded great weight in any future challenge to the enforceability of the restrictive covenant. In short, to permit the structure to be used for commercial purposes would in effect vitiate the restrictive covenant which we found enforceable.
Hiles' Petition for Rehearing is denied. This Court's mandate enunciated in Cunningham v. Hiles (1979), 182 Ind. App. 511, 395 N.E.2d 851, 856, is modified. The cause is remanded to the Lake Circuit Court for further proceedings not inconsistent with this opinion.
Garrard, P.J. and Hoffman, J., concur.
NOTE — Reported at 402 N.E.2d 17.