delivered the opinion of the court.
Plаintiffs, the owners of Lots 9 and 10, Block 33, Mountview Park Addition, City of Cheyenne, since 1963, brought a declaratory judgment class action, seeking to void and make of no effect the “Declaration of Protective Covenants,” which had been filed of record in the office of the county clerk and recorder of Laramie County in 1946, shortly after the platting and dedication of the addition to which the covenants applied and of which plaintiffs’ lots are two of some three hundred and nineteen
Defendants answered and in addition to urging that the complaint did not state a claim admitted the respective ownership of the lots to which the complaint referred, the establishment of the addition, the existence of the protective covenаnt, and the City’s zoning arrangements, alleging that the recent changes in zoning in Block 33 were irrelevant to the covenant, which presented an independent issue. Defendants also counterclaimed, asking an injunction to prevent plaintiffs’ violation of the covenant.
Triаl resulted in a judgment finding that the real property, which is the subject of the action, Lots 9 and 10, Block 33, Mount-view Park Addition, has been and still is subject to the protective covenants and that there has been no change in the neighborhood which would nullify such covenants and acсordingly denied and dismissed the complaint, enjoining plaintiffs from using the lots for business or for other purposes than residences.
Plaintiffs have appealed, urging that the trial court completely ignored the undisputed evidentiary facts, arguing specifically that (1) the finding of the trial court of no change in the nature of the neighborhood is contrary to the undisputed evidence ; (2) the changes which may be considered in determining a change of the character of the neighborhood include those in the area outside the Mountview Park Addition; and (3) the changes in the nature of the neighborhood have been proved without dispute so that the protective covenants are no longer properly applicable to the lots.
In their effort to support the charged errors, plaintiffs point to evidence, oral, documentary, and photographic, showing that in 1946 at the time of platting and dedicating the Mountview Park Addition the land so platted as well as that in all directions from it was undeveloped and over the years from then to the present various businesses have movеd out along East Lin-colnway, the street immediately south of the lots in question, with business zoning therein being permitted by the City until now there are businesses to the west, south across the street, and on further east, and substantial highway development and realignment to the south and east. Some attеmpt is also made to show that in such interim there has been in Mountview Park Addition itself a departure from the one-family dwelling requirement of the covenant, but this essayed showing is feeble, disclosing at most a beauty shop in an apartment building, the construction of a church having an аccompanying parking area on lots north of those in question, and the approval by the board of adjustment of a nonconforming use unobjected to by residents, including activity for a time of a photographer in his home. • Evidence of a trend toward nonconformity in the Mount-view Park Addition - itself was so slight that counsel mentions the subject only peripherally with no apparent effort to rely
The facts before the cоurt then as either actually or tacitly conceded by the litigants are:
In 1946 those platting and dedicating the Mountview Park Addition, which was then in and surrounded by undeveloped land, adopted a comprehensive plan providing for residences of different types, service аnd business areas, one of the latter being the half-block along the East Lincolnway across the street and immediately west of the lots here litigated. Since 1946 business in surrounding subdivisions to the west and south has with the City’s consent and approval developed but there has been no real change of neighborhood in Mountview Park Addition.
The question thus presented is whether under such circumstances there has been a showing by plaintiffs, which would have under existing law required the trial court to nullify the restrictive covenants — another way, perhaps, of stating plaintiffs’ аrgument that the trial court completely ignored the undisputed evidentiary facts presented.
Effect of Rezoning
Plaintiffs comment that although the point is not a matter within the appeal the 1968 rezoning of Lots 9 and 10 for business purposes was relevant and the trial court properly admitted еvidence thereof over defendants’ objections. To substantiate this statement they quote from Brideau v. Grissom,
“The change in the zoning ordinance cannot operate to destroy the obligations involved in the restrictions * * *. Such change is only a factor to be considered in determining whether a change of circumstances has occurred that an equity court will not enforce the restrictions. * * * ”
They also rely upon Wolff v. Fallon,
Change in Neighborhood
As we have noted earlier, plaintiffs do not seriously contend there has been any substantial violation of the covenants within the neighborhood but rely entirely on the change — in the establishment of new businesses as well as progressively increased traffic — which has taken place on East Lincolnway to the west of Lots 9 and 10 and across the street to the rear of the southernmost lots which by provision of the covenants fronted north on Forest Drive. As a background for any discussion of the subject, it must be observed that there has been no change as such in that аdjacent area but rather a continuous development of the business district, which existed in 1946 along East Lincolnway some blocks west and has since extended eastward past the lots in issue. The testimony shows that plaintiffs were the owners of the Firebird Motel some eight blocks wеst on that street, having purchased it in 1946, and anticipated the growth of business along the highway to the east. In a somewhat similar situation the Utah court, upholding a covenant, said:
“It has been held that before a change of character in the neighborhood will vitiate a covenant in a deed it must be so great as clearly to neutralize the benefits of the restriction to a point of defeating the object and purpose of the restrictive covenant, or in other words the change required to afford relief is where the change is such as to render the covenant valueless. If the change in neighborhood makes the restriction valueless so its object and purpose cannot be carried out, then it should not be enforced, but in the instant case the restrictive elapse was imposed bеcause of the change already in process and as contemplated by the parties in 1956. Therefore the change in the commercial growth of the area made the object and purpose of the restrictive covenant more valuable to the defendants which destroys the force of plaintiff’s argument and authorities. * * *” Metropolitan Investment Company v. Sine,14 Utah 2d 36 ,376 P.2d 940 , 943-944.
However, even if we could assume ar-guendo that the extension of the business in this case was a change of neighborhood in the area where such businesses are conducted rather than development, no author-ites are presented as holding that the encroachment of business on one side of a relatively large residential subdivision protected by a restrictive covenant brings about such a substantial chаnge that the original purpose of the covenant can no longer be accomplished. To the contrary is another section of the same encyclopedic reference cited by plaintiffs:
“Generally speaking, in determining whether there has been such a change of conditions as to warrant a refusal to enforce, or a cancellation of, restrictions, the court gives greater weight to the changes occurring within the restricted area than to those occurring without the area. Changed conditions outside the restricted area must not be permitted to terminate the restrictions where this would cause property owners within the restricted area to suffer damage. * * *” 20 Am.Jur.2d Covenants § 284.
Courts of neighboring states have spoken on the subject. In Hogue v. Dreeszen,
* * The area to the north, east, and south is unrestricted and businessesof various kinds have been established thereоn; but these changes, outside the restricted area, do not defeat the purposes of the restrictions. * * *”
Similarly courts have frequently declined to nullify restrictive covenants on residential property because of increase of traffic and attendant cоmmotion on a thoroughfare running alongside the protected area. Finley v. Batsel,
Standing in Equity
It is elementary that good faith and justified relief from hardship constitute the essence of equity which should be accorded in the conscience of the court. Aside from the other аspects of the case which we have discussed, we observe no showing of plaintiffs by pleading or proof that would warrant an extension to them of relief in equity. By their own allegations and evidence, being fully aware of the covenants, they bought the property in issue as a speculation for a figure far less than its value for business purposes. They have failed to present any factor which would warrant a court of equity in granting relief. Although defendants’ second defense that the complaint failed to state a claim might well havе been utilized by the trial court as basis for denying plaintiffs the requested relief, the judgment as issued was equally proper.
Affirmed.
Notes
. These lots were for the most part restricted to single-family residences although provision was made in certain blocks for multiple dwellings for not more than fоur families.
. In evidence was a copy of the minutes of the meeting at which the ordinance was adopted, reading in part:
“The Council informed Mr. and Mrs. Fox that it was their intention to clear this matter for once and for all by this action and not have it return periodically to the Council as it has been done in the past. They stated it was their intention to clear any obstacle preventing Mr. Fox from taking court action with respect to the protective covenants and that they would not issue a building permit for construction on the premisеs until Mr. Fox had taken this action; that if he did not take such action within a reasonable time, theywould entertain application by any resident of the area to again rezone the lots to Residence ‘A.’ The Council directed that findings of fact and conclusions of law on this matter be appended to these minutes as an exhibit.”