Plaintiff, Houston Petroleum Co., a corporation, by this action seeks injunction and specific performance of an agreement creating covenants restricting the use of property in the City of Linden. The matter is before me on final hearing.
Lotta D. Byrnes and others, trading as Byrnes Realty Company, the owners of a large tract of land situate in Linden, on April 15, 1947, entered into an agreement with the City of Linden imposing covenants and restrictions upon said lands. The property consisted of approximately 34 acres in area and fronted on New Jersey State Highway Route No. 25 for a distance of about 2,000 feet.
The portion of the provisions of said agreement here pertinent reads:
"5. When any building shall be constructed upon any portion of said lands and premises, the owner of the portion of the land on which such building is constructed shall cause that portion of said land owned by him and lying between the Northerly line of the right-of-way of State Highway No. 25 and the seventy-five (75) foot setback line hereinbefore provided for to be seeded and suitably planted, excepting, however,
such part of said area (not to exceed fifty (50%) per cent thereof) as shall be constructed as and used for driveways and parking space."
These covenants and restrictions were to become effective as and when the above described lands and premises are reclassified so that the same shall come within and be subject to the provisions of section 6-E (light industrial district) of the zoning ordinance of the City of Linden, and shall continue in force and effect so long as said premises shall be zoned and used for light industry, subject to the following limitations:
"(a) Said covenants and restrictions may be released or modified at any time by agreement in writing between the City of Linden and the owner or owners of all or all portions of said lands and premises.
"(b) Said covenants and restrictions shall terminate on April 1, 1977."
On the same day the agreement bears date it was submitted to the City Council of Linden, and a resolution authorizing the execution of the agreement was passed, after which the premises in question were rezoned and classified for light industry. The entire tract was later acquired by Macner Realty Company, and it became the common grantor of plaintiff and the defendant.
On July 1, 1949, the City of Linden modified the restriction for the Macner Realty Company with respect to a parcel of land described therein commencing 1,322.75 feet northeasterly from Woodlawn Avenue and fronting 300 feet on the highway from that portion of the restriction which required that when a building shall be constructed on any portion of the premises the owner of such premises shall cause that portion of the land lying between the line of the highway and the 75-foot setback line "to be seeded and suitably planted, excepting, however, such part of said area (not to exceed fifty (50%) per cent thereof) as shall be constructed as and used for driveways and parking space."
The agreement of July 1, 1949, modifying the restrictions provided that such requirement should not ...