McGeehan, Smalley and Haneman. Haneman, J.s.c.
On April 15, 1947, Byrnes Realty Company (hereafter referred to as Byrnes), was the owner of 34 acres of land in the City of Linden, New Jersey, having a frontage of 2,093 feet on State Highway No. 25. Under the zoning ordinance of the City of Linden then in effect, said property was zoned for business and two-family residences. The said Byrnes, conceiving that because of the location of the property, it had become unsuitable for residences or normal business purposes, and that for its most efficient utilization it should be used for light industry, applied to said City of Linden to change its zoning ordinance. The City of Linden agreed that if certain specific restrictive covenants that would run with the land were voluntarily created by said Byrnes it would amend the zoning ordinance to the end that the use of the property for light industry would be permitted.
On April 15, 1947, Byrnes executed a "covenant and agreement" under the terms of which it provided generally: (1) no building should be constructed closer than 75 feet from
State Highway No. 25; (2) in the event any other streets are dedicated in said tract, every building should be set back no less than 50 feet from the building line on said street; (3) any buildings constructed upon said tract should have the front facing the public street finished with stone, finished brick, terra cotta, glass, finished metal or finished plastic, or a combination of such materials, and that if the side of said building be so constructed that it shall face upon a public street, that side shall as well be constructed of similar materials; (4) the provisions of the foregoing provision No. 3 shall not apply to buildings constructed in the rear of any such building; (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"; (6) in the event that the above described premises should be divided and portions thereof sold, so that portions of said lands should come to be owned by two or more separate owners, then to a depth of 150 feet from the northerly line of the right-of-way of State Highway No. 25 no building or part of any building should be constructed closer than 12 1/2 feet to the sideline boundary between portions of said lands owned by separate owners; (7) the covenants and restrictions should become effective as and when the above described lands should be reclassified so that the same should come within and be subject to the provisions of the light industrial district of the zoning ordinance, 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."
(8) "these covenants and restrictions shall run with the land and shall bind Byrnes Realty Company and its successors and its grantees of all or any portion or portions of the above described lands and premises for the period aforesaid; provided, that if Byrnes Realty Company and/or its successors shall sell and convey any portion or all of said lands and premises and a grantee or grantees shall violate said covenants and restrictions, then the respective grantee or grantees who shall violate said covenants and restrictions shall alone be liable in damages and Byrnes Realty Company and any other grantor shall not be liable in damages for the violation of such covenants and restrictions by such grantee or grantees."
The City of Linden did thereupon amend its zoning ordinance as theretofore agreed.
On March 29, 1948, Byrnes conveyed the entire tract to Industrial Land Corporation, subject to said covenants and restrictions. On the same date, Industrial Land Corporation conveyed the entire tract to Macner Realty Company (hereafter referred to as Macner), subject to the said covenants and restrictions.
On July 1, 1949, one Morton Sand, agent and representative of the plaintiff, which was desirous of constructing what it termed a modern type of mammoth gasoline station, approached said Macner with a view of purchasing 300 feet of frontage on said State Highway No. 25. Sand represented that the plaintiff would be interested in said purchase only if the restriction designated No. 5 above were modified so that plaintiff would not be obliged to use the said 75 feet adjacent to said highway as there provided, but could use it for the purpose of a gasoline station. Said Sand was desirous that said restrictions continue in effect on the balance of the
1,793 feet of frontage in order that it not have competition in the immediate vicinity.
Thereafter Macner, still being the owner of the entire tract, applied to the City of Linden, and upon receiving its consent, executed a supplemental "covenant and agreement" dated July 19, 1949, reaffirming all of the provisions of the prior agreement dated April 15, 1947, but releasing the 300 feet above referred to from the provisions in paragraph 5, insofar as the same provided as follows: "That the 75' setback area shall be seeded and suitably planted and that the driveways and parking space in said area shall not exceed 50% thereof." This agreement included an additional provision, which reads as follows:
"3. The foregoing premises shall also be subject to the further restriction and covenant and the same shall not be used as a truck terminal and shall not be used as a place where vehicles are to be permitted to park or remain for a period longer than required for the servicing of such vehicles in the usual course of business of a gasoline service station."
On August 1, 1949, the said Macner conveyed to Morton Sand the property now owned by the plaintiff, which was eventually conveyed to the plaintiff, both of which conveyances were subject to the covenants and restrictions ...