Civil action. On motion for temporary injunction and counter-motion for summary judgment.
[31 NJSuper Page 331] Plaintiffs bring this action for an injunction to compel compliance with a restrictive covenant,
numbered 2 and set out below, contained in their deeds as well as in those of other owners of lots in the Greenlands Corporation tract located in Princeton Township, New Jersey. They seek restraint pendente lite. Defendants move for summary judgment dismissing the action.
Nine of the plaintiffs obtained their deeds directly from Greenlands, and six took by mesne conveyances. The covenants are ten in number and are common to all deeds in the Greenlands tract. The covenant on which plaintiffs base their action provides as follows:
"2. No building shall be erected, placed or altered on any plot until the exterior design and location thereof shall be approved in writing by the Greenlands Corporation, their successors or assigns; provided, however, that if the Greenlands Corporation, their successors or assigns, fails to approve or disapprove such design and location within thirty days after such plans have been submitted to it, or if no suit to enjoin the erection of such building or the making of such alterations has been commenced prior to the completion thereof, such approval shall not be required."
They also rely on the covenant, variously numbered 8 or 9, which reads:
"The restrictive covenants set forth herein are imposed pursuant to a general plan of improvement."
The remaining covenants provide that all lots on the Greenlands tract shall be residential and no structure shall be erected or altered other than dwellings and their customary out-buildings, to be located on a lot of minimum 7,500 square foot size, no building to exceed 2 1/2 stories or 40 feet in height; no building shall be located nearer than ten feet to any lot line, and its total area, including overhangs and covered porches, shall not exceed 40% of the lot area; no fence or wall shall exceed four feet if built within 50 feet of the lot line, or six feet if built beyond 50 feet; only buildings that have been approved under covenant No. 2 shall be used as a residence; no building materials, refuse, junk, machinery, trucks, or automobiles exceeding one passenger
car shall be kept or stored on any lot at any time, other than during the course of construction or alteration, unless stored in the dwelling approved under covenant No. 2; covenants are to run with the land until January 1, 1965, when they are to be extended automatically for ten years unless a majority of the then front-foot owners of lots agree that they be changed; and no part of the premises shall ever be used, occupied by or leased to any person not a member of the Caucasian race, domestic servants excepted. Conveyances after February 15, 1950 recite that this last restriction, included in prior deeds and imposed "as part of a general plan of improvement" of the Greenlands tract, "is included herein to the extent the same may be in any way presently valid and legally enforceable." (As to the enforceability of such covenants, see Shelley v. Kraemer , 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161, 3 A.L.R. 2 d 441 (1948); Hurd v. Hodge , 334 U.S. 24, 68 S. Ct. 847, 92 L. Ed. 1187 (1948)).
Defendant Edmund Cook and Company is engaged in the insurance and real estate brokerage business in and about Princeton, N.J. Defendant Edmund C. Cook is its president and, it is claimed, its chief stockholder. He is also the vice-president of Greenlands, the record holder of 25% of its common stock, and controls 75% of all such stock. He owns and controls less than half of the preferred stock. Defendants Savage and Kendall, trading as Savage & Kendall, a partnership, are about to purchase all the stock of Greenlands Corporation and plan to build dwellings on the 34 lots remaining in the original Greenlands tract. Traversing the tract are three streets: Rollingmead, which is completely developed, or nearly so, and Deer Path and Clover Lane, more recently opened up and dedicated as public ways, and along which the 34 lots are located.
Plaintiffs allege that during the period Greenlands and the Cook company developed and sold lots from the tract in question, defendants, through their officers and agents, represented to plaintiffs that the restrictions to be included in [31 NJSuper Page 334] their several deeds were part of a general plan of improvement of the entire tract; that such representations were made to induce plaintiffs to purchase their properties in an area that would have additional advantages by reason of said restrictions, and that plaintiffs relied on these representations in purchasing their properties. More particularly, plaintiffs claim that they were in great degree attracted by and induced to make their purchases in reliance on covenant No. 2 set out above; that Greenlands and the Cook Company, through their officers and agents, made definite representations to purchasers that Greenlands would not approve plans "unless in consonance with the character of the architecture generally prevailing and further, would not approve the placing of houses of similar design in propinquity to another house of substantially the same design;" that until the present time the intent and purpose of the plan of development, " viz , to adhere to a general, over-all plan of individualized American architecture," has been faithfully pursued. Plaintiffs represent that Greenlands and the Cook company propose to have Savage & Kendall develop the remainder of the Greenlands tract in a manner "totally dissonant with the general plan of development" on which plaintiffs relied in buying their present homes. They charge that the several defendants plan to build some 30 houses "of identical floor plan and similar exterior varying only in minor detail and trim," and that Greenlands, Cook and the Cook company have negotiated with Savage & Kendall to develop the tract in this manner -- in derogation of plaintiffs' rights -- either by outright sale, piecemeal sale of lots, or sale of the entire stock of Greenlands to Savage & Kendall. Plaintiffs claim that their properties will be greatly depreciated in value if defendants' present plan of developing the remainder of the tract is carried out. They demand judgment restraining defendants from (a) building any structure "not in character with the neighborhood, viz. , houses which are not of individualized American architecture," the plans for which have been approved by Greenlands, and (b) violating
any provision of the deeds, covenants, and agreements, "either express or implied," between ...