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Present:    All the Justices
CHESTERFIELD MEADOWS SHOPPING CENTER
ASSOCIATES, L.P., ET AL.
OPINION BY
v.    Record No.  012519                                                 JUSTICE LAWRENCE L. KOONTZ, JR.
                                                                         September  13,  2002
A. DALE SMITH
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
In this appeal, we consider whether the chancellor
correctly determined that a change in conditions rendered a
restrictive covenant on the use of land null and void.
BACKGROUND
This is the second time that the validity of the
restrictive covenant under consideration has been the subject of
an appeal before this Court.    In Smith v. Chesterfield Meadows
Shopping Center,  259 Va.  82,  86,  523 S.E.2d  834,  836  (2000), we
reversed the chancellor’s judgment sustaining a demurrer and
remanded the case for further proceedings.    The present appeal
arises from those proceedings.    Most of the pertinent facts, but
not all, are either stipulated or undisputed by the parties.
In  1979, Judge Ernest P. Gates and his wife, Virginia Y.
Gates  (“the Gates”) owned and occupied an historic home known as
“Wrexham Hall” located on a  5.5-acre tract on the south side of
Centralia Road at its intersection with State Route  10 in
Chesterfield County.    Richard M. Allen owned an undeveloped




tract, consisting of approximately  5.5 acres, on the north side
of Centralia Road directly opposite from the Gates’ property.
On April  17,  1980, Allen and the Gates executed a
restrictive covenant affecting Allen’s property.    This covenant
provided that Allen’s property was to be  “used only for the
purposes mentioned and allowed by the Special Conditional Use
Permit granted by the Board of Supervisors on November  28,  1979,
in case  #  79S101A for an office complex as reflected in the
official minutes of the meeting.”    This covenant purportedly
would run with the land for a period of sixty years from the
date of the covenant.    On July  14,  1980, Allen recorded this
covenant in the land records of Chesterfield County.
Thereafter, Allen conveyed approximately  2 acres of his
property to Centralia Associates by deed dated December  30,
1980.    Centralia Associates then conveyed this acreage to
A. Dale Smith by deed dated January  13,  1981.    Both deeds were
recorded in the land records of Chesterfield County on January
26,  1981.
On February  28,  1985, the Gates conveyed their property to
Pioneer Financial Corporation subject to a restrictive covenant
requiring that Wrexham Hall remain on the property or be
relocated to  “another residential location.”    Subsequently,
Wrexham Hall was appropriately relocated, and its former site
was rezoned to  “Commercial” use.    Pioneer conveyed a portion of
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the property to Chesterfield Meadows Shopping Center Associates,
L.P. and Ukrop’s Super Markets, Inc.  (collectively
“Chesterfield”).1    Chesterfield constructed a shopping center on
its property.
On February  26,  1996, Smith entered into a letter of intent
with Trion Ventures, L.C. for the sale of her property.    Trion
Ventures planned to build a Walgreen’s drug store on the
property.    On April  23,  1997, the Chesterfield County Board of
Supervisors approved the rezoning of Smith’s property from
“Agricultural” to  “Neighborhood Business,” which would have
permitted the proposed development of the drug store to go
forward.
Smith sought an agreement from Chesterfield to release the
restrictive covenant and allow the commercial development of her
property.    In a letter dated April  9,  1998, Chesterfield advised
Smith that it would not agree with her to release the
restrictive covenant.
On June  24,  1998, Smith and Allen, whose retained portion
of the property had been rezoned for commercial development,
filed a bill of complaint in the Circuit Court of Chesterfield
County, pursuant to Code  §  55-153, seeking to have the April  17,
1 Another portion of the property was conveyed to Taco Bell
Corporation.    That corporation, however, is not a party to this
appeal.
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1980 restrictive covenant declared void.    The bill of complaint
alleged that the restrictive covenant was  “intended to protect
the historical nature of Wrexham  [Hall]” and that changed
conditions warranted that the covenant be declared void.
Following our remand in the first appeal, Allen, who had
sold his retained portion of the property, withdrew from the
action.    On April  21,  2000, Smith filed an amended bill of
complaint, alleging that the restrictive covenant was intended
to protect from commercial development not only Wrexham Hall,
“but also the area near the historic Chesterfield Courthouse” in
the vicinity of Wrexham Hall.2
An ore tenus hearing was held on April  2,  2001.    In
addition to the stipulation of the above recited facts and
various exhibits, the chancellor received the testimony of
several witnesses.    Judge Gates testified that he initially
objected to the  1979 rezoning of Allen’s property and the
2 Smith further alleged that the restrictive covenant was
personal only because there was no horizontal privity between
the Gates and Allen when the covenant was created and, thus,
Chesterfield could not enforce the covenant as the Gates’
successor-in-interest.    The chancellor did not reach this issue,
and Smith has not raised it as an alternative basis for
upholding the chancellor’s judgment.    Accordingly, we express no
opinion on the issue.    We note, however, that the enforceability
of a restrictive covenant to the benefit or burden of remote
successors-in-interest is subject to strict elements of proof,
including proof of horizontal privity between the original
parties to the covenant.    See Sonoma Development, Inc. v.
Miller,  258 Va.  163,  167 and n.3,  515 S.E.2d  577,  579 and n.3
(1999).
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granting of a special use permit for an office complex, but
ultimately agreed to support Allen’s request for that rezoning
if Allen would agree to execute the restrictive covenant.    He
explained that the use of Allen’s property for an office complex
would conform to the use of other properties in the vicinity of
Wrexham Hall and other historic buildings nearby.
Judge Gates further testified that he objected to the
commercial development of Allen’s property because he  “wanted to
protect Wrexham  [Hall].”    When asked on cross examination
whether he would agree that his purpose in obtaining Allen’s
agreement to the covenant was not focused solely on Wrexham
Hall, but rather on the entire vicinity, he replied that  “I
would like to think it was, but I’m not sure.    I think primarily
my interest was  [in] Wrexham  [Hall], because that’s what I owned
and it was something I wanted to protect.”    Allen also testified
that he had agreed to the covenant to resolve Judge Gates’
objection to his rezoning request.
During Smith’s testimony at the hearing, a video tape was
played reflecting the extensive commercial development which has
occurred since  1979 along Route  10 in the vicinity of Wrexham
Hall’s prior location.    In addition to Chesterfield’s shopping
center and another shopping center, that development included,
among other uses, several banks, service stations, a drug store,
two grocery stores, and five fast-food restaurants.
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In an opinion letter dated July  31,  2001, the chancellor,
relying particularly upon the testimony of Judge Gates, found
that the primary purpose of the  1979 restrictive covenant was to
protect Wrexham Hall against commercial development of property
in the area in which it was then located and  “to some extent” to
protect one other historic property.    After noting that Wrexham
Hall had been relocated and replaced by Chesterfield’s shopping
center, the chancellor further found that much of the
surrounding area had been  “transformed  [from] once serene
farmland, to a thriving commercial area.”    Based upon this
change in local conditions, the chancellor concluded that  “the
essential objects and purposes of the  [covenant] are practically
destroyed, and the covenant is null and void.”3
On August  13,  2001, the chancellor entered a final decree
of judgment for Smith, incorporating by reference the findings
of fact and conclusions of law as stated in the July  31,  2001
opinion letter.    By order dated February  25,  2002, we awarded
Chesterfield this appeal.
3 The chancellor further concluded that Smith was not barred
by estoppel, laches, or the doctrine of unclean hands in seeking
relief in equity, as Chesterfield had contended.    We agree with
the chancellor’s judgment on these issues and, in light of our
view of the dispositive issue in this appeal, need not address
further Chesterfield’s assignment of error thereto.
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DISCUSSION
We begin our analysis using well established principles of
appellate review.                                                    “When the chancellor hears evidence ore
tenus, his decree is entitled to the same weight as a jury
verdict, and we are bound by the chancellor’s findings of fact
unless they are plainly wrong or without evidence to support
them.”    Hoffman Family, L.L.C. v. Mill Two Associates
Partnership,  259 Va.  685,  696,  529 S.E.2d  318,  325  (2000).
In our prior review of this case, we concluded that the
covenant between the Gates and Allen was  “silent as to  [its]
purpose” and, thus,  “the introduction of evidence on that
subject  [was not prohibited], since such evidence would not be
considered a factual allegation contradicted by the terms of the
document.”    Smith,  259 Va. at  85,  523 S.E.2d at  836.
Nonetheless, Chesterfield contends that the chancellor erred in
determining that the purpose of the restrictive covenant was
other than as  “stated on the face of the covenant.”    In support
of this contention, Chesterfield points to Allen’s admitted
motivation to gain the Gates’ support for his request to obtain
a special use permit.4    Thus, Chesterfield concludes that,
regardless of the Gates’ motivation, the purpose of the
4 The Board of Supervisors made the creation of the
restrictive covenant a condition of the rezoning of Allen’s
property and the granting of the special use permit in  1979.
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restrictive covenant was to restrict the use of Allen’s property
to office development and  “not  [for] some broader purpose
relating to preservation of Wrexham  [Hall] or any other
property.”    We disagree.
“Valid covenants restricting the free use of land, although
widely used, are not favored and must be strictly construed
.    Substantial doubt or ambiguity is to be resolved
against the restrictions and in favor of the free use of
property.”    Woodward v. Morgan,  252 Va.  135,  138,  475 S.E.2d
808,  810  (1996).    The restrictive covenant here did not provide
reciprocal benefits to the Gates’ property and to Allen’s
property.    Whatever Allen’s motivation for agreeing to the
covenant may have been, the covenant placed a significant burden
on the use of his property by Allen and by Smith, Allen’s
successor-in-interest, by restricting commercial use of the
property.    Judge Gates testified that such a restriction would
benefit his property.    Accordingly, we are of opinion that the
chancellor quite properly gave greater weight to the testimony
of Judge Gates, a party who received the direct benefit of the
restrictive covenant, in determining that the purpose of the
covenant was the protection of Wrexham Hall and another historic
property in the immediate vicinity.
Chesterfield next contends that the chancellor erred in
awarding relief  “based upon facts which are at variance with
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plaintiff’s pleadings.”    Chesterfield asserts that the
chancellor’s finding that the purpose of the restrictive
covenant was limited to protecting only Wrexham Hall and one
other property is contrary to Smith’s assertion in the amended
bill of complaint that the Gates were concerned with the
preservation of a much broader area surrounding their property
and, thus, cannot support a judgment in her favor.    Again, we
disagree.
The cases Chesterfield cites in support of this proposition
are all inapposite to the facts of this case.    In each of those
cases, the facts pled did not support the legal theory for the
judgment sought or rendered.    See, e.g., Ted Lansing Supply Co.
v. Royal Aluminum,  221 Va.  1139,  1142,  277 S.E.2d  228,  230
(1981)  (judgment founded upon implied warranty could not be
rendered where only express warranty was pled).    Here, by
contrast, the legal theory under which Smith sought relief was
applicable both to the facts as pled, and the more limited view
of the facts actually proved as found by the chancellor.    So
long as those facts were sufficient to support the legal theory
of the relief sought, the chancellor did not err in awarding
that relief.
Finally, we turn to Chesterfield’s contention that the
chancellor erred in concluding that Smith carried her burden to
prove that changed conditions have defeated the purpose of the
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restrictive covenant rendering it null and void.    The
determination of the degree of change necessary to have this
effect is inherently a fact-specific analysis in each case.
However, we have previously made it clear that such a change
“must be so radical as practically to destroy the essential
objects and purposes of the  [covenant].”    Booker v. Old Dominion
Land Co.,  188 Va.  143,  148,  49 S.E.2d  314,  317  (1948).
The undisputed facts in the record clearly support the
chancellor’s conclusion that the area surrounding the former
location of Wrexham Hall had been  “transformed  [from] once
serene farm land, to a thriving commercial area.”    Such a
radical change satisfies the standard articulated in Booker and
its progeny, and we are unable seriously to entertain the notion
that any purpose consistent with the covenant would be served by
permitting the restriction imposed thereby on the use of Smith’s
property to continue.    Accordingly, we hold that the chancellor
did not err in ruling that Smith established the necessary
change in conditions to destroy the purpose of the covenant.
CONCLUSION
For these reasons, we will affirm the judgment of the
chancellor declaring the restrictive covenant agreement between
the Gates and Allen to be null and void.
Affirmed.
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