03-16-1978 Council Minutes - Laserfiche WebLink

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' ' RT�'GULAR 27EETIIJG OF THF ORONO CC'_iNCIL, P�RCH 16 , 1978 Page 11 or to grant rights to persons in whose favor it is r�ot clearly shown such restrictions are to apply. Doubt will be resolved in favor of the unrestricted use of pro�erty, so that where the languase of a restrictive coverant is capable of two constructions, tne one that limits, rather than the one which extends it, should be adopted, and that construction should be embraced which least restricts the free use of land. 20 Am. Jr. 2d, Covenants, Conditions and Restrictions, �187. This rule is announced and follovred in two major f�;innesota cases involving eouitable enforcement of restrictive covenants. Rose v. Kenneseth Israel Congreaation 228 t�inn. 240, 36 N.W. 2d 791 (]949) and t�fission Covenant Church v. Nelson 253 Minn. 230, 9l N.W. 2d 440 (1958). In the . latter case, the Court says, "in determining this question we must keep in mind a rule frequently enunciated in this state to the effect that inasmuch as the law leans in favor of the unrestricted use of property a strained construction will not be adopted in favor of restrictions. " Nission, supra, at 233. See also Dun. Dig. (3rd Ed. ) �2393. � It does not aid the restrictions or the interpretation of them that they rr�ay be viewed as a benefit to the affected properties, The rule that a restriction upon the use of land renders the title unrr�arketable applies without reference to the beneficial purpose of the restriction. It is no defense to show by the opinion of experts that the value of the property is not diminished by the restrictions. 77 Am. Jur. 2d. Vendor and Purchaser, §210. And in Patton on Titles (First Ed. ) �348, the author states: Theoretically, at least, all these clauses [restrictive covenants] are fetters on the freedom of sale of real estate as an article of commerce; those imposing conditions are further affected by � - . the equitable objection to the penalties and forfeitures which may result. They are therefore strictly construed, and any doubts are resolved against them. There being nothing before the Council which even tends to establish that the Declaration of Restrictive Covenants for Walters Port deprives the individual lot owners of the right to maintain and improve their property including the lagoon frontages, the Council should proceed to act on the merits of the pending applications. It is not the responsibility of the Council to resolve private disputes between property owners; indeed the Council would prohably be remiss if it attempted to do so. The Council properly placed the burden upon the opponents to establish that the rights norrrally incidental to property ownership are negated by the covenants. If this burden (Continued)