## Facts

- Six adjacent lots on a dead-end street in Queens were subject to a 1908 restrictive covenant limiting use to “one private residence” and barring specified nonresidential structures and uses.
- The plaintiffs owned and lived in a single-family home on one of the restricted corner lots; the surrounding area was primarily one-family residential with limited, longstanding multifamily development.
- A synagogue on nearby unrestricted land acquired one restricted vacant lot and used it as a paved, lighted parking lot; the plaintiffs did not sue to stop that use, aside from minor complaints addressed by the synagogue.
- The defendant, an Orthodox Jewish religious school, purchased a restricted lot with actual knowledge of the covenant and the plaintiffs’ intention to enforce it, and began operating a school in a building used as a private residence.
- After the school opened, the plaintiffs complained of student congregating and street activity near the property and of refuse left at the curb beyond collection times.
- During the litigation, the school purchased an additional restricted lot for planned expansion.
- The trial court found the covenant’s residential purpose remained viable, that a school use would harm residential character and property values, and enjoined operation of the school on the restricted lots.

## Issues

1. Whether enforcing a private residential-use restrictive covenant to enjoin operation of a religious school violates constitutional guarantees of religious freedom.
2. Whether enforcement should be denied on equitable defenses such as changed neighborhood conditions, waiver, acquiescence, abandonment, or laches based on tolerated nonconforming use of one restricted lot as a parking lot.

## Decision

- The Appellate Division affirmed the injunction enforcing the restrictive covenant and barring operation of the religious school on the restricted lots.
- The court held that enforcement of the private covenant against the school did not violate state or federal constitutional protections for religious exercise.
- The court rejected defenses that the covenant had been nullified by changed conditions or by the plaintiffs’ failure to challenge the parking-lot use of a restricted lot.

## Legal Principles

- A clear residential-use restrictive covenant is an enforceable property right in equity against a purchaser with notice, including religious institutions, unless equitable grounds require nonenforcement.
- Enforcement of a private covenant is distinct from governmental land-use regulation; constitutional scrutiny applicable to zoning restrictions does not automatically bar judicial enforcement of privately created servitudes.
- A restriction limited to a small number of lots, leaving alternative locations available, is less likely to constitute a constitutionally cognizable prohibition of religious exercise when the burden results from a voluntary purchase with notice.
- Changed-conditions doctrine requires a substantial alteration that defeats the covenant’s original residential purpose; limited or longstanding nearby nonconforming uses do not alone render the covenant obsolete.
- Tolerating a comparatively limited nonresidential use (such as a parking lot) does not necessarily waive or abandon the covenant as to a materially different, more intensive use (such as a school) that would significantly impair residential character and property values.

## Conclusion

The court enforced a longstanding “one private residence” covenant to enjoin a religious school’s operation on restricted lots, holding that the school’s free-exercise claim did not bar enforcement and that neither neighborhood conditions nor the plaintiffs’ tolerance of a parking-lot use established waiver, abandonment, or obsolescence of the covenant.


Ginsberg v. Yeshiva of Far Rockaway, 45 A.D.2d 334, 358 N.Y.S.2d 477 (App. Div. 2d Dep’t 1974)