Present:    All the Justices

A. DALE SMITH, ET AL.

v.   Record No. 990164    OPINION BY JUSTICE ELIZABETH B. LACY
                                     January 14, 2000
CHESTERFIELD MEADOWS SHOPPING
CENTER ASSOCIATES, L.P., ET AL.

            FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                      William R. Shelton, Judge

      A. Dale Smith and Richard M. Allen appeal the trial

court's judgment sustaining    a demurrer dismissing their bill

of complaint seeking to have a restrictive covenant declared

null and void.    Finding that the pleadings were sufficient to

state a cause of action, we will reverse the judgment of the

trial court.

      In 1979, Allen owned approximately 5.5 acres of land on

the north side of Centralia Road at its intersection with

State Route 10 in Chesterfield County.    He sought and obtained

a rezoning of the parcel to Agricultural (A) with a

conditional use permit to build an office complex.    Ernest P.

Gates and Virginia Y. Gates (the Gates) owned a 5.5-acre tract

on the south side of Centralia Road at that intersection.   The

Gates' home, known as "Wrexham," was located on their

property.

      On July 14, 1980, Allen and the Gates executed a

restrictive covenant affecting Allen's property.    Under the

covenant, Allen's land 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."     The covenant was to run

with the land for a period of sixty years from the date of the

covenant and it was recorded in the land records of

Chesterfield County.

     The Wrexham structure subsequently was relocated, the

Gates' property was rezoned to "Commercial" use, a portion was

sold to Chesterfield Meadows Shopping Center Associates, L.P.,

and Ukrop's Super Markets, Inc. (collectively "Chesterfield"),

and the Chesterfield Meadows Shopping Center was constructed

on the property.   Allen's property was subsequently rezoned

from Agricultural (A) to "Neighborhood Business" and a portion

of the tract was sold to Smith.

     On June 24, 1998, Smith and Allen filed a bill of

complaint in the court below, pursuant to Code § 55-153,

seeking to have the restrictive covenant declared void.

Chesterfield filed a demurrer, which the trial court sustained

by order entered on October 1, 1998.    Smith and Allen were

given 21 days from the date of entry of the order to amend

their bill of complaint.   On October 29, Allen and Smith filed

a motion for nonsuit which the trial court granted on November

2, 1998.   Chesterfield filed a motion to vacate the court's


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order of nonsuit, which was granted on November 23, 1998,

based on the court's finding that it "lost jurisdiction on

October 22, 1998 because no Amended Bill of Complaint had been

filed or other Order entered."    We awarded Smith and Allen

this appeal.

     Smith and Allen argue that the trial court erred in

sustaining Chesterfield's demurrer because their bill of

complaint adequately stated a cause of action.      In a cause of

action to have a restrictive covenant declared void, a party

must prove that changed conditions have defeated the purpose

of the restrictions, and the change must be "so radical as

practically to destroy the essential objects and purposes of

the agreement."   Booker v. Old Dominion Land Co., 188 Va. 143,

148, 49 S.E.2d 314, 317 (1948).       Smith and Allen assert that

the allegations contained in the bill of complaint that "[t]he

restriction was intended to protect the historical nature of

Wrexham," that the Wrexham structure had been relocated, and

that the entire property upon which Wrexham was located is now

zoned commercial and a shopping center has been built on the

property, were sufficient to state a cause of action for

declaring a restrictive covenant void.

     Chesterfield responds first that our holding in Ward's

Equipment, Inc. v. New Holland North America, Inc., 254 Va.

379, 493 S.E.2d 516 (1997), bars consideration of Smith and


                                  3
Allen's allegations that the purpose of the restrictive

covenant was to protect the Wrexham structure.   In Ward's

Equipment, we held that factual allegations contradicted by

the terms of authentic, unambiguous documents that are a part

of the pleading may be disregarded by a court in considering a

demurrer.   Id. at 382, 493 S.E.2d 518.   Chesterfield argues

that the restrictive covenant, which was attached to the

pleading, stated that "it is the desire of the parties hereto

to restrict the land containing 5.523 acres in accordance with

conditions imposed by the Board of Supervisors of Chesterfield

County in case #79S101A."   This statement, according to

Chesterfield, is an unambiguous statement of the purpose of

the restrictive covenant.   Therefore, Chesterfield contends,

Smith and Allen's argument that the purpose of the covenant

was to preserve the Wrexham structure is a factual allegation

in contradiction of the unambiguous covenant document, and is

barred by the doctrine recognized by Ward's Equipment.      We

disagree.

     The language quoted above from the restrictive covenant

does not address the purpose of the covenant.    Rather, the

language describes the actual restriction that was imposed

upon the land.   The purpose of the covenant, namely, the

reason why the parties chose to impose the restriction on the

land, is not set forth in the document itself.   Because the


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document is silent as to the purpose of the restrictive

covenant, the rule in Ward's Equipment does not prohibit the

introduction of evidence on that subject, since such evidence

would not be considered a factual allegation contradicted by

the terms of the document.

     Next, relying on Hechler Chevrolet v. General Motors

Corp., 230 Va. 396, 337 S.E.2d 744 (1985), Chesterfield

asserts that the introduction of evidence that the covenant

was created to protect the Wrexham structure is barred by the

parol evidence rule.   In Hechler, parol evidence was not

allowed to show prior dealings between the parties because

there was no allegation that the contract in question was

incomplete or ambiguous.     Id. at 403, 337 S.E.2d at 749.   In

the instant case, Smith and Allen allege that the purpose of

the restrictive covenant was not contained within the

document, and that extrinsic evidence is needed to determine

the reason for imposing restrictions on the land.    In light of

these allegations, we hold that the parol evidence rule does

not bar extrinsic evidence of the purpose of the covenant in

this case.

     Finally, Chesterfield argues that the bill of complaint

fails to allege sufficiently changed circumstances to support

nullification of the restrictive covenant.    According to

Chesterfield, allegations that an historical house has been


                                  5
relocated and a shopping center has been constructed in its

place alone are insufficient to establish the type of change

which would "destroy the essential objects and purposes" of

the restrictive covenant.

     Considering these allegations in the light most favorable

to the plaintiffs, which we must when considering a demurrer,

W.S. Carnes, Inc. v. Chesterfield County, 252 Va. 377, 384,

478 S.E.2d 295, 300 (1996), we cannot say they are

insufficient as a matter of law.   The fact that the pleadings

discuss changes to only a single property does not defeat the

cause of action at the demurrer stage in the proceedings.

     For the above reasons, we conclude that Smith and Allen's

bill of complaint stated a cause of action.      Accordingly, we

will reverse the trial court's order sustaining the demurrer

and remand the case for further proceedings. *

                                          Reversed and remanded.




     *
       Because we are reversing the trial court's order
sustaining the demurrer, we do not reach the remaining
assignments of error pertaining to nonsuit.

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