Barrett

In this appeal we consider whether a restrictive covenant initially recorded in 1964 and which limits the use of each lot in a subdivision to one single family dwelling has continued viability after the enactment in 1978 of Health and Safety Code section 1566.5. The order at issue in this appeal is one modifying a permanent injunction to allow defendants Ralph and Bessie Lipscomb (the Lipscombs) and Real Party in Interest Dr. June Abts (Dr. Abts) to operate a small commercial residential care facility on real property subject to a restrictive covenant limiting use of the property to “private residences.”

Plaintiffs Jerome Barrett and other property owners in the same subdivision together with intervener contend (1) the court erred in applying section 1566.5 retroactively and (2) the restrictive covenant does not violate constitutional proscriptions against age discrimination or the right of privacy. These contentions have merit. We shall reverse the order modifying the injunction.

Factual and Procedural Background

In June 1964, the owners of Ramada Acres Subdivision in Chico, California, recorded a subdivision map for the property along with a “Declaration of…