Just in case there are any City officials unaware of this, in rezoning property, any restrictive covenants, including those between two private parties, must be disclosed to the Planning Commission.
Here is the relevant document, found on the City's website:
Planning Commission Checklist for Rezoning Decisions
As indicated in Alderman's Open Records Request Yields Key Forest Hill Legal Documents and Minutes from BMA Meeting Help Derail Zoning Changes, Aldermen Barzizza and Massey both had to make requests of the City just to discover 1) the mere existence of a covenant between the neighbors and Ruleman in early 2006 and 2) minutes of the 2006 BMA meeting where the covenant was discussed.
The covenant on the Forest Hill Reaves property was deemed "theoretical" by the Director of Economic Development, apparently without asking a City attorney, and was not disclosed to the aldermen. Obviously the determination on whether a covenant is enforceable or not should be done with a thorough search of the files, and made by an attorney.
How can anyone argue that this information should not be disclosed to the aldermen before voting on the first two readings of the rezoning? Although the enforceabilty of the covenant may be contested by the developer, that is no excuse for failure to disclose the covenant.
And, even if the City Attorney gave an opinion that the covenant was not enforceable (and I have seen nothing that indicates that he has given such an opinion), the covenant should have been disclosed. It was a promise to the citizens, who had every reason to believe that the agreement that they were entering into eleven years ago was made in good faith. How could a promise to the citizens, read into the minutes of a BMA meeting, be deemed irrelevant? And, it really isn't the City employee that should determine the relevance in any case. The City employee should give the Planning Commission all information, and the Planning Commission and the BMA should decide its relevance.
I have seen the argument made that if a covenant is deemed to be between two private parties, it need not be disclosed to the City officials who vote on a project. As you can see by the document above, any restrictive covenant must be disclosed to the Planning Commission. Obviously, the elected officials who vote on the rezoning should have been informed of the covenant.