Burns v. Scottish Development Co. Inc.

⁶⁸⁴ KENNEY, J. Harold H. Burns, Jr. and Scott Fine appeal the Circuit Court for Baltimore County’s dismissal without prejudice of their Second Amended Complaint and its denial of their motion to alter or amend judgment. Appellants raise three issues on appeal, which we have rephrased and consolidated as two questions: 1 I. Was the trial court’s ruling on the issue of required joinder erroneous?

II

Did the trial court err in denying appellants’ motion to alter or amend judgment? For the reasons set forth below, we reverse and remand the case for further proceedings. FACTUAL BACKGROUND This case concerns a 64.6954 acre parcel of land located in Lutherville on the southwest side of Falls Church Road in Baltimore County, immediately north of Maryvale Preparatory School and south of Satre’s Lane Baptist Church and cemetery. The property is developed as a gated private community with private roads and is known as Westwicke.

Appellants and their wives own lots in the adjacent Greenwood Subdivision that adjoin the Westwicke property. When the developer of Westwicke, appellee, Scottish Development Co., Inc. (“Scottish”), submitted its plan for development of the parcel to Baltimore County for approval, appellants opposed it before both the Hearing/Zoning Officer and on appeal to the County Board of Appeals. The reasons for ⁶⁸⁵ appellants’ opposition was described in their Second Amended Complaint: [Appellants] opposed the development on the ground that the destruction of the forest and its buffer would destroy and interfere with the peace and enjoyment of their properties. [Appellants] also opposed the development on the ground that the development of Westwicke and the destruction of the forest buffer would cause sediment to flow into [nearby] Dipping Pond Run and settle in its bed, thereby causing the Run’s trout population to decrease and the water that flows therein to rise and spread laterally against, around and over the banks of the Run. [Appellants] feared and alleged, at that time, that the development would cause the flow of the waters of the Run to change and the attendant and substantial erosion of the banks of the Run, including the banks on [appellants’] real property. Appellants eventually came to an agreement with Scottish, which was memorialized in a Letter Agreement dated October 31, 1995. 2 According to the Second Amended Complaint, the Letter Agreement required Scottish to file a document entitled Declaration of Covenants, Conditions and Restrictions for Westwicke Homeowners’ Association, Inc. (the “Covenants”) in the Land Records.

In addition, the Letter Agreement was contingent upon the Board of Appeals accepting it and the Covenants as an amendment to the development plan and incorporating them into its order. This apparently was done on November 15, 1995. On June 21, 1999, appellants filed a complaint in the Circuit Court for Baltimore County claiming a number of violations of the Covenants and seeking injunctive relief. This complaint named multiple defendants, including Scottish, MacKenzie Commercial Real Estate Services, LLC (“MacKenzie”), West- ⁶⁸⁶ wicke Homeowners’ Association, Inc. (“WHA”), and a number of individuals who owned property in the Westwicke development. 3 On September 1, September 10, and October 4, 1999, different defendants 4 filed motions to dismiss the complaint, all citing failure to join an essential party.

The alleged missing and essential parties were appellants’ spouses, Margaret Bums and Susan Fine. On November 1, 1999, appellants filed an Amended Complaint, which included additional factual allegations but no new counts. On November 15 and November 16, 1999, motions to dismiss the amended complaint were filed by Scottish, Mac-Kenzie, Myo and Khin M. Thant, T. Kevin and Marla B. Carney, and Thomas J. and Jennie N. Faust. On November 18, 1999, the circuit court granted MacKenzie’s motion to dismiss the complaint.

It also granted other defendants’ ⁶⁸⁷ various motions to dismiss for nonjoinder but granted appellants leave to amend their complaint. Appellants filed a Second Amended Complaint on December 6, 1999. That complaint added Count II, which was titled “declaratory judgment” and which named appellants’ wives as defendants to the suit. This was apparently done to force the wives into the lawsuit and to set the stage for having them subsequently declared as involuntary plaintiffs.

The remaining defendants, with the exception of John M. and Andrea T. Katz and Michael J. and Karen R. Riger, filed motions to dismiss the Second Amended Complaint. 5 The court held a hearing on the motions on January 13, 2000. On January 21, 2000, the court dismissed the Second Amended Complaint without prejudice, finding: The Plaintiffs have brought this action against the named defendants as property owners. Each of the Plaintiffs hold their respective property as tenants by the entireties with their wives. However, their wives have not joined them as Plaintiffs in this action.

It is a well established principle of law that tenants by the entireties must act together when the property they own together is at issue. Specifically, the Court of Appeals of Maryland, in the case of Picking v. Yates, 265 Md. 1 , 288 A.2d 146 (1972), held that persons holding property per tout et non per my must act together with respect to that property. The Court stated, No principle is better established in our law than that tenants by the entirety, because, unlike joint tenants, they hold per tout et non per my, must act together to sell their property, to subject it to any interest or encumbrance, or to lease it. Similarly, both spouses must join in an action for damages to property which they own by the entirety not only because of the way title is held, but because Maryland may require on motion by a defendant ⁶⁸⁸ that even tenants in common be joined as plaintiffs in an action ex delicto for damage to real property, (citations omitted.) Picking, 265 Md. at 2 , 288 A.2d 146 .

The Plaintiffs seek to enforce their rights in this action as owners of property which they hold as tenants by the entireties with their wives. The Court of Appeals has clearly stated that tenants by the entireties must act together with respect to their property. Therefore, the Plaintiffs’ wives must be joined as Plaintiffs to this action, not as Defendants. The failure to do so is fatal to the complaint.

Appellants filed a motion to alter or amend judgment on January 27, 2000, in which they attempted to join Margaret Burns as a party plaintiff. 6 The court denied the motion on February 23,2000. This appeal followed. DISCUSSION Finality of Judgment As a preliminary matter, we note that the judgment in this case does not appear on the face of the record to be final with respect to all of the parties. Although appellees do not raise the issue of jurisdiction, the Court of Appeals has stated in the past that it is elementary “that parties may not by consent confer jurisdiction upon this Court or the Court of Special Appeals.” Lewis v. Lewis, 290 Md. 175, 179 , 428 A.2d 454 (1981).

Accordingly, we raise the issue of jurisdiction nostra sponte. According to appellees, the appellees in this case are: Scottish, WHA, Santiago and Marta J. Padilla, Michael and Jennifer Myers, Francis M. and Donna V. Dix, John L. Kenneally, Sudhir and Aruna Trivedi, F. Richard and M. Diana Pannoni, T. Kevin and Marla B. Carney, Myo and Khin M. Thant, Thomas J. and Jennie N. Faust, Michael J. and Karen R. Riger, Richard W. and Elaine E. Born, Francis X. and Gayle ⁶⁸⁹ Kelly, William F. and Kathy F. Simmons, William J. and Kathleen F. Callis, and Albert F. and Claire A. Grimes. On January 21, 2000, the court granted the motions to dismiss amended complaint of: Scottish, WHA, Santiago and Marta J. Padilla, Michael and Jennifer Myers, Francis M. and Donna V. Dix, John L. Kenneally, Sudhir and Arana Trivedi, F. Richard and M. Diana Pannoni, T. Kevin and Marla B. Carney, Myo and Khin M. Thant, Thomas J. and Jennie N. Faust, Richard W. and Elaine E. Born, Francis X. and Gayle Kelly, William F. and Kathy F. Simmons, William J. and Kathleen F. Callis, and Albert F. and Claire A. Grimes. Robert Bland and Teresa Kelley East are not listed as appel-lees, but their motion to dismiss the second amended complaint was granted.

Michael J. and Karen R. Riger are listed as appellees, but it appears that they did not file a motion to dismiss the second amended complaint. They did, however, raise the issue of joinder in their answer to the second amended complaint. John M. and Andrea T. Katz appear to be active defendants. They had filed an answer to the complaint alleging nonjoinder of required parties as a defense.

They had also filed a motion for summary judgment, which was denied by the court on November 18, 1999. They have filed no pleadings in response to the Amended Complaint or Second Amended Complaint, and we can find no record of either a motion dismissing them from the complaint or a default judgment against them. In addition, we have not located any pleadings filed by Barbara L. Shifflett, Robert Pollock, and Alan P. and Louise P. Hoblitzell. In the complaint, Shifflett’s address is the same as Kenneally’s, but none of Kenneally’s pleadings refer to Shifflett.

There is no indication in the record that these parties had not been served, and there is no record of default judgments having been entered against them. Rule 2-602 provides: (a) Generally. Except as provided in section (b) of this Rule, an order or other form of decision, however designated, that adjudicates fewer than all of the claims in an action ⁶⁹⁰ (whether raised by original claim, counterclaim, cross-claim, or third-party claim), or that adjudicates less than an entire claim, or that adjudicates the rights and liabilities of fewer than all the parties to the action: (1) is not a final judgment; (2) does not terminate the action as to any of the claims or any of the parties; and (3) is subject to revision at any time before the entry of a judgment that adjudicates all of the claims by and against all of the parties. (b) When allowed.

If the court expressly determines in a written order that there is no just reason for delay, it may direct in the order the entry of a final judgment: (1) as to one or more but fewer than all of the claims or parties; or (2) pursuant to Rule 2-501(e)(3), for some but less than all of the amount requested in a claim seeking money relief only. The record in this case contains no Rule 2-602(b) certification from the circuit court. Nevertheless, the Court of Appeals has previously held that Rule 2-602 will not deprive an appellate court of jurisdiction where a final judgment has been rendered but claims remain against defendants who were not served. State Highway Admin. v. Kee, 309 Md. 523, 529 , 525 A.2d 637 (1987) (citing Hardy v. Metts, 282 Md. 1 , 381 A.2d 683 (1978); Tidewater Ins.

Assocs. v. Dryden Oil Co., 42 Md.App. 415 , 401 A.2d 178 (1979)). In other words, the appellant will not be penalized for the circuit court’s lack of jurisdiction over one or more defendants. Id. Because Shifflett, Pollock, and the Hoblitzells were listed on the complaint but they have not been heard from since, we believe it is reasonable to assume, without deciding, that they were not served.

With respect to the Rigers and the Katzes, we note that the Court of Appeals has held that “an order entered on the docket pursuant to Rule .2-601, 7 and having the effect of ⁶⁹¹ terminating the case in the circuit court, is a final judgment.” Montgomery County v. Revere Nat’l Corp., 341 Md. 366, 378 , 671 A.2d 1 (1996). Although Revere concerned the circuit court’s decision on less than all of the claims in the case, we find the holding equally applicable in cases where there are multiple defendants and the court’s decision has the effect of terminating the case. We explain. A final ruling of a lower court must have three attributes: (1) the trial court must intend for the ruling to be the unqualified, final disposition of the matter; (2) the trial court must adjudicate all claims against all parties unless it acts properly according to Maryland Rule 2 — 602(b); and (3) the clerk must make a proper record in accordance with Maryland Rule 2-601.

Waller v. Maryland Nat. Bank, 332 Md. 375, 378 , 631 A.2d 447 (1993) (citing Rohrbeck v. Rohrbeck, 318 Md. 28, 41 , 566 A.2d 767 (1989)); Jenkins v. Jenkins, 112 Md.App. 390, 402 , 685 A.2d 817 , cert. denied, 344 Md. 718 , 690 A.2d 524 (1997). ⁶⁹² In its ruling on the filed motions to dismiss, the circuit court specifically stated: “The Plaintiffs’ Second Amended Complaint is hereby DISMISSED WITHOUT PREJUDICE.” (Emphasis in original.) In the docket entry, the clerk noted the file as “closed” on January 21, 2000, and then again on February 23, 2000, when the court denied appellants’ motion to alter or amend. We believe that, notwithstanding the Rigers’ and the Katzes’ failure to file motions to dismiss in this case, the court’s ruling intended and effectively served to dismiss the second amended complaint as to all parties. 8 Accordingly, we proceed to the merits of appellants’ case. Standard of Review In the instant case, the court granted various appellees’ motions to dismiss.

We note, however, that there were facts before the court beyond those alleged in the pleadings. “Pursuant to Maryland Rule 2-322(c), when a trial judge is presented with factual allegations beyond those contained in the complaint to support or oppose a motion to dismiss and the trial judge does not exclude such matters, then the motion shall be treated as one for summary judgment.” Okwa v. Harper, 360 Md. 161, 177 , 757 A.2d 118 (2000). A summary judgment motion is not a substitute for trial. Rather it is used to dispose of cases when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. The standard for appellate review of a trial court’s grant of summary judgment is whether the trial judge was legally correct in his or her rulings.

In granting a motion for summary judgment, the trial judge may not resolve factual disputes, but instead is limited to ruling on matters of law.... If any inferences may be drawn from the well-plead facts, the trial court must construe those inferences in the light most favorable to the ⁶⁹³ non-moving party. The existence of a dispute as to some non-material fact will not defeat an otherwise properly supported motion for summary judgment, but if there is evidence upon which the jury could reasonably find for the non-moving party or material facts in dispute, the grant of summary judgment is improper. Okwa, at 178, 757 A.2d 118 (citations omitted).

Appellants argue that the court erred in its ruling requiring joinder of their wives, who did not wish to be involved in the lawsuit, pursuant to Md. Rule 2-211. Their argument is twofold. They first contend that this case involved a breach of contract, and, consequently, their wives are not required to be joined as parties to the litigation. They then argue that, even if joinder were required, their wives could have been joined as involuntary parties plaintiffs to the case pursuant to Rule 2-201 and 2-211(a) and that the court failed to follow these rules.

Appellees argue that it does not matter whether the rights were contractual in nature. As tenants by the entireties with their husbands, Mrs. Bums and Mrs. Fine would always be required parties as to any litigation concerning the Covenants. In response to appellants’ second argument, they state that tenants by the entireties is a “legally-indivisible entity” and that, because appellants’ wives did not voluntarily join the suit as plaintiffs, the suit must be dismissed. Maryland Rule 2-211(a) states: (a) Persons to be joined.

Except as otherwise provided by law, a person who is subject to service of process shall be joined as a party in the action if in the person’s absence (1) complete relief cannot be accorded among those already parties, or (2) disposition of the action may impair or impede the person’s ability to protect a claimed interest relating to the subject of the action or may leave persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations by reason of the person’s claimed interest. ⁶⁹⁴ The court shall order that the person be made a party if not joined as required by this section. If the person should join as a plaintiff but refuses to do so, the person shall be made either a defendant or, in a proper case, an involuntary plaintiff. The purpose of this rule is to provide “for the compulsory joinder of necessary parties so that the case can proceed efficiently with respect to all persons having a cognizable interest in the matter and, at the end, the court can grant complete relief.” Caretti, Inc. v. Colonnade Ltd. Partnership, 104 Md.App. 131, 142 , 655 A.2d 64 (1995), cert. denied, 339 Md. 641 , 664 A.2d 885 (1995). As the Court of Appeals has recognized “[t]he primary purposes of [Rule 2-211’s] requirement that necessary parties be joined are ‘to assure that a person’s rights are not adjudicated unless that person has had his “day in court” ’ and, to prevent ‘multiplicity of litigation by assuring a determination of the entire controversy in a single proceeding.’ ” Mahan v. Mahan, 320 Md. 262, 272 , 577 A.2d 70 (1990).

The Burnses and the Fines’ Rights under the Covenants Both Mrs. Bums and Mrs. Fine were signatories to the Covenants and described therein as “Adjoining Property Owners” along with their husbands. Although the Covenants do not specifically designate how the Burnses and the Fines own their lots, it is not disputed that they own their respective properties with their husbands as tenants by the entireties. The motion court appeared to find that because the Burnses and the Fines own their respective lots as tenants by the entireties, the action could not go forward. We disagree for the reasons stated below.

Restrictive covenants that ran with the land have a dual nature. On one hand, they are property interests. The view that covenants running with the land are indeed property interests is entirely consistent with Maryland decisions. Over one hundred twenty years ago our predecessors explained that a covenant running with the land is one ⁶⁹⁵ that “must extend to the land, so that the thing required to be done will affect the quality, value, or mode of enjoying the estate conveyed, and thus constitute a condition annexed, or appurtenant to it.... ” Glenn v. Canby, 24 Md. 127, 130 (1866).

And see Pollack v. Bart, 202 Md. 172, 176 , 95 A.2d 864, 866 (1953) (“An equitable restriction on land has been held to be a property right in the person in favor of whose estate it runs or to which it is appurtenant”). We have no difficulty, therefore, in concluding that a covenant running with the land ordinarily is a compensable property interest in the condemnation context, at least to the extent it adds measurable value to the land to which it is attached. Mercantile-Safe Deposit & Trust Co. v. Baltimore, 308 Md. 627, 641 , 521 A.2d 734 (1987). On the other hand, “covenants affecting property are, even when running with the land, nonetheless contractual in nature.” Colandrea v. Wilde Lake Community Ass’n, 361 Md. 371, 395 , 761 A.2d 899 (2000).

Covenants are also interpreted much like contracts: In construing covenants, “[i]t is a cardinal principle ... that the court should be governed by the intention of the parties as it appears or is implied from the instrument itself.” Live Stock Co. v. Rendering Co., 179 Md. 117, 122 , 17 A.2d 130 (1941). The language of the instrument is properly “considered in connection with the object in view of the parties and the circumstances and conditions affecting the parties and the property----” Levy v. Dundalk Co., 177 Md. 636, 648 , 11 A.2d 476 (1940). This principle is consistent with the general law of contracts. See Anne Arundel County v. Crofton Corp., 286 Md. 666, 673 , 410 A.2d 228 (1980) (court, in construing agreement, must first determine from the language of the agreement itself, what a reasonable person in the position of the parties would have meant at the time the agreement was effectuated).

If the meaning of the instrument is not clear from its terms, “the circumstances surrounding the execution of the instrument should ⁶⁹⁶ be considered in arriving at the intention of the parties, and the apparent meaning and object of their stipulations should be gathered from all possible sources.” Live Stock Co. v. Rendering Co., supra, 179 Md. at 122 , 17 A.2d 130 . If an ambiguity is present, and if that ambiguity is not clearly resolved by resort to extrinsic evidence, the general rule in favor of the unrestricted use of property will prevail and the ambiguity in a restriction will be resolved against the party seeking its enforcement. Belleview Construction Co., Inc. v. Rugby Hall Community Ass’n, Inc., 321 Md. 152, 157-58 , 582 A.2d 493 (1990). We turn to the language of the Covenants, focusing on those provisions applicable to appellants and their wives: RECITALS C. Harold H. Bums, Jr. and Margaret V. Burns, husband and wife (hereinafter, “Burns”), and Scott Fine and Susan C. Fine, husband and wife (hereinafter, “Fine”), are the owners of certain lots in the Greenwood Subdivision adjacent to the [Westwicke] Property.

Bums and Fine are hereinafter referred to as the “Adjoining Property Owners.” Declarant [Scottish] agrees that the Adjoining Property Owners shall have the right to enforce certain Special Restrictive Covenants herein as set forth in Section 10.1.4.1 hereof, which Special Restrictive Covenants shall not be modified without the approval of the Adjoining Property Owners, as set forth in Section 11.2.1.1 hereof. The Adjoining Property Owners join in this Agreement to acknowledge their responsibilities as set forth in this Declaration as set forth in Sections 3.2, 9 10.1.4.1 and 11.2.1.1 hereof. ⁶⁹⁷ D. The application and enforcement of the provisions of this Declaration by [Scottish], its successors and assigns shall not diminish the protections afforded the Adjoining Property Owners herein nor their rights to enforce the Special Restrictive Covenants, nor the protection afforded the Forest Buffer Easement Area and its associated wetlands and streams, notably Dipping Pond Run, a Class III trout stream, nor increase the number of Lots in the Subdivision. E. [Scottish] intends by this Declaration to impose upon the Property mutually beneficial restrictions under a general plan of improvement for the benefit of all Owners (as defined below) 10 and the Adjoining Property Owners. [Scottish] intends through restrictions and special provisions set forth herein to protect the Forest Buffer Easement Area and its associated wetlands and streams, notably Dipping Pond Run, a Class III trout stream. Section 10.1.4.1 of the Covenants provides: 10.1.4.1.

Special Enforceability Provision. This Declaration shall inure to the benefit of and be enforceable by the Adjoining Property Owners against [Scottish], its successors and assigns, as to the following specific Sections only: Recital D and Sections 6.1.1, 7.2.1, 7.2.2, 7.2.3, 7.3.2, 7.8.1., 7.8.2, 9.3 and 11.2.1.1 (the Special Restrictive Covenants”). ⁶⁹⁸ This special provision as to enforceability shall remain the right of each of these individuals to enforce so long as that individual continues to own his existing lot in the adjacent subdivision. The failure of the Adjoining Property Owners to enforce any provision of this Declaration shall in no event be deemed a waiver of his continued right to enforce the Declaration thereafter. The Adjoining Property Owners each agree by execution of this document to exercise reasonable judgment in enforcing the provisions for which this Special Enforceability Provision is granted. [Emphasis supplied.] The Special Restrictive Covenants referenced in Section 10.1.4.1 are set forth below: 6.1.1 Lawn Maintenance.

Subject to the restrictions and provisions in the Forest Buffer Easement Agreement, the Declaration of Covenants and Restrictions for Buffer Zone and Sections 7.2.2 and '7.2.3 hereof, each Lot shall be kept free from rubbish and trash of any kind, clean and with lawns neatly mowed a minimum of six (6) times per growing season, so that grass and weeds do not exceed five (5") inches in height. In the event the Owner of any Lot does not properly maintain his or her Lot, [Scottish], or the Association or its employees, shall have the right to enter upon said Lot to cut and remove the grass, weeds, rubbish or trash and the Owner of any Lots so benefited [sic] shall pay reasonable charges for such services as determined by [Scottish] or the Association to its designee. 7.2 Rules, Regulations and Statements of Policy 7.2.1 Adoption. The Architectural Committee may adopt (i) rules and regulations (the “Rules and Regulations”) governing the form and content of any Plans to be submitted to the Architectural Committee for its consideration and (ii) statements of policy with respect to its approval or disapproval of the architectural styles or details, or other matters, reflected in such Plans. The Architectur ⁶⁹⁹ al Committee shall consider application for approval of plans, specifications, etc., on the basis of conformity with this Declaration and any Rules and Regulations adopted by the Architectural Committee and shall be guided by the extent to which such proposal will insure conformity with the provisions of this Declaration, based upon, among other things, the following factors: the quality of workmanship; nature and durability of materials; harmony of external design with existing structures; choice of colors; change in topography, grade elevations and/or drainage; adequacy of sediment controls with specific emphasis on the protection of the Forest Buffer Easement Area and its associated wetlands and streams, notably Dipping Pond Run, a Class III trout stream, the effect of the proposed improvements or alterations on the use, enjoyment and value of other neighboring properties, views from adjacent or neighboring properties; and general suitability relative to the surrounding area. 7.2.2 Limitation on Clearing of Lots.

No more than an aggregate total of 10,000 square feet on each Lot may be cleared without the express written authorization of the Architectural Committee. In the event that the Architectural Committee permits more than 10,000 square feet of dealing on a Lot, then the Architectural Committee shall require the Lot Owner to plant two (2) two-inch (2") caliper trees of native species for every 500 square feet (or fraction thereof) of additional clearing allowed in excess of 10,000 square feet. Under no circumstance shall more than 15,000 square feet of clearing be permitted on any Lot. These restrictions shall not affect those Lots which are already cleared.

After final grading following construction of a Dwelling on a Lot, no living tree greater than 8" “ in diameter may be removed from a Lot without approval of the Architectural Committee. The Architectural Committee may not authorize a variance to this Section, except as otherwise provided in this Section 7.2.2. 7.2.3 Extension of Forest Buffer Easement Area. The restrictions contained in the Forest Buffer Easement ⁷⁰⁰ Agreement shall apply to an area extending five feet (5') beyond the boundaries of the Forest Buffer Easement Area as shown on the Plat and there shall be no building and no construction within this five foot (5') extension area, provided, however, that building and construction shall be allowed in this five foot (5') extension area for septic fields, wells or storm water management purposes. Upon a Lot Owner’s specific request to the Architectural Committee, permission will not be unreasonably withheld, delayed or conditioned for a Lot Owner to allow the Forest Buffer Easement Area to expand onto a requesting Lot Owners’ Lot beyond the limits of the Forest Buffer Easement Area and the five foot (5') extension area.

The Architectural Committee may not authorize a variance to this Section, except as otherwise provided in this Section 7.2.3. * * * 7.3.2 Specific Construction Criteria. The Architectural Committee shall not approve any Plan if any of the following special construction criteria are violated: (a) A Dwelling to be constructed on a Lot shall not exceed 7,500 square feet of living space. Square feet of living space shall mean the area between the finished surfaces of the exterior walls of the Dwelling, but does not include exterior porches or deck, garages, basements or attic areas. Additionally, square footage of living space shall not include the open areas of a two-story volume area which are included in the computation of the floor area of the first floor.

(b) There shall be no additional Street Lights beyond those Street Lights shown on the Development Plan. (c) No exterior lights shall be installed on any structure higher than thirty feet (30') from the ground. (d) No exterior lighting shall be installed which is greater than 250 watts, and all exterior lighting, except motion sensitive flood lighting, shall be minimized and shall be directed inward and downward toward the Dwelling. ⁷⁰¹ (e) No Dwelling is to be higher than thirty-five feet (35') as measured by the 1995 Baltimore County Zoning Regulations. (f) The sediment control plans and other Plans must adequately protect the Forest Buffer Easement Area and the Forest Buffer Easement Area as extended by Section 7.2.3, and its associated wetlands and streams, notably Dipping Pond Run, a Class III trout stream.

(g) The Architectural Committee may not authorize a variance to the Section. 7.8.1 Specific Construction Requirements. [Scottish] has entered into an Agreement, subject to Baltimore County approval, to install and maintain Supersilt Fence sufficient to protect the Forest Buffer Easement Area and its associated wetlands and streams, notably Dipping Pond Run, a Class III trout stream, but not less than that Supersilt Fence shown on the Plat. By the acceptance of a Deed conveying any of these Lots, the Owner thereof covenants to adhere to the following: (1) The Supersilt Fence installed along the Forest Buffer Easement Area shall be provided by [Scottish] for the purpose of protecting the Forest Buffer Easement Area and its associated wetlands and streams, notably Dipping Pond Run, a Class III trout stream. (2) The Lot Owners, prior to construction of any Structure on any Lot and prior to dealing of trees on any Lot, shall provide and maintain adequate sediment control and additional Supersilt Fence sufficient to protect the Forest Buffer Easement Area, any extension of the Forest Buffer Easement Area under Section 7.2.3, and its associated wetlands and streams, notably Dipping Pond Run, a Class III trout stream and in accordance with the requirements of the Architectural Committee. Each Owner of a Lot shall maintain the Supersilt Fence on that Lot until such time as the ⁷⁰² Dwelling thereon is completed and the Lot is vegetatively stabilized.

(3) Stock piles of soil shall be located uphill and away from the Forest Buffer Easement Area, and shall be protected with Silt Fence. (4) The Architectural Committee may not authorize a variance to this Section. 7.8.2 Specific Environmental Requirements. All Lot Owners and [WHA] agree to adhere to the following: (1) All areas except those used for buildings, structures, sidewalks and paving, shall be planted with vegetative cover and/or landscaped as soon as reasonably possible after final grading following construction of a Dwelling on a Lot, and shall be maintained in such condition. (2) Dirt and debris accumulating on private roads shall be removed according to the following schedule: May through October, concurrent with grass mowing; November through April, as required.

(3) Snow removal shall be by mechanical means except in severe snow and ice conditions, when de-icing compounds may be used. (4) Application of fertilizers, herbicides and pesticides shall not exceed recommendations of the University of Maryland Cooperative Extension Service. (5) Filling shall not occur in grass or lined drainage ditches or swales. * * * 9.3 Forest Buffer Easement Area. A Forest Buffer Easement