Chestnut Real Estate Partnership v. Huber

SMITH, Judge. This case involves a tug-of-war between the owners and developers of the Blakehurst Life Care Community, the appellants, and representatives of its neighbors, members of a neighborhood Advisory Board, the appellees. Presently, the parties quarrel over the manner in which appellants intend to improve the Blakehurst property, and the equitable remedies fashioned by the circuit court to resolve their dispute. Appellants 1 seek our review of two orders of the Circuit Court for Baltimore County dated August 28 and November 29, 2001, respectively.

In the former, the circuit court granted injunctive relief directing Chestnut to remove a garden shed and awarding attorney’s fees. By its latter order, the court enjoined the construction of additional parking spaces, and awarded counsel fees to appellees with respect to the subject of the November Order. For the reasons set forth below, we shall affirm the circuit court in all respects, and remand for the circuit court to render findings of fact and conclusions of law with respect to additional attorneys’ fees and costs. ¹⁹⁴ Background There have been two separate and distinct appeals involving these parties in this Court. The first action arises out of a 1999 proposal by Chestnut to create a total of 63 additional parking spaces at the Blakehurst Life Care Community.

This move was vigorously opposed by neighbors and their Advisory Board. Baltimore County zoning administrators initially approved the request. On appeal by the Advisory Board, the Baltimore County Board of Appeals reversed, and disapproved Chestnut’s proposal. In the ensuing action for judicial review of this decision, Judge Wright, in the Circuit Court for Baltimore County, affirmed the Board’s decision.

On appeal to this Court by the developer and owner of Blakehurst, we upheld the circuit court. Blakehurst Life Care Community/The Chestnut Real Estate Partnership v. Baltimore County 146 Md.App. 509 , 807 A.2d 179 (2002) (Blakehurst I). Writing for this Court, Judge Sharer reviewed in detail the factual and procedural history of the. restrictive covenant Agreement executed by these parties: Blakehurst Life Care Community is a 278-unit continuing care/assisted living community located on Joppa Road in Towson, Baltimore County. It was developed by the Chestnut Partnership in 1988.

Because there was, at that time, opposition from the neighboring community (represented primarily by the Ruxton-Riderwood-Lake Roland Area Improvement Association) (the Association) in which the development was planned, there evolved a restrictive covenant agreement (the Agreement) which allowed the initial development to go forward. The Agreement was adopted by the appropriate Baltimore County agencies as the operative controlling document for the development of Blakehurst, and for future expansions and improvements. In 1988, the Chestnut Partnership submitted to the Baltimore County Review Group (CRG) a plan to build a continu ¹⁹⁵ ing care facility on a 40.92 acre tract at 1055 Joppa Road in Towson. On September 8, 1988, following a public meeting, the CRG approved the plan.

Adjacent property owners and the Association filed an appeal of the CRG approval to the Baltimore County Board of Appeals. The Chestnut Partnership then filed petitions for a special exception and variance with the Baltimore County Zoning Commissioner. Following a hearing on September 25, 1988, the Zoning Commissioner denied the requests ruling that “... the size and scope of the project is inconsistent with the peaceful use and enjoyment of the surrounding neighborhood.” The Chestnut Partnership filed a timely appeal of that decision to the Board. To avoid further administrative litigation, and probable appeals, relating to the proposed development, the Chestnut Partnership, the Association, and several individual adjacent property owners entered into the Restrictive Covenant Agreement.

The Agreement, executed on October 18, 1988, stipulated that specifically identified maps, plans, plats, and other pertinent documents, would define the size and scope of the Blakehurst development (1) for 25 years on the portion of the land containing the residential buildings and (2) for 50 years on the remaining portion of the land. The Chestnut Partnership, the Association and the individual parties to the Agreement then requested that the Board consolidate the pending appeals (the CRG approval appeal and the special exception denial appeal) and to approve the development in the terms defined by the Agreement. The Board acquiesced and, on October 25, 1988, entered a consent order adopting and incorporating the Agreement. The consent order provided, in relevant part, that The Continuing Care Facility hereby approved shall conform in all respects to the terms and conditions of the October 13, 1988 Restrictive Covenant Agreement and Exhibits between the parties, which is hereby incorporated as a part of this Order as if it were fully set forth herein. ¹⁹⁶ Blakehurst was then developed and constructed by the Chestnut Partnership.

Blakehurst I, 146 Md.App. at 512-13 , 807 A.2d at 181 . We shall briefly revisit the administrative review proceedings as necessary for our discussion of the instant appeal. In addition to being enrolled as an order of the Board of Appeals, the parties’ restrictive covenant Agreement was also duly recorded in the Baltimore County land records on March 24,1992. It has been amended by five separate addenda since the parties reached their accord in 1988.

In 1996, Chestnut approached the Advisory Board with proposals for more parking and other additions. The Advisory Board approved these requests, which were then embodied in the fourth and fifth addenda to the Agreement. For the 1999 parking proposals, however, Chestnut did not avail itself of this procedure. The Advisory Board and its members objected.

The resulting conflict was resolved, as we have seen, by administrative litigation and the ensuing actions for judicial review. The proposed extension of the parking was not the only point over which the parties disagreed. On February 29, and June 21, 2000, the Advisory Board, through counsel, contacted representatives of Chestnut and objected to the construction of a garden shed, the presence of two other structures, and other apparent changes to the Blakehurst landscape not relevant here. The Advisory Board sought the removal of the offending structures and other action.

The parties reached an impasse. Appellees then filed this action in the Circuit Court for Baltimore County seeking to enforce the Agreement. They prayed for injunctive relief which would require the dismantling of the offending structure. They also requested a declaration that the Agreement was enforceable.

In addition, they sought attorney’s fees under Paragraph 18, the enforcement provision of the Agreement. Following a lengthy bench trial, the circuit court (Cahill, J.) ruled in favor of the Advisory Board. In its August 23, 2001 judgment order, the court granted injunctive and declaratory ¹⁹⁷ relief. It ordered the dismantling of a metal equipment/tool shed structure and foundation, which was located south of Cemetery Road, and the garden shed that had been erected during 1999-2000, including its foundation.

It declared the restrictive covenant Agreement to be enforceable by appellees. The circuit court also awarded $27,147.85 in attorneys’ fees and costs. Following this order, Judge Wright issued his order in the related judicial review action, affirming the decision of the Board of Appeals. That order was affirmed by this Court in Blakehurst I. Armed with Judge Wright’s decision, the Advisory Board on September 14, 2001, moved for partial summary judgment on the remaining issues in the injunctive action in the case sub judice.

On November 29, 2001, Judge Cahill enjoined Chestnut from using certain existing parking spaces, and prevented additional parking. The court awarded additional attorneys’ fees in conjunction with this second stage of the action. This timely appeal followed. Discussion Appellants raise four issues in this appeal, which we have recast somewhat: I. Whether the Circuit Court erred in holding that the construction of the garden shed violates Paragraph 2.b of the Restrictive Covenant Agreement?

II

Whether the Circuit Court abused its discretion in granting mandatory injunctive relief without a finding of irreparable harm?

III

Whether the Circuit Court erred in holding that the Agreement required an Addendum before Blakehurst could construct additional parking spaces?

IV

Whether the Circuit Court’s award of attorneys’ fees can be upheld? We hold that the Agreement prohibits the construction of a garden shed such as the structure at issue. We also conclude that, under the extant circumstances, a mandatory injunction ¹⁹⁸ may issue to prevent violations of the restrictive covenant Agreement without a corresponding explicit showing of irreparable harm. We also see no error in the circuit court’s holding with respect to the additional parking; .this issue is precluded by this Court’s decision in Blakehurst I. In view of our holdings on these issues, we uphold the circuit court’s awards of attorneys’ fees.

Therefore, we shall affirm the circuit court in all respects. I. At the outset, we shall briefly consider our jurisdiction over this appeal, a matter which we may address ex mero motu, because the unique circumstances of this case prompt us to consider whether the parties are bound to exhaust available administrative remedies. See Moats v. City of Hagerstown, 324 Md. 519, 525-26 , 597 A.2d 972, 975 (1991). We address this, because while parties could seek the assistance of a court in equity to enforce contracts, particularly restrictive covenants, see, e.g., Eisenstadt v. Barron, 252 Md. 358 , 250 A.2d 85 (1969), the restrictive covenant Agreement in this case has also been incorporated into an order of the Baltimore County Board of Appeals, and “became enforceable by the Board.” Blakehurst I, 146 Md.App. at 520 , 807 A.2d at 186 .

The threshold question thus becomes whether the Agreement’s status as a Board of Appeals order requires the parties to exhaust administrative remedies prior to seeking recourse in the courts. In Josephson v. City of Annapolis, 353 Md. 667 , 728 A.2d 690 (1999), the Court of Appeals reiterated the “general rule”: [W]hen administrative remedies exist ... they must be exhausted before other actions, including requests for declaratory judgments, mandamus and injunctive relief, may be brought. 353 Md. at 681 , 728 A.2d at 696 . See also Moose v. Fraternal Order of Police, 369 Md. 476, 487 , 800 A.2d 790, 797 (2002); Montgomery County v. Broadcast Equities, Inc., 360 Md. 438 , ¹⁹⁹ 452, 758 A.2d 995, 1003 (2000); Young v. Anne Arundel County, 146 Md.App. 526, 556 , 807 A.2d 651, 669 (2002). The exhaustion doctrine is grounded, in part, in the prudential concern that a court must allow the executive’s jurisdiction in the first instance over a controversy within the executive’s expertise.

See State Retirement and Pension System v. Thompson, 368 Md. 53, 65-66 , 792 A.2d 277, 284-85 (2002). The doctrine of “primary jurisdiction,” which “coordinate[s] the allocation of functions between courts and administrative bodies!,] • • • is predicated upon policies of judicial restraint!.]” Maryland-National Capital Park and Planning Commission v. Washington National Arena, 282 Md. 588, 601 , 386 A.2d 1216, 1225-26 (1978) (citations omitted). But the remedy sought here by the Advisory Board, a mandatory injunction, is purely equitable in nature, and a preeminently judicial function that is not within the expertise of zoning administrators or the Board of Appeals. Appellees have invoked the equity power of the courts to return the Blakehurst property to its status quo ante, to wit: the removal of structures that exist in direct contravention of the restrictive covenants.

Although administrative bodies may exercise certain quasi-judicial functions, for example, rendering findings of fact and making conclusions of law to decide disputes between parties, see, e.g., Department of Natural Resources v. Linchester Sand & Gravel Corp., 274 Md. 211, 219-21 , 334 A.2d 514, 520-21 (1975), the remedy effected sub judice — a mandatory injunction — is purely a judicial prerogative. Because the construction of the offending structures was a fait accompli, the Advisory Board’s sole recourse to effect their removal would be to enlist the aid of the chancellor. 2 ²⁰⁰ II. We review the circuit court’s decision to grant an injunction for an abuse of discretion. See State Commission on Human Relations v. Talbot County Detention Center; 370 Md. 115, 127 , 803 A.2d 527, 534 (2002) (statutory injunction).

As to the findings of fact and conclusions of law rendered by the court in a trial without a jury, the Court of Appeals directs: Both this Court and the Court of Special Appeals, when reviewing a case tried without a jury, must “review the case on both the law and the evidence.” Maryland Rule 8-131(c) (1995 Repl.Vol.). The Court must “not set aside the judgment of the trial court on the evidence unless clearly erroneous,” and must “give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Id. In addition, we must consider the evidence in the light most favorable to the prevailing party, e.g., Geo. Bert.

Cropper, Inc. v. Wisterco, 284 Md. 601, 620 , 399 A.2d 585 [, 595] (1979), and decide not whether the trial judge’s conclusions of fact were correct, but only whether they were supported by a preponderance of the evidence. E.g., State Insurance Comm’r v. Nat’l Bureau, 248 Md. 292, 305 , 236 A.2d 282 [, 289] (1967). Colandrea v. Wilde Lake Community Association, 361 Md. 371, 394 , 761 A.2d 899, 911 (2000) (quoting Urban Site Venture II Limited Partnership v. Levering Associates Limited Partnership, 340 Md. 223, 229-30 , 665 A.2d 1062, 1065 (1995)). Again, we review the trial court’s findings of fact for clear error in light of the record as a whole, and in the light most favorable to the prevailing party.

See Murphy v. 24th Street Cadillac Corp., 353 Md. 480, 497 , 727 A.2d 915, 923 (1999). Findings supported by substantial evidence are conclusive. Id. at 497 , 727 A.2d at 923-24 .

III

Appellants maintain that the garden shed is a permissible use under Paragraph 2.b of the Agreement, and vigorously ²⁰¹ contest the circuit court’s finding to the contrary. They point out that the shed is an adjunct to the gardening activities of the Blakehurst residents, which activities are doubtlessly recreational in nature. Appellants’ syllogism reads thus: 1. The residents’ gardening has been found to be a recreational activity, and the purpose of the shed is to facilitate that recreational activity. 2.

The shed is thus ancillary to the permitted use of the property, and is therefore a permitted use under the Agreement. 3. Accordingly, the circuit court’s injunction mandating the shed’s dismantling is lawless. We disagree with appellants’ interpretation of the relevant portion of the Agreement. As noted by Judge Sharer for the Court in the companion case, “Maryland has long adhered to the law of objective interpretation of contracts.” Blakehurst, 146 Md.App. at 523 , 807 A.2d at 187 (citing, inter alia, Auction & Estate Representatives, Inc. v. Ashton, 354 Md. 333, 340 , 731 A.2d 441, 444 (1999)).

See also, County Commissioners of Charles County v. St. Charles Associates Ltd. Partnership, 366 Md. 426, 444 , 784 A.2d 545, 556 (2001). Further, the interpretation of such an accord presents a question of law, which we review de novo. Calomiris v. Woods, 353 Md. 425, 447 , 727 A.2d 358, 368-69 (1999). Paragraph 2.b of the Agreement provides in part: 2.

Use and Term Limitation b. That portion of the Community, Exhibit A, Parcel B, lying south of the internal roadway and identified as Cemetery Road, shall remain as open space and shall be used solely for recreation, golf holes, non-lighted tennis courts or similar recreational activities for the exclusive use of residents of the community and their guests for a period of fifty (50) years from the date of this Agreement. The parties agree that this portion of Parcel B shall not be subdivided and shall be used only in conjunction with the use authorized for the whole of Parcel B during that period. It is ²⁰² further agreed that there will be no parking permitted, no buildings nor structures nor paving of any sort constructed on that portion of Parcel B or permitted other than is shown on Exhibit A during that period.

The parties further agree that there shall be no lighting of any of the activities permitted on this portion of Parcel B. (Emphasis added.) In urging that we reverse the circuit court, appellants maintain that the garden shed is explicitly authorized by the Agreement because of its necessary connection with the residents’ gardening activities. Citing Chertkof v. Spector Baltimore Terminal, Inc., 263 Md. 550 , 284 A.2d 215 (1971), appellants remind us that, just as the fence, I beams, macadam bumpers, truck warmers and the like were viewed as adjuncts to a permitted use in that case so also should we view the garden shed as a necessary, indeed required, part of the recreational gardening activities envisioned by the Agreement for the residents of Blakehurst. 3 Notwithstanding the inclination in the law toward the unfettered use of one’s property in general, the restrictive covenants are meant to be enforced as written. A clear purpose of Paragraph 2.b of this Agreement is to preserve open space.

In Eisenstadt v. Barron, the Court of Appeals observed: [Maryland Courts] have frequently stated and applied the rule of strict construction in favor of the unrestricted use of ²⁰³ property.... But this does not mean that language must be so narrowly construed as to defeat its general purpose. 252 Md. at 868 , 250 A.2d at 90 (quoting Martin v. Weinberg, 205 Md. 519, 526-27 , 109 A.2d 576, 579 (1954)). We think that appellants miss the fact that the overriding matter of Paragraph 2.b of the Agreement is that the portion in question “shall remain as open space[.]” It is this “open space” that “shall be used solely for recreation!.]” The prohibition of “buildings” and “structures” follows the “open space” mandate, as well as the provision for recreation. That permitted activity, recreation, in no way modifies or qualifies the Agreement’s clear statement that “no buildings nor structures nor paving” are allowed. 4 In the final analysis, we conclude that Paragraph 2.b of the Agreement dictates that the portion of the Community at issue must be dedicated to open space, and that any recreational use of that portion shall not be inconsistent therewith.

Because the garden shed violates the clear terms of the Agreement, we uphold the circuit court’s ruling to that effect. For the reasons set forth below, we also affirm the chancellor’s remedy.

IV

Appellants’ alternative challenge to the circuit court’s position on this issue is to contest the validity of the mandatory ²⁰⁴ injunction. Assuming that the garden shed was constructed in violation of the Agreement, they nevertheless insist that the circuit court’s issuance of the mandatory injunction was unlawful because the judge failed to find irreparable harm, and that none could be shown in any event. We do not agree. Injunctions Generally Our Rules of Civil Procedure define “injunction” as an “order mandating or prohibiting a specified act.” Md. Rule 15-501.

See Maryland Trust Co. v. Tulip Realty Company of Maryland, Inc., 220 Md. 399, 412 , 153 A.2d 275, 284 (1959). Judge Harrell, writing on behalf of the Court of Appeals, recently observed: An injunction is “ ‘a writ fi-amed according to the circumstances of the case commanding an act which the court regards as essential to justice, or restraining an act which it esteems contrary to equity and good conscience.’ ” Thus, injunctive relief is “ ‘a. preventative and protective remedy, aimed at future acts, and is not intended to redress past wrongs.’ ” * * * We review the exercise of the trial court’s discretion to grant or deny a request for injunctive relief under an “abuse of discretion” standard (see Colandrea, 361 Md. at 394 , 761 A.2d at 911 (citing State Dep’t of Health & Mental Hygiene v. Baltimore County, 281 Md. 548, 554 , 383 A.2d 51, 55 (1977))); however, we give no such deference when we find “an obvious error in the application of the principles of equity.” Western Md. Dairy v. Chenowith, 180 Md. 236, 244 , 23 A.2d 660, 665 (1942). El Bey v. Moorish Science Temple of America, Inc., 362 Md. 339, 353-54 , 765 A.2d 132, 139-40 (2001). See also Colandrea, 361 Md. at 394-95 , 761 A.2d at 911 .

Cf. Talbot County Detention Center, 370 Md. at 127 , 803 A.2d at 534 (statutory injunction). ²⁰⁵ We certainly recognize that in general the party seeking injunctive relief has been required to demonstrate “irreparable harm” for the writ to issue, for this requirement has by tradition been a touchstone for granting injunctive relief. The following language from Moorish Temple comes to mind: Injunctive relief normally will not be granted unless the petitioner demonstrates that it will sustain substantial and irreparable injury as a result of the alleged wrongful conduct. Mar yland-Nat’l Capital Park and Planning Comm’n v. Washington Nat’l Arena, 282 Md. 588, 615 , 386 A.2d 1216, 1234 (1978) (citations omitted); Fort v. Groves, 29 Md. 188, 193-94 (1868).

Such injury, however, need not “be beyond all possibility of compensation in damages, nor need it be very great.” Maryland-Nat’l, 282 Md. at 615 , 386 A.2d at 1234 (quoting Hart v. Wagner, 184 Md. 40, 48 , 40 A.2d 47, 51 (1944); Smith v. Shiebeck, 180 Md.