Department of Housing & Community Development v. Mullen

SALMON, Judge. Jon and Sally Mullen (the “Mullens”) are curators of property known as Knock’s Folly, located in Kent County. The Mullens’ curatorship agreement, which is more fully described infra, provided that the Mullens personally would donate the funds necessary to restore and maintain Knock’s Folly. In exchange for their gift, the Mullens were permitted to live on Knock’s Folly rent and tax free, for the duration of their natural lives. 1 In 1974, the Commissioners of Kent County acquired ownership of Knock’s Folly.

Kent County, in 1980, granted a conservation easement to the Maryland Historical Trust (“MHT”), which is a body corporate of the Department of Housing and Community Development (“DHCD”), an agency of the State of Maryland. The easement restricts the nature of the renovation and rehabilitation projects on the premises. Since 1990, Knock’s Folly has been owned by the State of Maryland but is maintained under the care of the Department of Natural Resources (“DNR”). In the curatorship agreement entered into between the DNR and the Mullens, the Mullens acknowledged both the existence of the easement on the land and their obligation to obtain DNR’s and MHT’s permission for all renovation pro ⁶³⁰ jects.

The curatorship agreement provided that failure to comply with any or all of its terms permitted DNR to terminate the agreement and thus cancel the Mullens’ right to live at Knock’s Folly. Litigation commenced between the Mullens and the DNR (and others) in 2002. The details of that litigation will be set forth below, but broadly speaking, the trial judge resolved the dispute between the parties by making four major rulings, viz. 1. That the deed of easement granted to the MHT was a valid legal restriction as a condition of the gift of Knock’s Folly from the Kent County Commissioners to the DNR; 2.

The Knock’s Folly property was subject to the easement under the curatorship agreement between the Mullens and DNR; 3. The Mullens breached the terms of both the curatorship agreement and the easement when they built certain structures on Knock’s Folly without the approval of either the DNR or the MHT; and 4. Despite their breach of the curatorship agreement, the MHT and DNR were enjoined from enforcing some, but not all, rights spelled out in the Agreement. MHT and DNR filed an appeal; the Mullens filed a timely cross-appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND Knock’s Folly is a seventeen-acre parcel of land located on Turners Creek Landing Road in Kent County. The property is improved by a main house composed of two adjoining structures: a one and one-half story log house that was built in 1753 (approximately) and a three-story federal-style brick townhouse built at the dawn of the nineteenth century. The house is on the National Register of Historic Places. Knock’s Folly was deeded to the Commissioners of Kent County in 1974.

Kent County, in 1980, granted a conservation easement in gross in the property to the MHT, with the goal ⁶³¹ of promoting and preserving Knock’s Folly’s “historic, aesthetic and cultural character.” The easement states that the MHT is funded by the “Heritage Conservation and Recreation Service and Maryland Historical Trust.” MHT agreed when it accepted the easement to “comply with all requirements of the Heritage Conservation and Recreation Service made pursuant to the National Historic Preservation Act of 1966 ....” Kent County, in turn, agreed that it would not “cause, permit, or suffer” any building or other structure on the property without the consent of the MHT. The conservation easement further provided that it was binding upon the grantor’s (Kent County’s) successors and assigns. On November 10, 1990, the Mullens entered into a Resident Curatorship Agreement (“Agreement”) with the DNR in which they were designated as curators of Knock’s Folly. Under the DNR’s curatorship program, private citizens agree to donate personally the funds necessary to restore, renovate, and maintain historic properties.

In exchange, the state grants the curators tax benefits, as well as a life estate in the premises, subject to certain conditions. The Agreement contained strict guidelines regarding restoration and renovation work on the property. And, the Mullens agreed that in performing such work they would adhere to the Secretary of the Interior’s “Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings” (“the Standards”). 2 The Agreement also contained the following clause: ⁶³² The [Mullens] acknowledge that the Premises are subject to a historic preservation easement held by [MHT]; they furthermore acknowledge that all restoration work they perform on the premises is subject to approval by [MHT]. (Emphasis added.) A copy of MHT’s historic preservation easement was attached to the Agreement.

The Agreement further provided that the Mullens were required to contact MHT “prior to undertaking any excavation on the [premises” and “abide by [MHT’s] recommendations ... to mitigate anticipated disturbance” from such work “provided that such recommendations are received in writing by the Curators ... within fourteen (14) calendar days from the date the Curators first contact [MHT].” In addition, the Mullens agreed that all restoration work would be in accordance with a detailed schedule (“the Schedule”), which was a list of projects that the Mullens were expected to complete within five years of the date of signing the Agreement. The Schedule anticipated that the Mullens would contribute at least $315,047 to restore Knock’s Folly. Although the Agreement contained a clause that allowed the Mullens to make “reasonable adjustments as work progressed],” without DNR’s prior approval, any adjustments that “substantially alter[ed] the original intent and scope of the Schedule” required the prior approval of the DNR’s Supervisor of Cultural Resources Management. The Agreement also contained a termination clause that provided that DNR could terminate the Agreement upon sixty days’ notice if the Mullens failed to “comply with any and/or all of [its] terms and conditions.” The relationship between the Mullens as curators and the DNR and the MHT operated smoothly for the first several years after the Agreement was signed.

During this period, the Mullens substantially completed all the restoration work required on the historic home. As the circuit court was later to find, ⁶³³ [djuring the term of the Agreement, the Mullens had opportunity on occasion to seek prior approval for projects at Knock’s Folly that had not been contemplated in the Schedule. On at least one such occasion regarding the alteration to an interior staircase, the Mullens submitted detailed plans and specifications to MHT, through DNR, as requested prior to initiating the project. On this occasion, the MHT Board of Trustees reviewed the staircase plans submitted by the Mullens, approved the plans, and notified the Mullen[s] in writing, through DNR, that the plans had been approved. ...

On numerous occasions, MHT provided the Mullens with written instructions and notifications regarding their obligations to seek MHT prior approval for projects at Knock’s Folly that were outside the scope of the Schedule.... On September 9, 1998, Mr. Mullen met with representatives from MHT, DNR, and the Critical Areas Commission 3 to discuss construction of a pool, a brick and iron fence, and a garage. Rodney Little (“Little”), the State historic preservation officer and director of the MHT, was present at a portion of the meeting. Little approved the construction of the pool, garage, and gates 4 on the condition that the gates would be built as a plain iron fence without brick posts rather than “wrought iron and brick,” and as long as the MHT Easement Committee could review the final plans for the pool and the garage. 5 The Mullens never submitted these plans to MHT after the September 1998 meeting. ⁶³⁴ Sometime between April and June 1999, the Mullens constructed a three-bay garage.

The garage was located a short distance from the historic main house. It was forty-feet long, twenty-four-feet wide, and one and one-half stories in height and included an apartment on the second floor. Ross Kimmel (“Kimmel”), the DNR Supervisor of Cultural Resources and Management, inspected the premises on June 23, 1999. At that time, construction of the garage was complete.

Kimmel noted on his report that the garage had been built, but his report did not mention the new gates. In his report, Mr. Kimmel commented that there were no problems to be corrected at that time and that the property looked “better than ever.” He did not, however, notify the MHT immediately about the “improvements.” In November 2000, Little notified the Mullens that MHT had learned about the construction of the garage and asked that the Mullens explain why they had built the structure without MHT’s prior consent. Mr. Mullen responded in a letter dated November 17, 2000, in which he said that the garage was built to replace a shed that they had been using to store equipment needed to maintain the premises. He further explained that he followed the suggestions regarding the location of the garage and its design structure given to him at a “fall” 1998 meeting. 6 ⁶³⁵ The MHT inspected the new garage and gates and, in a January 25, 2001, letter to DNR said: [T]he scale, design, and materials are not appropriate for the site, and therefore in violation of Standard # 9 of the Secretary of the Interior’s Standards for the Rehabilitation of Historic Properties [and that the] new construction would not have been approved even if it had been submitted for review in accordance with the terms of the easement.

On February 9, 2001, DNR directed the Mullens to “raze and remove” the garage and gates because they were in violation of the MHT easement. During the next eleven months, the parties were unable to resolve their difference concerning the “improvements.” On January 10, 2002, DNR wrote a letter to the Mullens notifying them that the Agreement would be terminated if the unauthorized improvements were not cured within sixty days. The parties attended a meeting in the spring of 2002 to attempt to settle disputed matters. The “raze and remove” deadline was extended until June 1, 2002.

The DNR offered to resolve the matter “on the condition that Mullens either raze and remove the garage, or take off one bay from the garage and move the remaining structure to one of three alternative locations.” The Mullens rejected the offer. The Mullens filed a complaint in the circuit court against DNR, Department of Housing and Community Development (“DHCD”), 7 and Governor Parris Glendening on May 10, 2002. Plaintiffs sought to enjoin the defendants from (1) removing ⁶³⁶ any new structures on Knock’s Folly, (2) disturbing the Mullens in the quiet enjoyment of their life estate on Knock’s Folly, or (8) terminating the Agreement. In their complaint, the Mullens contended that they were entitled to an injunction for two reasons.

First, the deed of easement granted to the MHT had been “extinguished” by the doctrine of merger in 1990, when the owner of the servient estate (the State of Maryland to the use of the DNR) and the grantee (MHT, an agency of the State of Maryland) of the easement became one and the same. Second, even if the easement granted to the MHT was still legally valid, the Mullens did obtain prior approval of the MHT before it commenced construction of the garage and gates. On the same date that they filed their complaint asking for an injunction, the Mullens fled a “Motion for Declaratory Judgment,” in which they framed the question to be resolved as: Does MHT possess the approval authority over work done at the Subject Property based on the easement that they were granted in 1980? The court was asked to answer that question in the negative and declare that the easement granted by Kent County to the State of Maryland-MHT, was subsequently extinguished by merger when Kent County conveyed [Knock’s Folly] in fee simple to the State of Maryland-DNR.

DNR and DHCD both filed answers to the Mullens’ verified complaint and plaintiffs’ “motion” for declaratory judgment. DNR also filed a counterclaim for declaratory judgment in which it asked the court to declare: 1. “[T]he MHT Deed of Easement is a valid legal restriction as a condition of the gift of Knock’s Folly from the Commissioners of Kent County to DNR”; 2. “[T]he MHT Deed of Easement is a valid legal restriction as part of DNR’s agreement to accept a gift of land under State law”; ⁶³⁷ 3. “Knock’s Folly is subject to the terms of the MHT Deed of Easement under the Mullens’ Curatorship Agreement with DNR”; 4. “[T]he Mullens are required to obtain the approval of MHT for all restoration work on the Premises under their Curatorship Agreement with DNR”; 5. “[B]y executing the Curatorship Agreement, the Mullens waived their right to challenge the validity of the MHT Deed of Easement”; and 6. “[B]y executing the Curatorship Agreement, the Mullens waived their right to challenge their acknowledgment that all restoration work is subject to approval by MHT.” Governor Glendening, by counsel, filed a motion to dismiss the complaint and the declaratory judgment action filed against him. He asserted that the Mullens had failed to state a claim for which relief could be granted as to him. The Mullens opposed the motion, but the court subsequently granted it.

The Mullens filed a motion for summary judgment on August 30, 2002. Movants requested, among other things, that the court find that MHT’s easement was extinguished by merger when the State acquired title to Knock’s Folly in 1990. DNR and DHCD filed an opposition to the Mullens’ motion, as well as a joint motion for summary judgment on September 19, 2002. In their joint motion, the defendants asked the court to rule that they were entitled to a declaration of all the rights requested of the court in DNR’s counterclaim for declaratory relief.

The Mullens subsequently filed a motion to strike DNR’s and DHCD’s opposition and their joint motion for summary judgment because, purportedly, the opposition and motion were filed untimely. On September 30, 2002, the court denied the Mullens’ motion to strike and granted DNR’s and DHCD’s joint motion for summary judgment regarding DNR’s counterclaim for declaratory relief. The court declared that Knock’s Folly was subject to the MHT easement. The court also declared, inter ⁶³⁸ alia, that the Mullens waived their right to “challenge their acknowledgment that all restoration work at Knock’s Folly was subject to approval by MHT” when they signed the Curatorship Agreement. 8 II.

A. Trial — Stage No. 1 of the Bench Trial A bench trial was held on July 14, 15, and 16, 2003, concerning the Mullens’ request for an injunction. The focus of Stage 1 of that trial concerned the issue of whether the Mullens had violated the terms of the Agreement by constructing the garage and gates without prior approval of either DNR or MHT. Only a brief summary of the Stage 1 evidence is set forth below because the trial court found, and the Mullens do not challenge the finding, that the appellees/cross-appellants did breach the terms of the Agreement by building the gates and garage without obtaining the necessary prior consent from the MHT. Mrs. Mullen testified on direct examination that she believed she and her husband had MHT’s permission to build the garage, but the force of that testimony was eliminated when she admitted on cross-examination that she (1) never heard the MHT grant oral permission and (2) never saw any writing from MHT evidencing such permission.

Mr. Mullen testified that the curatorship program involved what he called “two phases.” Phase 1 encompassed all restoration work on the main house. Phase 2 involved all other needed improvements to the premises. Mr. Mullen said that he believed Kimmel, DNR’s agent, had authority to approve projects that were outside the scope and intent of the Schedule. Usually, if permission from MHT was needed, requests were made by him through Mr. Kimmel.

He admitted, however, that sometimes Kimmel would ask him to ⁶³⁹ go directly to MHT for approval of proposed projects at Knock’s Folly. On direct examination, Mr. Mullen said that at a September 1998 meeting, he received permission from MHT’s Little and from Michael Day (another MHT agent), to construct the garage. According to Mr. Mullen, MHT’s agents did not require that he submit anything to MHT before beginning construction. Mr. Mullen also said that the idea for constructing a new garage “evolved” at the September 1998 meeting when the parties realized that an existing implement shed had to be torn down.

He did not claim that he either asked for or obtained permission from either DNR or the MHT prior to constructing the brick and iron gates. On cross-examination, Mr. Mullen admitted that he had testified previously in an October 11, 2002, deposition that he never actually asked MHT for its approval to construct the garage. Mr. Mullen also admitted that he never received written approval to build the garage from DNR prior to constructing it. He further admitted that before building the garage he received a November 9, 1998, letter sent by the Critical Area Commission to DNR that read “Mr. Mullen shall obtain final approval of the swimming pool location, design, and associated site improvements from the [MHT] prior to starting construction.” (Emphasis added.) No such final approval was ever obtained.

Mr. Kimmel testified that it was his responsibility to “keep in contact with the curators to get answers for the questions they may have, to involve other experts as necessary to give guidance when [he] wasn’t competent to give guidance,” and to put the curators “on notice that they had to make a correction” if he did not approve an improvement. Mr. Kimmel testified that he neither received approval from MHT nor did he give approval to the Mullens to construct the garage or the brick and iron gates prior to the construction of those structures. As mentioned earlier, the Mullens said in a November 2001 letter to the MHT that they built the garage based on a ⁶⁴⁰ conversation in the “fall” of 1998 9 with officials of the MHT (i.e., Messrs. Little and Day).

Mr. Kimmel testified that on May 30, 2001, he had a phone conversation with Mr. Mullen in which he asked Mr. Mullen about what had transpired at the meeting to which he referred, i.e., the meeting that took place on September 9, 1998. A memo concerning that conversation, which Kimmel said was accurate, was read into the record, viz.: Attending the meeting were the following people: John [sic] Mullen, Jim Hastings (contractor), Sarah Taylor-Rogers [then secretary of the DNR], Mary Owens (Critical Areas), Charles Mazurek (SFPS), Michael Day (MHT) and Rodney Little. Rodney was the last one to arrive and the first to leave. Jon thinks Rodney spent no more than five or six minutes on site.

The purpose of the meeting was for Rodney to make a final determination as to the location of a swimming pool on the premises. Rodney has final authority on easement issues, subject to advice only from the Easement Committee. Jon had the pool location outlined on the ground with string, and had the springhouse pool building in place. Jon also had put survey flags in the ground to mark the corners of his proposed garage.

Rodney walked from the parking area through the garden and into the kitchen addition of the house. Jon offered a full tour of the house, but Rodney only saw — at the most— the ground floor. He walked back out through the garden and looked at the string outline of the pool, and okayed that. Jon asked about removing the three-bay, 1950s pole barn-garage and asked about building a replacement on the location marked by the survey flags.

Rodney agreed in principle, but asked that drawings of the final garage be submitted to the Easement Committee for approval. Rodney got in his car and left. Sarah and Mary left shortly ⁶⁴¹ thereafter. Michael Day, Charles Mazurek, Bob Hastings, and Jon Mullen remained.

Jon asked Michael if he (Jon) has heard right, that Rodney okayed the location of the replacement garage, and Michael said yes, contingent upon Easement Committee approval of the drawings. Michael then gave Jon verbal guidelines as to what the garage should look like, construction details, etc., in order to pass muster with the Easement Committee. Here is the critical point: Jon admits that he elected to build the garage according to the guidelines Michael gave him verbally and not to submit plans to the Easem,ent Committee first. His rationale was, based on previous dealings with the Trust, that they would drag things out for a year or more trying to make up their minds, maybe change their minds, etc., and he decided just to build on Rodney’s verbal approval, with Michael’s verbal guidelines, but without getting Easement Committee input.

To my mind, this explanation comes close to reconciling the two versions of the story that we have all been hearing, to wit, “The Trust gave me permission” (Mullen); “No we didn’t” (Trust). Yes they did, but contingent upon their approval drawings, which Jon did not submit. (Emphasis added.) Little, who at all times here pertinent was the director of the MHT and its chief of staff, testified that when MHT learned that the Mullens had violated the easement on prior occasions, MHT would notify the Mullens about the violations and remind them that they needed MHT’s approval for all construction projects. Little testified that he attended a meeting in September 1998 with Mr. Mullen and others to discuss constructing a pool on the property; according to Mr. Little, however, the subject of building a garage was not discussed.

DNR and DHCD made a motion for judgment 10 in their favor at the close of the Mullens’ case. See Md. Rule 2-519. ⁶⁴² In a written order, filed July 22, 2008, the motion by DNR and MHT was granted. See Md. Rule 2-519(b). Included in the court’s order were several findings, including the following important ones: Upon the terms of the Agreement, the Mullens acknowledged “that the Premises [were] subject to a historic preservation easement held by [MHT],” which was attached to the Agreement as Appendix G, and further acknowledged “that all restoration work they performed on the premises is subject to approval by [MHT].” * * * ...

Sometime after November of 1998 the Mullens constructed or caused to be constructed on the Premises (1) a three-bay, one-and-one-half story garage (the “garage”) and (2) two brick and iron gates at either driveway entrance (the “gates”). Both projects were outside the scope of the Schedule and both constituted changes and alterations a,s contemplated in the Easement. ... At a meeting that occurred at Knock’s [Folly] on or about September 9, 1998, Mr. Little gave conceptual approval to Mr. Mullen for construction of a garage contingent upon the submission by the Mullens of detailed plans and specifications for the garage to MHT for prior review and approval. Plans and specifications as required for the garage were never submitted by the Mullens. ...

Similarly, the Mullens never submitted plans and specification[s] to MHT for the gates prior to their construction. ... MHT, or anyone acting with proper authority on its behalf, never gave consent or approval to the Mullens for construction of either garage or the gates. ... Ross Kimmel, a DNR employee and the Supervisor under the Agreement, lacked the authority to act on MHT’s ⁶⁴³ behalf. In any event, Mr. Kimmel did not give prior consent or approval for either the garage or the gates. ...

The Mullens’ failures to obtain prior consent or approval from MHT for construction of the garage and gates constituted a violation of the Easement and a breach of the Agreement. . .. The construction of the garage and gates substantially altered, the scope and intent of the Agreement. (Emphasis added.) B. The Remedies Hearing On August 25, 2003, the court held a “remedies hearing” to determine DNR’s rights under the Agreement in light of the court’s determination that the Mullens had violated the Agreement by erecting the gates and garage without the prior approval of either DNR or MHT. Mr. Little testified at the remedies hearing that both the garage and the gates violated the Secretary of the Interior’s Standards, and it was for that reason that the Easement Committee of the MHT disapproved of the construction.

In regard to the entrance gates, he said: [T]he gates violate ... the rehabilitation standard number six, and reconstruction standards 1, 4, 5, and 6, because each of those relate[s] to basing any construction that you do on a historic site on documentary and physical evidence. And there ... has not been any documentary or physical evidence presented to us that there were in fact gates on the property during the period of historic significance of the property. The gates also violate rehabilitation standard number 8, and reconstruction standards 2 and 3, because the gates were constructed without doing any archeology prior to their construction. * X * ... In order to build the constraints ... the gates subsurface, disturbance was necessary.

And, in the course of doing so, any archeological evidence that was in the ground would be destroyed, including, I might add, if there ⁶⁴⁴ had ever been original gates in that location, the evidence of those gatqs probably would have been destroyed. 4s * 4; The gates also violate rehabilitation standard number 9, because their design, material and location are incompatible with the historical character and integrity of the property. They are quite intrusive on the historic setting on the property. And, if you’re driving from either direction along [Turner’s Creek Landing] Road, it’s one of the first things you see, and they’re quite prominent. Mr. Little also testified that to build the three-bay garage “substantial excavation” was necessary.

This violated Standard 8 (for rehabilitation) because the excavation was done without any attempt to identify whether there were archeological sites there that would be disturbed and also without any attempt to mitigate the destruction of those archeological materials. So whatever artifacts and information were there have been irretrievably lost and cannot be brought back. Furthermore, according to Mr. Little, [T]he garage also violates rehabilitation standard number 9, because it’s [sic] size, location and design substantially damage ... the integrity of the property and the characteristics, which make it ... significant. The ... property was, in the late eighteenth and nineteenth centuries, obviously an agricultural property.

And it was the agricultural character, along with the character of the house and outbuildings, that gave the whole ensemble ... its character altogether. The garage is out of keeping with that character. For example there has ... been discussion of the equipment shed that the garage supposedly replaced. That shed was there when we were looking that day at the pool. .

The shed in question was a much smaller, much less intrusive structure. It was very low. Even to call it one story would be to almost exaggerate it. Had a shed roof.

It was built up on poles. It was open sided. And, like other out buildings of that type, it more or less disappears into the background. ⁶⁴⁵ It’s very light. It does not certainly become a focal point.

It doesn’t compete with the house. And that’s the way agricultural outbuildings typically are constructed. They’re plain and simple. They’re of rough materials.

They tend to recede into the background when you compare them with the providence of the main house. The garage in question is very different. The garage is not agricultural in nature. It’s clearly residential.

Do I think the garage is ugly ? No. However, where does it belong? It belongs in a modem suburban tract development, not with a late eighteenth/early nineteenth century historic farmstead. It is an intrusion on the landscape not only because of it’s [sic] size and design and materials but, in particular, because of it’s [sic] location.

(Emphasis added.) In addition, the location of the garage in relation to the main house was a serious problem according to Mr. Little, because as one approaches Knock’s Folly on Turners Creek Road, the garage blocks the view of the main house until one gets “much closer to it.” The trial judge, accompanied by the attorneys for the parties, went to view Knock’s Folly on August 25, 2003. Based on his inspection of the property and the evidence he had heard, the trial judge made the following findings of fact, among others: 5. The testimony of Mr. Little (MHT Director) reflected an objective basis behind his reasons that the structures are objectionable. There is a rationale for MHT’s declining the construction of these structures. 6.

If this matter were to be viewed in a purely contract setting, DNR’s arguments with regard to exclusive remedy would prevail. It is difficult, however, to view these matters in a purely contractual setting due to the nature of the entire relationship. 7. The Ipjlaintiffs substantially performed their duties under the Resident Curatorship Agreement to the extent that the primary objectives of the agreement deal ⁶⁴⁶ with the restoration of the house, and they have performed that admirably. 8. The MHT easement, however, as well as other terms of the Resident Curatorship Agreement, affect the entire subject property.

The construction of the carriage house/guest cottage [11] and the gates without permission violated the terms of both of those agreements. However, it is noted that subsequent to their construction, the DNR Supervisor did submit an official Site Inspection Report indicating that there were no problems. 9. A person undertaking the curatorship of a property such as this, with the over twenty acres of property to maintain, requires certain equipment and, therefore, it is appropriate to have some storage facility. 10. The critical areas buffer fine restricts the location of such an outbuilding. 11.

The subject building is located in close proximity to the location of a former implement shed. 12. The subject building is located a substantial distance (several yards) from the (main) house. 13. When one drives down Turners Creek Road, the first thing that catches the eye is the subject building [the garage]. It does not block the view of the house.

It is obvious that its existence there would block some view. 14. The view of the house from the road is restricted, and historically was restricted by trees on the property. 15. If one moves the subject building closer to Kennedy-ville, or away from the house somewhat, a few more feet, so that it doesn’t impinge upon the critical area buffer line, it may reduce its view blocking abilities. It ⁶⁴⁷ can’t be moved any closer to the road, or it would definitely block the view of the house. 16.

It is equitable to allow the building to stay where it is subject to possible screening and painting it a different color, although the former building (implement shed) was white as well. 17. The subject building could be moved. But then one would face the problem of where to move it, considering the costs involved and the restrictions of the critical areas buffer line. 18. The subject building, to which the curator would be entitled, should have doors and the ability to be locked. 19.

It is appropriate that the curators be able to have a gate or gates to provide for privacy and to prevent unwanted visitors. 20. The gates constructed by the curators are more extravagant than anything that may have once been there. To that extent, the [cjourt denies the injunction [to prohibit] the removal of the gates and permits them to be removed. But the curators are entitled to a gate appropriate to Knock’s Folly.

It would also be appropriate for the curator to have the gates constructed out of something that requires less maintenance. (Emphasis added.) On September 9, 2003, the court signed an order, which provided that the equities dictate that the carriage house shall remain where it is during the term of the Agreement and therefore the Mullens’ request to enjoin removal or destruction of the carriage house is granted; and it is FURTHER ORDERED that the appropriate means, as approved by MHT and DNR, shall be used to visually screen or soften the view of the carriage house from the eyes of approaching visitors; and it is FURTHER ORDERED that the Mullens’ request to enjoin removal or destruction of the gates is denied and ⁶⁴⁸ DNR and MHT may require the Mullens to remove the gates; and it is FURTHER ORDERED that, if required to remove the gates, the Mullens may replace the gates with gates that are appropriate to the historical significance of the property as approved by MHT and DNR; and it is FURTHER ORDERED that all prior findings and orders in this case are incorporated by reference into this Final Judgment.

III

DNR and DHCD (appellants) argue: The trial court erred when it denied DNR the authority to enforce the remedy provided in the Curatorship Agreement, and rather imposed upon DNR [the requirement] that it must maintain, on its own property, garage and gates constructed by the Mullens in violation of both the Curator-ship Agreement and of DNR’s obligation under the easement. Appellants contend: (1) the contractual remedy agreed upon by the parties was that if the Mullens breached the Agreement, then DNR had the right to terminate the Agreement; (2) the court found, correctly, that the Mullens breached the Agreement by constructing the garage and the gates without the permission of either the DNR or the MHT; and (3) the trial court has “no authority to invoke, on [its] own accord, a remedy alternative to the one bargained for, even if enforcement of the contractual remedy may result in hardship” (citing, inter alia, Massachusetts Indemnity & Life Ins. Co. v. Dresser, 269 Md. 364, 369-70 , 306 A.2d 213 (1973); Holzman v. Fiola Blum, Inc., 125 Md.App. 602, 620 , 726 A.2d 818 (1999); Fultz v. Shaffer, 111 Md.App. 278, 298 , 681 A.2d 568 (1996); Stueber v. Arrowhead Farm Estates Ltd. P’ship, 69 Md.App. 775, 780-81 , 519 A.2d 816 (1987)). Appellants place primary reliance on Stueber v. Arrowhead Farm Estates, which involved an equitable suit for specific performance by the Stuebers, who sold 66 acres of land to a ⁶⁴⁹ partnership that planned to subdivide the property. 69 Md. App. at 777 , 519 A.2d 816 .

Under the sales contract, the sellers were to receive, inter alia, fifty percent of the net proceeds from the sale of each lot sold to third parties by the purchasers. The purchasers agreed that Section 1 of the subdivision that they planned to build was to be completed no later than January 21, 1984. The purchasers, however, failed to meet that deadline. Id. at 778 , 519 A.2d 816 .

The sales contract contained a default clause that read as follows: “DEFAULT BY PURCHASERS — PARTNERSHIP. In the event that the Purchasers — Partnership default on any provision of this Agreement, all 'remaining lots shall be deeded back to the Sellers at no cost or expense to them, including, but not limited to transfer and, documentary taxes. ... The Partnership will also be responsible for any and all restoration costs as may be required by State and/or County authorities.... This clause represents the Sellers’ entire legal remedy in the event of a default hereunder.” (emphasis added).

Id. at 778-79 , 519 A.2d 816 . The sellers sued the purchasers, asking for