Long Green Valley Ass'n v. Bellevale Farms, Inc.

KENNEY, J. Appellants Long Green Valley Association (“LGVA”) and John and Susan Yoder (“the Yoders”) appeal the issuance of a declaratory judgment by the Circuit Court for Baltimore County in favor of appellees: Bellevale Farms, Inc., Bellevale Farms Limited Partnership, Prigel Family Creamery, Inc., and Robert E. and Carol A. Prigel (collectively, “Bellevale”), and the Maryland Agricultural Land Preservation Foundation (“MALPF”). 1 Appellants present one question, which we have reworded slightly: Did the circuit court err in concluding that appellants lack standing to bring an action challenging Bellevale’s proposed ⁶⁴³ construction and operation of a creamery in violation of an agricultural preservation easement held by MALPF? For the reasons that follow, we shall vacate the judgment and remand to the circuit court for further proceedings. FACTS AND PROCEEDINGS 2 Bellevale owns and operates a dairy farm (“Bellevale Farm”) on approximately 199 acres located at 4851-53 Long Green Road in the Long Green Valley area of Baltimore County. The Yoders own and operate an adjacent dairy farm.

MALPF is an entity of the Maryland Department of Agriculture. See MD. CODE ANN., AGRIC., § 2-502. Section 2-501 of the Agriculture article 3 provides, (a) In general.—It is the intent of the Maryland General Assembly to preserve agricultural land and woodland in order to: (1) Provide sources of agricultural products within the State for the citizens of the State; (2) Control the urban expansion which is consuming the agricultural land and woodland of the State; (3) Curb the spread of urban blight and deterioration; and (4) Protect agricultural land and woodland as open-space land.

To carry out that intent, MALPF is granted the power to (1) “enter into contracts generally and to execute all instruments necessary or appropriate to carry out its purposes,” and (2) to “acquire, by gift, purchase, devise, bequest or grant, easements in gross or other rights to restrict the use of agricultural land and woodland as may be designated to maintain the ⁶⁴⁴ character of the land as agricultural land or woodland[.]” Id. at § 2—504(2)—(3). Under the statute, (1) A landowner whose land is subject to an easement may not use the land for any commercial, industrial, or residential purpose except: (i) As determined by the Foundation, for farm- and forest-related uses and home occupations; or (ii) As otherwise provided under this section. Id. at § 2-513 (emphasis added). LGVA is “a community association representing approximately 300 residents of the Long Green Valley of Baltimore County, and is dedicated to the preservation of open space, farmland, natural resources, historic sites, and the heritage and character of the Long Green Valley.” The Yoders are members of LGVA.

As described in the affidavit of LGVA’s secretary, Over the years, the LGVA has solicited landowners in the Long Green Valley to sell or donate easements on their properties to MALPF, Baltimore County’s Agricultural Land Preservation and Rural Legacy programs, the Long Green Conservatory, and other conservancies and trusts. Members of LGVA, [including the Yoders,] in fact, have placed their properties in conservation easements, including MALPF easements. The LGVA has contributed funds towards the purchase of at leas[t] one easement. On January 12, 1997, the State, on behalf of MALPF, purchased an “agricultural preservation easement” on Belle-vale Farm for $796,500.

Under the deed of easement (“the Easement Agreement”), it is the intention of the parties that the said land shall be preserved solely for agricultural use in accordance with the provisions of the Agriculture Article, Title 2, Subtitle 5 ... and that the covenants, conditions, limitations and restrictions hereinafter set forth, are intended to limit the use of the above described land[.] ⁶⁴⁵ The section of the Easement Agreement labeled COVENANTS, CONDITIONS, LIMITATIONS, and RESTRICTIONS states: [A](l)(a) Except as otherwise provided in this instrument, the above described land may not be used for any commercial, industrial, or residential purpose.... [A] (3) The grantor reserves the right to use the above described land for any farm use, and to carry on all normal farming practices ... including any operation directly relating to the processing, storage, or sale of farm, agricultural or woodland products produced on the said above described land____ [B] (6) If the Grantor has any doubts concerning the easement, covenants, conditions, limitations or restrictions herein contained with respect to any particular use of the said land, the Grantor may submit a written request to the Grantee for consideration and approval of such use.... [B](9) This easement shall be in perpetuity, or for so long as profitable farming is feasible on the Grantor’s land and may be released only by the Grantee as provided by Agriculture Article, Section 2-514[.] The Easement Agreement also states that it “shall be governed by the laws of the State of Maryland and the parties hereby expressly agree that the courts of the State of Maryland shall have jurisdiction to decide any question arising hereunder after all administrative remedies have been exhausted.” As stated by MALPF’s Executive Director, under the [Easement Agreement], consistent with § 2-513 ... Bellevale [is] prohibited generally from using the land for any commercial, industrial, or residential purpose. There are, however, exceptions to this general prohibition— one notable exception [is] the ability to use the land, as determined by MALPF, for “farm and forestry related uses and home occupations.” On August 1, 2007, Bellevale filed a request with MALPF seeking, ⁶⁴⁶ to construct a 7,000 to 10,000 square foot building to house [a] creamery operation, processing facility and a farm store. As well, [Bellevale is] requesting a parking area that would accommodate fewer than 10 vehicles.

The parking area is proposed to be located on Long Green Road with the creamery directly behind it. A short distance of access on an existing farm lane may be needed. According to MALPF’s Executive Director, [o]n October 23, 2007, MALPF, pursuant to its authority under § 2—513(b)(i), reviewed the ... request and approved the creamery operation, as proposed to the Board, having determined that the operation was a “farm related use” that complements [Bellevale’s] organic dairy operation—a use that is compatible with agriculture and MALPF’s program. MALPF took this action after being advised that the Baltimore County Agricultural Land Preservation Advisory Board already had reviewed [Bellevale’s] request and voted favorably on it.

Appellants submit, [a]fter MALPF’s approval of the Creamery Operation on October 23, 2007, [a]ppellants requested that MALPF reconsider its approval and enforce the terms of the Easement Agreement and State and County law. Appellants also requested that the Secretary of Agriculture intervene. Despite these requests, MALPF and the Secretary have refused to take further action to enforce the Easement Agreement and the law. On April 4, 2008, in Zoning Case No.2008-0506 (“the Zoning Case”), appellants filed a “Petition for Special Hearing” before the Deputy Zoning Commissioner for Baltimore County in order to determine “whether a dairy processing facility is permitted in an R.C.2 zone[.]” On August 12, 2008, the Deputy Zoning Commissioner found the proposed facility was permitted.

Appellants appealed that decision to the Board of Appeals, but later dismissed their appeal. ⁶⁴⁷ On May 30, 2008, based on MALPF’s approval of the proposed creamery, appellants filed an amended four-count complaint with the Circuit Court for Baltimore County: • Count I: Writ of Mandamus—MALPF’s Failure to Enforce the Easement Agreement • Count II: Writ of Mandamus—MALPF’s Failure to Enforce the Provisions of State and Local Law • Count III: Declaratory Judgment • Count IV: Permanent Injunctive Relief As characterized by appellants, the complaint seeks: (i) a writ of mandamus ordering MALPF to enforce the terms of the Easement Agreement and provisions of State and County law, (ii) a declaration that the proposed Creamery Operation violates the Easement Agreement, as well as State and County law, because it constitutes a commercial and/or industrial use, and (iii) an order permanently enjoining Bellevale from constructing and operating the Creamery Operation and further violating the Easement Agreement and State and County law. In response, on June 27, 2008, Bellevale filed a motion to dismiss and/or for summary judgment, averring that appellants “lack standing to bring their equitable claims[.]” After the circuit court issued its Motions Ruling on August 6, 2008, and “HELD [the motion] FOR FURTHER INFORMATION,” MALPF filed a motion to dismiss and/or for summary judgment, primarily based on appellants’ lack of standing on all counts of the complaint. On October 7, 2008, appellants filed a cross-motion for summary judgment, “requesting] that the Court find, as a matter of law, that the Creamery Operation is a commercial use that is prohibited by terms of the Easement Agreement.” At the hearing on the motions, the court said, [I] need to sit down and to make a declaratory judgment on the motion to dismiss, motion for summary judgment, whatever is filed in here, to the effect that this is an issue involving standing ... [and] the legislature has not indicat ⁶⁴⁸ ed one way or another through any historical development or legislative history that I can see, whether or not there should be standing. So that means that we fall back on the issue of whether an easement itself gets standing and they have not said one way or another about that.

In fact, they have specifically said that they have appointed somebody in the position called the State of Maryland, the Office of the Attorney General, etcetera to enforce this. Now, the next step is do they as property owners have this right. Well, Sugarloaf is very, very interesting because the property owners had that right because they were having a dump there and they were burning all sort of toxic materials and the Butlers and the other people claimed that it was harming their land. So I am not going to say the Court of Appeals is ever going to close the door completely on saying that these adjacent property owners don’t have any right.

What I’m saying is I can’t see that they have anything different as did occur in Sugarloaf because their properties were being destroyed or hurt through toxic substances coming over which is not manifest here because I don’t see it, except for the desire not to have competition in this regard, I can’t see your clients are in any other position here able to be articulated different from the public.... I, there’s two matters of first impression here, that is the right or not of the public to enforce this easement and, secondly, the situation as to whether or not it’s going to be considered a charitable trust. On March 19, 2009, the circuit court issued its ORDER OP COURT DECLARATORY JUDGMENT. It stated: It is ORDERED and DECLARED by the Circuit Court for Baltimore County that [appellants] have no authority under [subtitle 5 of title 2 of] the Agriculture Article of the Annotated Code of Maryland, ...

Maryland law pertaining to easementsf,] or otherwise by any other principle or doctrine of law to challenge through direct primary jurisdiction the right of [Bellevale] to construct a creamery operation on property owned by [Bellevale] as they have alleged in their Complaint. [Appellants] have no standing. ⁶⁴⁹ It is the right of [appellants] to carry their dispute with [appellees] through the zoning, planning and permit process of land use enacted by the State of Maryland and Baltimore County as those laws pertain to [Bellevale Farm]. Any citizen who qualifies for standing in the administrative process may initiate that process with Baltimore County government____ For reasons more completely explained by this court on the record at the time of the hearing on the open motions, it is determined by this court that neither the legislative history of the MALPF enactment, the wording of the Statutory scheme or any COMAR regulation enacted pursuant to the statute indicate any intent to allow a taxpayer, an adjoining property owner, or any other individual or entity to challenge the decision made by MALPF to approve the creamery operation by direct application of primary jurisdiction with this court.... As a result of a consideration of the pleadings and papers filed in this case and upon a hearing it is ORDERED by the Circuit Court for Baltimore County as follows: 1. [Bellevale’s] Motion for Summary Judgment ... is GRANTED. 2. [MALPF’s] Motion for Summary Judgment is GRANTED. 3. The Motion for Summary Judgment filed by [appellants] ... is DENIED.

Count I (Mandamus for ... failure by MALPF to enforce an agricultural easement), Count II (Mandamus for an alleged failure by MALPF to enforce provisions of State and Local law), and Count IV (Request for Injunctive Relief) are all dismissed. 4 ⁶⁵⁰ DISCUSSION I. Standard of Review The circuit court’s order issued a declaratory judgment that appellants lacked standing, 5 granted appellees’ motions for summary judgment and also “dismissed” Counts I, II and IV of the complaint. 6 In Catalyst Health Solutions, Inc. v. Magill, 414 Md. 457, 470-72 , 995 A.2d 960 (2010), the Court of Appeals explained, The entry of summary judgment is governed by Rule 2-501, which provides in pertinent part: (f) Entry of judgment. The court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law. As we recently stated in Gourdine v. Crews, 405 Md. 722, 735-36 , 955 A.2d 769, 777-78 (2008), the standard of review of a grant of such a motion is as follows: In considering a trial court’s grant of a motion for summary judgment, this Court reviews the record in the light most favorable to the non-moving party. Anderson v. Council of Unit Owners of Gables on Tuckerman Condo ⁶⁵¹ minium, 404 Md. 560, 570-71 , 948 A.2d 11, 18 (2008); Rodriguez v. Clarke, 400 Md. 39 , 926 A.2d 736 (2007); Rhoads v. Sommer, 401 Md. 131, 148 , 931 A.2d 508, 518 (2007) (“We review the record in the light most favorable to the non-moving party and construe any reasonable inferences that may be drawn from the facts against the moving party.”); Harford County v. Saks, 399 Md. 73, 82 , 923 A.2d 1, 6 (2007) (In reviewing a trial court’s decision on a motion for summary judgment, “we seek to determine whether any material facts are in dispute and, if they are, we resolve them in favor of the non-moving party.”); Lovelace v. Anderson, 366 Md. 690, 695 , 785 A.2d 726, 728 (2001) (In reviewing a grant of the defendants’ motions for summary judgment, “we must review the facts, and all inferences therefrom, in the light most favorable to the plaintiffs.”).

If no material facts are in dispute, this Court must determine whether the Circuit Court correctly entered summary judgment as a matter of law. Anderson, 404 Md. at 571 , 948 A.2d at 18 ; Rodriguez, 400 Md. at 70 , 926 A.2d at 754 ; Saks, 399 Md. at 82 , 923 A.2d at 6 ; Property and Casualty Ins. Guaranty Corp. v. Yanni, 397 Md. 474, 480-81 , 919 A.2d 1, 5 (2007); Standard Fire Ins. Co. v. Berrett, 395 Md. 439, 451 , 910 A.2d 1072, 1079 (2006).

On appeal from an order entering summary judgment, we review “only the grounds upon which the trial court relied in granting summary judgment.” Rodriguez, 400 Md. at 70 , 926 A.2d at 754 , quoting Standard Fire, 395 Md. at 450 , 910 A.2d at 1079 ; Eid v. Duke, 373 Md. 2, 10 , 816 A.2d 844, 849 (2003), quoting Lovelace, 366 Md. at 695 , 785 A.2d at 729 . The standard of review for a declaratory judgment entered as a result of the grant of a motion for summary judgment is “whether that declaration was correct as a matter of law.” Olde Severna Park Improvement Ass’n, Inc. v. Gunby, 402 Md. 317, 329 , 936 A.2d 365, 371 (2007) (citations omitted). We have held that “[wjhile it is permissible for trial courts to resolve matters of law by summary judgment in declara ⁶⁵² tory judgment actions,” Megonnell v. United Services, 368 Md. 633, 642 , 796 A.2d 758, 764 (2002), the court must, in a separate document and in writing, define the rights and obligations of the parties or the status of the thing in controversy. Lovell Land Inc. v. State Highway Admin., 408 Md. 242, 256 , 969 A.2d 284, 292 (2009), citing Union United Methodist v. Burton, 404 Md. 542, 550 , 948 A.2d 1, 5 (2008), Allstate v. State Farm, 363 Md. 106 , 117 n. 1, 767 A.2d 831 , 837 n. 1 (2001).

This requirement is applicable even if the action is not decided in favor of the party seeking the declaratory judgment. Lovell, 408 Md. at 256 , 969 A.2d at 292 , citing Ashton v. Brown, 339 Md. 70, 87 , 660 A.2d 447, 455 (1995).

II

Standing As a “threshold issue,” Norman v. Borison, 192 Md.App. 405, 420 , 994 A.2d 1019 (2010), a litigant must have standing “to invoke the judicial process in a particular instance.” Adams v. Manown, 328 Md. 463, 480 , 615 A.2d 611 (1992). Standing rests on “a ‘legal interest’ such as ‘one of property, one arising out of a contract, one protected against tortious invasion, or one founded on a statute which confers a privilege.’ ” Committee for Responsible Dev. on 25th St. v. Mayor & City Council, 137 Md.App. 60, 72 , 767 A.2d 906 (2001) (quoting Baltimore Steam Co. v. Baltimore Gas & Elec. Co., 123 Md.App. 1, 15 , 716 A.2d 1042 (1998)). “Where there exists a party having standing to bring an action or take an appeal, we shall not ordinarily inquire as to whether another party on the same side also has standing.” Board of License Comm’rs v. Haberlin, 320 Md. 399, 404 , 578 A.2d 215 (1990); see also Garner v. Archers Glen Partners, Inc., 405 Md. 43, 54 , 949 A.2d 639 (2008); Dorsey v. Bethel A.M.E. Church, 375 Md. 59 , 67 n. 1, 825 A.2d 388 (2003). As they did in the circuit court, appellants assert three independent, common law bases for standing in this case.

First, “they are intended third party beneficiaries” of the Easement Agreement. Second, “the Easement Agreement created a charitable trust, which is enforceable by interested ⁶⁵³ third parties such as [ajppellants.” Third, “they will be ‘specially harmed’ by the proposed Creamery Operation in a manner different from the public at large.” We shall address each of these arguments in turn. A. Third-Party Beneficiary Appellants argue that they are intended third-party beneficiaries of the Easement Agreement and the restrictive covenant as to the use of Bellevale Farm. 7 They state that the Easement Agreement was intended to benefit (1) the general public, (2) other property owners who placed their property in easements, and/or (3) persons who own land adjacent to or nearby Bellevale Farm. In First United Pentecostal Church v. Seibert, 22 Md.App. 434, 440 , 323 A.2d 668 (1974), we recognized that while “modern courts have refused to be bound by technical rules in determining the right to enforce ... restrictive agreements ... they always have required that the covenant be made with or for the benefit of the party seeking to enforce it.” In Mackubin v. Curtiss-Wright Corp., 190 Md. 52 , 57 A.2d 318 (1948), the Court of Appeals addressed the rights of third-party beneficiaries to enforce a contract: 8 The original rule of the common law was that privity between the plaintiff and the defendant is requisite to maintain an action on a contract, even though the contract is for the benefit of a third person.

There has been a gradual relaxation of this rule.... The Courts now generally recog ⁶⁵⁴ nize the right of a third-party beneficiary to sue on a contract made expressly for the benefit of either a donee beneficiary or a creditor beneficiary. A third person is a donee beneficiary where it appears that the purpose of the promisee in obtaining the promise of the performance thereof is to make a gift to the beneficiary or to confer upon him a right against the promisor to some performance neither due nor supposed or asserted to be due from the promisee to the beneficiary. A third person is a creditor beneficiary where no purpose to make a gift appears and performance of the promise will satisfy an actual or supposed or asserted duty of the promisee to the beneficiary, or a right of the beneficiary against the promisee which has been barred by the Statute of Limitations, or by a discharge in bankruptcy, or which is unenforceable because of the Statute of Frauds____[But] before [such] a stranger to a contract can avail himself of the exceptional privilege of suing for a breach thereof, he must at least show that it was intended for his direct benefit____In order to recover it is essential that the beneficiary shall be the real promisee; i.e., that the promise shall be made to him in fact, though not in form.

It is not enough that the contract may operate to his benefit. It must clearly appear that the parties intend to recognize him as the primary party in interest and as privy to the promise. Id. at 56-58 , 57 A.2d 318 (internal citations omitted). See also CR-RSC Tower I, LLC v. RSC Tower I, LLC, 202 Md.App. 307, 352-354 , 32 A.3d 456, 483-484 (2011). “The primary source for determining whether the parties intended a third party to have standing to enforce the contractual provisions is the language of the contract itself.” Volcjak v. Washington County Hosp.

Ass’n, 124 Md.App. 481, 509 , 723 A.2d 463 (1999). In some cases, the contract may clearly express an intended third party beneficiary, see Schlicht v. Wengert, 178 Md. 629, 634 , 15 A.2d 911 (1940), but the absence of a clear expression is not necessarily decisive, for “[i]f the meaning of the instrument is not clear from its terms,” Belleview Constr. Co. v. Rugby Hall Community ⁶⁵⁵ Ass’n, 321 Md. 152, 157 , 582 A.2d 493 (1990) (emphasis added), “a party seeking enforcement [may] show an unexpressed intention by inference from ... the circumstances” surrounding the execution of the contract. Schlicht 178 Md. at 634 , 15 A.2d 911 . “Extrinsic evidence is only utilized when the intent of the parties and the purpose of a restrictive covenant cannot be divined from the actual language of the covenant in question[.]” City of Bowie v. MIE Props., Inc., 398 Md. 657, 681 , 922 A.2d 509 (2007) (emphasis added).

In such instances, extrinsic evidence “should 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.” Belleview, 321 Md. at 157-158 , 582 A.2d 493 (1990) (quoting Baltimore Butchers Abattoir & Live Stock Co. v. Union Rendering Co., 179 Md. 117, 122 , 17 A.2d 130 (1941)). 9 “Construction of a contract is generally a matter of law for the court,” 10 including “whether the parties intended a third party to have standing to enforce ... contractual provisions,” Volcjak v. Washington County Hosp. Ass’n, 124 Md.App. 481, 509 , 723 A.2d 463 (1999), although, technically, “[w]ho was intended to benefit from the covenant, with the correlative right to enforce the restrictions, presents a fact question which turns upon the intention of the original parties to the agreement.” First United Pentecostal Church v. Seibert, 22 Md.App. 434, 440 , 323 A.2d 668 (1974). 11 Here, the Easement Agreement states that it is: ⁶⁵⁶ by and between BELLEVALE FARM LIMITED PARTNERSHIP, a Maryland Limited Partnership, party of the first part, “Grantor”, and the STATE OF MARYLAND, to the use of the Department of Agriculture on behalf of the Maryland Agricultural Land Preservation Foundation, party of the second part, “Grantee”____ Section B(5) of the Easement Agreement provides: If the easement or any covenant, condition, limitation or restriction herein contained is violated or breached, the Grantee may after due notice to the Grantor, the Grantor’s personal representatives, successors or assigns, institute an action in equity to enjoin, by ex parte, temporary or permanent injunction, such violation or breach; to require the restoration of the above described land to its condition prior to such other legal action as may be necessary to insure compliance with the easement and the covenants, conditions, limitations and restrictions herein contained. (Emphasis added). Section B(7) further provides that “[t]his easement does not grant the public any right to access or any right of use of the ... land.” Thus, the Easement Agreement clearly states that the State, as the grantee, may enforce the easement, and expressly limits public access and use of the land.

There is no express statement in the Easement Agreement that others who have placed their property under MALPF easements, the general public, or adjoining property owners, are intended third-party beneficiaries to the Easement Agreement. There is also no mention of these parties, or of any of the claimed beneficiaries except as they are denied rights in § B(7). “[Although it is not necessary to the creation of third-party beneficiary status that an intended beneficiary be specifically mentioned in the contract ... the lack of acknowledgment is certainly a factor to consider.” ⁶⁵⁷ Lovell Land, Inc. v. State Highway Admin., 408 Md. 242, 265 , 969 A.2d 284 (2009). 12 Appellants do not explain why it is not “clear from its terms” that it was the parties’ intent that enforcement of the Easement Agreement lies solely with the State. They instead proceed directly to extrinsic evidence, 13 which we only consider if the intent of the parties and the purpose of the contract cannot be determined by the language of the Easement Agreement, to argue that they are intended beneficiaries of the easement. But, even if we assume that the intent of the parties is unclear and we consider the extrinsic evidence submitted by appellants, we are not persuaded that they are anything more than incidental beneficiaries of the Easement Agreement, and, as such, are not entitled to enforce the Easement Agreement.

See, e.g., Mackubin v. Curtiss-Wright Corp., 190 Md. 52, 57 , 57 A.2d 818 (1948) (An incidental beneficiary may benefit from the contract, but it “acquires by virtue of the promise no right against the promisor or the promisee.”). As explained in illustration 6 of the Restatement (Third) of Property: Servitudes, § 2.11, A, B, and C are neighbors. A owns Blackacre, B owns Whiteacre, C owns Greenacre. A conveys Blackacre to D, subject to a covenant that D will maintain the landscaping on Blackacre so that it does not interfere with the view from Whiteacre.

The deed states that the covenant runs with the land for the benefit of Whiteacre. Although Greenacre also enjoys a view across Blackacre, the holder of Greenacre is an incidental, not an intended, beneficiary of the servitude. ⁶⁵⁸ Finally, relying on cases from other jurisdictions, appellants also argue that, as a community association, LGVA has standing to enforce the Easement Agreement as a conservation easement. See Friends of the Shawangunks, Inc. v. Clark, 585 F.Supp. 195, 199-200 (N.D.N.Y.1984), rev’d on other grounds, 754 F.2d 446 (2d Cir.1985) (organization with the mission to preserve the area in question had standing to enforce an existing conservation easement held by United States Department of the Interior under the Land and Water Conservation Fund Act of 1965); Tenn. Envtl.

Council, Inc. v. Bright Par 3 Assocs., 2004 WL 419720 , 2004 Tenn.App. LEXIS 155 (Tenn.Ct.App. Mar. 8, 2004) (any citizen of Tennessee is a beneficiary of a conservation easement held by the City of Chattanooga pursuant to state law, and able to establish standing). We, however, have found no Maryland authority, nor do appellants cite to any, to support the grant of standing to a community association that is not the intended beneficiary of the easement. “It has been generally recognized in this State that an association lacks standing to sue where it has no property interest of its own—separate and distinct from that of its individual members—which may be affected by any of the alleged acts under attack.” Citizens Planning & Housing Asso. v. County Executive of Baltimore County, 273 Md. 333, 345 , 329 A.2d 681 (1974); see also Maryland Ass’n of HMOs v. Health Servs. Cost Review Comm’n, 356 Md. 581, 589 , 741 A.2d 483 (1999); Michael Sarbanes & Kathleen Skullney, Taking Communities Seriously: Should Community Associations Have Standing in Maryland?, 6 Md. J. Contemp. L. Issues 283 (1995). 14 We also note Bellevale’s observation that, subsequent to the creation of the instant Easement Agree ⁶⁵⁹ ment, it granted an easement identified as a conservation easement on a different part of its property, naming as grantees both MALPF and the Long Green Valley Conservancy, Inc., “a not for profit organization established to preserve farmland and the rural character of the Long Green Valley.” 15 B. Charitable Trust Appellants also argue that, as a conservation easement, the Easement Agreement represents a charitable trust enforceable by “any interested person,” and confers standing on both LGVA and the Yoders. ⁶⁶⁰ Generally speaking, “[a] conservation easement is a legal agreement between a landowner and [a grantee] that restricts the potential uses of the land at issue in order to prevent it from being developed for commercial or industrial uses or for housing developments.” Md. Envtl.

Trust v. Gaynor, 370 Md. 89 , 92 n. 1, 803 A.2d 512 (2002) (internal citations omitted). “Conservation easements-which .are held by an individual or an entity-are easements in gross. A person need not own a particular piece of land to enjoy the benefit of a conservation easement.” Matthew J. Richardson, Note, Conservation Easements as Charitable Trusts in Kansas: Striking the Appropriate Balance Among the Grantor’s Intent, the Public’s Interest, and the Need for Flexibility, 49 Washburn L.J. 175 , 178 (2009). “Although not required by the easement enabling legislation in most states, the vast majority of conservation easements conveyed to date ... were drafted to protect the particular land they encumber ‘in perpetuity.’ ” Nancy A. McLaughlin, Conservation Easements: Perpetuity and Beyond, 34 Ecol. L.Q. 673, 675 (2007). Indeed, because “conservation easements are usually intended to last forever,” they “are known as perpetual easements.” Id. at 674.

In Maryland, § 2-118 of the Real Property article, entitled “Conservation easements; grants to certain trusts,” governs conservation easements: (a) Creation and enforcement of conservation easements for certain purposes.—Any restriction prohibiting or limiting the use of water or land areas, or any improvement or appurtenance thereto, for any of the purposes listed in subsection (b) of this section whether drafted in the form of an easement, covenant, restriction, or condition, creates an incorporeal property interest in the water or land areas, or the improvement or appurtenance thereto, so restricted, which is enforceable in both law and equity in the same manner as an easement or servitude with respect to the water or land areas, or the improvement or appurtenance thereto, if the restriction is executed in compliance with the ⁶⁶¹ requirements of this article for the execution of deeds or the Estates and Trusts Article for the execution of wills. Subsection (b)(8) includes “acts or uses having any relation to the preservation of water or land areas or the improvement or appurtenance thereto” as a proper purpose of a conservation easement. The Maryland Environmental Trust (MET), which is governed under § 3-201 et seq. of the Natural Resources article, is, in Maryland, the “public agency that holds or co-holds most of the conservation easements in the State.” Jessica E. Jay, Third-Party Enforcement of Conservation Easements, 29 Vt. L.Rev. 757, 773 (2005).

See Md. Envtl. Trust v. Gaynor, 370 Md. 89 , 92 n. 1, 803 A.2d 512 (2002) (“A conservation easement is a legal agreement between a landowner and MET[.]”). “[B]y accepting donated conservation easements ... the State undertakes to enforce the restriction [in the easements] in perpetuity.” Id. at 92 , 803 A.2d 512 . Easements purchased by MALPF or the State for the benefit of MALPF under subtitle 5 of article 2 of the Agriculture article are described as “agricultural” or “agricultural preservation” easements, see MD. CODE ANN., AGRIC. § 2-510(k)(1) (“the Foundation shall notify in writing each landowner who sells an agricultural easement to the Foundation”); Md. Agric.

Land Pres. Found, v. Claggett, 412 Md. 45, 52 , 985 A.2d 565 (2009) (conveyance of “an agricultural preservation easement to the Foundation”), including in the Easement Agreement in the instant case. But MALPF also refers to them as “conservation” easements. See MALPF Five-Year Report for FY 2003 through FY 2007, Program Overview (“Including FY 2007 funds, MALPF has now cumulatively purchased or has a pending contract to purchase permanent conservation easements on 1,933 farms with 265,691 acres.”); see also supra n. 15.

A trust is “a fiduciary relationship with respect to property, subjecting the person by whom the title to the property is held to equitable duties in dealing with the property for the benefit of another person, which arises as a result of ⁶⁶² a manifestation of an intention to create it.” From the Heart Church Ministries, Inc. v. Philadelphia-Baltimore Annual Conf., 184 Md.App. 11, 25 , 964 A.2d 215 (2009) (quoting Restatement (Second) of Trusts, § 2). “The person who creates a trust is the settlor.” Id. (quoting Restatement, § 3). “A charitable trust is a fiduciary relationship with respect to property arising as a result of a manifestation of an intention to create it, and subjecting the person by whom the property is held to equitable duties to deal with the property for a charitable purpose.” Rosser v. Prem, 52 Md.App. 367, 374 , 449 A.2d 461 (1982) (quoting Restatement, § 348) (emphasis added). “[RJecognized as a vehicle to hold trust property for the general public’s benefit,” Jessica E. Jay, Third-Party Enforcement of Conservation Easements, 29 Vt. L.Rev. 757, 773 (2005), charitable trusts “should be liberally construed so as to give them effect if possible.” Rosser, 52 Md.App. at 380 n. 13, 449 A.2d 461 (quoting Baily v. McElroy, 120 Ohio App. 85 , 195 N.E.2d 559, 566 (1963)). Between private trusts and charitable trusts, [t]he fundamental distinction ... is that in the case of a private trust[,J property is devoted to the use of specified persons who are designated as beneficiaries of the trust; whereas in the case of a charitable trust[,J property is devoted to purposes beneficial to the community....

There cannot be a private trust unless there is a beneficiary who is definitely ascertained at the time of the creation of the trust or definitely ascertainable within the period of the rule against perpetuities. On the other hand, a charitable trust can be created although there is no definite or definitely ascertainably beneficiary designated, and a charitable trust is not invalid although by the terms of the trust it is to continue for an indefinite or unlimited period. Restatement, Introductory Note to Chapter 11. See also Charles McHenry Howard, Charitable Trusts in Maryland, 1 Md. L.Rev. 105, 105 (1937) (“It is commonly said that charitable trusts have three leading and distinguishing features, viz: 1.

They must be for the benefit of the public generally, or some considerable portion of it; 2. Their beneficiaries must ⁶⁶³ necessarily be indefinite; 3. Their duration is not restricted by the rule against perpetuities.”). For example, “a bequest in trust to complete the education of a poor orphan, in whom the testator had a purely charitable interest, would be a good private trust and enforceable as such, [but] would not be a charitable trust under both the first and second requirements above stated.” Id. at 106 .

Sections 14-301 and 14-302 of the Estates and Trust article govern charitable trusts. Under § 14-301(a), “[e]ourts of equity have full jurisdiction to enforce trusts for charitable purposes upon suit of the State by the Attorney General or suit of any person having an interest in enforcement of the trust.” (Emphasis added). Section 14-302(a) provides, [i]f a trust for charity is or becomes illegal, or impossible or impracticable of enforcement or if a devise or bequest for charity, at the time it was intended to become effective, is illegal, or impossible or impracticable of enforcement, and if the settlor or testator manifested a general intention to devote the property to charity, a court of equity, on application of any trustee, or any interested person, or the Attorney General of the State, may order an administration of the trust, devise or bequest as nearly as possible to fulfill the general charitable intention of the settlor or testator. (Emphasis added). 16 Section 2-118(e) of the Real Property article refers to both MALPF and § § 14-301 and 14-302 of the Estates and Trust article: (e) Grant to Maryland Agricultural Land Preservation Foundation, Maryland Historical Trust, or Maryland Environmental Trust.—If any grant, reservation, dedication, devise, or gift of any nature which clearly indicates the ⁶⁶⁴ maker’s intention to subject any interest or estate in property to public use for the preservation of agricultural, historic, or environmental qualities fails to specify a grantee, donee, legatee, or beneficiary to receive the same or specifies a grantee, donee, legatee, or beneficiary who is not legally capable of taking the interest or estate, it passes to the Maryland Agricultural Land Preservation Foundation, the Maryland Historical Trust, or the Maryland Environmental Trust in any proceedings under §§ 14-301 and 14-302 of the Estates and Trusts Article. 17 (Emphasis added).

The application of charitable trust doctrine to conservation easements is still in its infancy, both nationwide and in Maryland. See Matthew J. Richardson, Note, Conservation Easements as Charitable Trusts in Kansas: Striking the Appropriate Balance Among the Grantor’s Intent, the Public’s Interest, and the Need for Flexibility, 49 Washburn L.J. 175 , 188 (2009) (“case law dealing with conservation easements is sparse, and fewer cases specifically address whether such easements create charitable trusts”); Alexander R. Arpad, Comment, Private Transactions, Public Benefits, and Perpetual Control Over the Use of Real Property: Interpreting Conservation Easements as Charitable Trusts, 37 Real Prop. Prob. & Tr. J. 91 , 94 (2002) (“The proposition that conservation easements may be interpreted as trusts is not entirely novel, but no serious attention has been given to trust law in the literature or the recorded cases on conservation easements.”).

The application of trust law to conservation easements is “not beyond comprehension.” Jessica E. Jay, Third-Party ⁶⁶⁵ Enforcement of Conservation Easements, 29 Vt. L.Rev. 757, 776 (2005). It depends upon a state’s specific public charity statutory or common laws involving charitable trust property, the grant- or’s intent, and the property subject to the trust. A simplified (perhaps overly so) analysis of the charitable trust doctrine could yield an argument that the doctrine potentially supports attorney general [or third-party] standing to enforce conservation easements when and if a conservation easement is characterized as property held in trust for the public’s benefit, akin to any other property of a charitable trust.

Extending the doctrine further, a conservation easement grantor’s intent in perpetually protecting his or her property through use of a conservation easement would need to suffice as, or be substituted with, the trust creator’s intent to create a charitable trust. Further, the land trust holding the conservation easement would have to fit the definition of a public charity or charitable trust in order for the analogy of a conservation easement donated by a property owner to a land trust to property placed in a charitable trust for the public’s benefit to be viable. Id. at 776-777. The primary benefit of construing a conservation easement as a charitable trust is the doctrine of cy pres, which is “[o]ne of the unique features of the law of charitable trusts.” Ronald R. Volkmer, The Nebraska Uniform Trust Code: Nebraska Trust Law in Transition, 37 Creighton L.Rev. 61, 79 (2003).

Historically, [u]nder this doctrine, if a donor showed a general intent to devote his gift to charitable purposes; and the gift failed because the specific purpose directed was too indefinite to be carried out, or was otherwise unenforceable; or if the trust while originally useful became subsequently impracticable for further administration ... the chancery court might direct the application of the charitable fund to some other purpose or purposes which it might determine to be ‘near’ (pres) to the charitable purpose designated by the testator or founder. ⁶⁶⁶ Charles McHenry Howard, Charitable Trusts in Maryland, 1 Md. L.Rev. 105, 106-107 (1937). 18 Cy pres would also require court approval to modify or terminate conservation easements: Because [a grantee] holds a ... perpetual conservation easement in trust for the benefit of the public, it should not be free to simply agree with the owner of the encumbered land to terminate the easement, or modify it in contravention of its purpose, even in exchange for cash or other compensation. Rather, to deviate from the stated purpose of the easement, either through outright termination or by substantially amending the easement, the municipality or land trust should be required to obtain court approval in a cy pres proceeding. In such a proceeding: (i) it would have to be established that the charitable purpose of the easement has become “impossible or impractical;” and (ii) if such a showing is made, the court would supervise the modification or termination of the easement, the payment of compensation to the holder equal to the value of the rights relinquished, and the holder’s use of such compensation to accomplish similar conservation purposes in some other manner or location. McLaughlin, 34 Ecol.

L.Q. at 681. In practice, cy pres could serve as a basis for extending standing where citizens who are not parties to an easement sue to enforce the easement. Matthew J. Richardson, Note, Conservation Easements as Charitable Trusts in Kansas: Striking the Appropriate Balance Among the Grantor’s Intent, the Public’s Interest, and the Need for Flexibility, 49 Washburn L.J. 175 ,176 (2009) ⁶⁶⁷ Those who support treating conservation easements as charitable trusts argue, [e]onstruing conservation easements as charitable trusts ensures that both the trust settlor’s intentions are honored and that the public’s interest in the conservation easement is protected. Placing conservation easements within the framework of charitable trust law also allows courts to use cy pres to modify or terminate conservation easements that have become impracticable.

Applying the doctrine of cy ;pres to conservation easements is a feasible solution to complaints that perpetual conservation easements are impractical, while court oversight protects the public’s interest in conservation easements. Id. at 192. Nationwide, few cases have examined the application of the charitable trust doctrine to conservation or similar easements. In Cohen v. Lynn, 33 Mass.App.Ct. 271 , 598 N.E.2d 682 (1992), two grantors conveyed a parcel of land to the City of Lynn to be used “forever for park purposes.” Id. at 274 , 598 N.E.2d 682 .

The City “appropriated $12,000 toward the $20,000 purchase price,” and later leased the parcel to the Metropolitan Park Commission for 99 years for park purposes. Id. at 276 , 598 N.E.2d 682 . Upon the expiration of the lease, the City, claiming that the land was “no longer usable for park purposes,” sold a portion of the land to a developer. Id. at 272 , 598 N.E.2d 682 .

Under a Massachusetts law that granted taxpayers of the city standing to enforce the terms of a trust arising from a conveyance granted to the city, a group of taxpayers sought “a judgment declaring that the conveyance [to the developer] violated the city’s obligations under a public charitable trust which they claimed arose in 1893 when the parcel was acquired by deeds which state that the land is to be used ‘forever for park purposes.’ ” Id. On appeal, the Appeals Court of Massachusetts held that the language “forever for park purposes,” coupled with “[t]he circumstances attending the conveyances to the city[, which] evidence a general plan to dedicate the land permanently to ⁶⁶⁸ public park purposes,” was sufficient to establish the grantors’ intention to create a charitable trust, even though the grantors had received consideration for the easement. Id. at 275 , 598 N.E.2d 682 . The court observed, “[w]e have found no authority, nor is any cited to us, to the effect that the receipt of substantial consideration prevents a grantor from conveying property to a municipality in such manner as to establish a public charitable trust.” Id. at 276 , 598 N.E.2d 682 .

In Three Bills, Inc. v. City of Parma, 111 Ohio App.3d 740 , 676 N.E.2d 1273 (1996), a developer, as required by ordinance, “dedicated” a portion of land to the City for “parks and green area purposes.” Id. at 743 , 676 N.E.2d 1273 . Later, the City leased the property to a broadcasting company, which built “a communications tower, service road, and maintenance building on the property.” Id. The developer filed suit against the City and the broadcasting company “to restore the property to its previous condition and prohibit its use for commercial purposes.” Id. “Assuming without deciding that a trust was created” by the dedication of the land, the Court of Appeals of Ohio held that the developer was without standing, because under Ohio case law, settlors and their successors could not sue to enforce a trust. Id. at 745 , 676 N.E.2d 1273 .

The court noted that “[a] settlor within the meaning of the law of trusts is the person who creates the trust. Thus, for the purposes of this case, [the developer was] the settlor[ ] of a charitable trust.” Id. The court also recognized that [t]he public, in as much as they are beneficiaries of charitable trusts, have a right to enforce their construction. In the same respect, adjacent property owners have a special interest, in as much as they are beneficiaries of restrictive covenants, which enable them to maintain an action to enjoin misuse of public lands.

Nonetheless, [the developer] did not produce any evidence in the record proving they owned property in [the City], adjacent to the land in question or otherwise, nor did they even allege in the complaint that they owned property in [the City] ... Accordingly, [the developer] lacks standing to enforce the construction of a ⁶⁶⁹ charitable trust and to enforce the terms of a restrictive covenant. Id. at 745-46 , 676 N.E.2d 1273 . In Hicks ex rel.

Bd. of Trs. of the Scenic Pres. Trust v. Dowd, 157 P.3d 914 (Wy.2007), Lowham Limited Partnership owned a ranch in Johnson County, Wyoming. In 1993, it executed a “Deed of Conservation Easement and Quit Claim Deed” transferring one acre of the ranch to the Board of County Commissioners of Johnson County and imposing a conservation easement on the remainder of the ranch. The easement was to be in perpetuity unless “unforeseeable circumstances” rendered the continuation of the conversation easement impossible.

In 1997, the Board quitclaimed the one-acre parcel to the Scenic Preserve Trust of Johnson County, “subject to any easements or rights-of-way that have been legally acquired.” Two years later, Lowham Limited Partnership sold the ranch subject to the conservation easement to the Dowds. Later, [i]n 2001, coal bed methane development was contemplated by a company that owned mineral interests underlying [the rjanch. As a result, in June of 2002, the Dowds requested that the Board terminate the conservation easement. The Dowds asserted that coal bed methane development was unpreventable, unanticipated, and inconsistent with the terms of the conservation easement.

The Dowds proposed that the conservation easement could be extinguished if the Board sold them the one-acre parcel and the conservation easement. Id. at 917 . The Board agreed that the proposed development was inconsistent with the purposes of the conservation easement, and transferred the one-acre tract and the conservation easement to the Dowds. Hicks, a resident landowner in Johnson County, filed a complaint alleging that the easement “could not be extinguished until it was judicially determined that unforeseeable circumstances made the continuation of the easement impossi ⁶⁷⁰ ble.” Id.

The Board and the Dowds moved for summary judgment, alleging that Hicks lacked standing to enforce the terms of the Scenic Preserve Trust. The trial court denied their motion for summary judgment, reasoning: (1) the conservation easement had been transferred to a charitable trust, the Scenic Preserve Trust, and (2) Hicks had standing because the easement was accepted for the benefit of Wyoming citizens. On appeal, the Supreme Court of Wyoming stated that [i]n their brief, Appellants do not challenge the district court finding that the Scenic Preserve Trust is a charitable trust. Instead, they agree that the Scenic Preservation Trust is a charitable trust, whether under common law principles or under current statutory law.

Given the district court’s unchallenged finding, we must agree that the Scenic Preserve Trust is a charitable trust. Id. at 919 . The court found, however, that Hicks did not have standing because he was neither the Attorney General, a settlor, or a “qualified beneficiar/’ of the trust, as required under a Wyoming law. 19 Our review of the reported case law 20 reveals that only Hicks involved a conservation easement, and, in that case, the ⁶⁷¹ appellate court was “constrained to agree that a charitable trust was involved because the trial court’s finding on that point was never challenged by the parties.” C. Timothy Lindstrom, Conservation Easements, Common Sense and the Charitable Trust Doctrine, 9 Wyo. L.Rev. 397, 405 (2009).

Three Bills and Cohen involved conveyances and dedications, rather than easements, although “the courts’ rationales and charitable trust analyses [may] illustrate how charitable trust law should govern conservation easements.” Matthew J. Richardson, Note, Conservation Easements as Charitable Trusts in Kansas: Striking the Appropriate Balance Among the Grantor’s Intent, the Public’s Interest, and the Need for Flexibility, 49 Washburn L.J. 175 , 192 (2009). Based on the case law and the relevant statutory authority, and assuming, without deciding, that an agricultural preservation easement purchased by MALPF or the State for the benefit of MALPF qualifies as a “conservation easement,” we are not persuaded that the charitable trust doctrine must be applied to purchased, nonperpetual agricultural preservation easements, nor even that it should, be. We explain. In Maryland, the elements necessary to the creation of a charitable trust are: (1) a fiduciary relationship, (2) duties of trustees, (3) trust property, (4) manifestation of intention, and (5) a charitable purpose.

Rosser v. Prem, 52 Md.App. 367, 377 , 449 A.2d 461 (1982) (citing Restatement (Second) of Trusts, § 348). As to elements (l)-(3), appellants contend: ⁶⁷² These elements may be applied with little difficulty [to the Easement Agreement]. First, the conveyance of an agricultural preservation easement creates a fiduciary