Newell v. Johns Hopkins University

NAZARIAN, J. This case has generated a lot of publicity and emotion, and understandably so. Elizabeth Banks was renowned, even revered, for her opposition to development in Montgomery County. Ms. Banks had owned and lived on property known for more than a century as the Belward Farm (the “Farm”), and she undoubtedly had a vision of how The Johns Hopkins University (“Hopkins”) could, and would, steward her beloved family land after she and her siblings conveyed the Farm to Hopkins in 1989. Her heirs and surviving family (the “Family”) argued in the Circuit Court for Montgomery County, and argue here, that Ms. Banks would not approve Hopkins’s current plans to develop the Farm, and Hopkins does not contend otherwise.

But whether Ms. Banks would approve Hopkins’s current plans is not the question before us. Instead, this case turns on the terms of a contract and deed that the parties executed nearly twenty-five years ago. The Family does not dispute the validity of the conveyance, or that Hopkins emerged from the transaction with the right to develop the Farm for “agricultural, academic, research and development, delivery of health and medical care and services, or related purposes,” or that the proposed “ ‘mixed-use’ research park that ‘brings together university, government and private research’ ” would use the Farm entirely for those allowed purposes. The Family argued below, and argues here, that the scale, density, and lessor/lessee structure of Hopkins’s current plans violate the terms of the parties’ agreement, and that the circuit court erred in finding their contract not to be ambiguous, and in declining to consider extrinsic evidence of the parties’ (particularly Ms. Banks’s) intentions and visions when defining Hop ²²⁰ kins’s rights to develop the Farm, and thus in granting summary judgment for Hopkins.

We understand the Family’s frustration as they face the increasingly likely prospect that the Farm will transform into a campus that they believe Ms. Banks would never have countenanced. But although the Family may now regret that Ms. Banks and her siblings conveyed the Farm to Hopkins, or at least that they did not negotiate different terms, we agree with the circuit court that the operative contract frames Hopkins’s development rights solely and unambiguously in terms of permissible uses. Unlike hindsight, foresight is not 20/20, and whether anyone specifically envisioned the proposed development, the contract permits it. We affirm the judgment of the circuit court.

I. BACKGROUND ... for agricultural, academic, research and development, delivery of health and medical care and services, or related purposes only ... According to Hopkins, the case boils down entirely to these eighteen words, which appear in Paragraph 13 of the Amended and Restated Contract of Sale (the “use restriction clause”) and define the uses to which Hopkins agreed, as a condition of receiving the property on generous terms, to limit its future development of the Farm. The story is more complicated than that, of course. Although there is no dispute about the threshold validity of the conveyance, the Family reads the governing documents to limit Hopkins in other ways, and contends that the terms of those documents are ambiguous and must be augmented with extrinsic evidence.

We ultimately agree with the circuit court’s decision that the language of the contract is unambiguous, but the broader context is important to understanding why. 1 ²²¹ Ms. Banks was the latest caretaker of the Farm, a 138-acre property in Montgomery County that had been in her family for over 100 years. Although she was the only resident of the property, she co-owned it (she held more than two-thirds) with her sister and brother and was the lead decision-maker about its use and ultimate disposition. By the 1980s, properties surrounding the Farm had been developed in ways Ms. Banks disliked. Not only did she make no secret of her opposition to Montgomery County’s efforts to develop that part of the County, she actively and successfully rebuffed 2 numerous efforts to develop the Farm itself: For 30 years, I have had to protect my farm from federal government installations, state and county highways, all brought on [by] planners who want to rearrange everything every few years, never giving me a rest.

Developers and others have tried to buy my land for housing and office buildings. With the help of the Good Lord and many, many true friends and the community, I have been able to keep my land mostly intact and continue farming. It has not been easy. [¶] I want the land to stand for something important for future generations. According to her nephew Timothy Newell (the lead plaintiff in this litigation), Ms. Banks rejected offers from the County to develop a research park on the Farm no fewer than three times, and stiff-armed other efforts to buy and develop the property.

In the early 1980s, the County imposed assessments to pay for widening roads, including those surrounding the Farm. The County’s assessment to Ms. Banks totaled approximately $1.5 million, and she could not afford to pay it. As a result, Ms. Banks began exploring the possibility of selling the Farm, and she had conversations with several institutions. In 1987, Ms. Banks entered into discussions with Hopkins about a possible sale-and-gift transaction that, among other things, ²²² would allow her to live on the Farm for the rest of her life in a new house that Hopkins would build.

Ms. Banks had had positive experiences with Hopkins throughout her life (the hospital had cared well for her and her mother and she was close to former United States Senator George Radcliffe, a Hopkins alumnus), and she saw the donation as a way to ensure that the Farm did not become a commercial or residential development — to her, evidently, the worst possible outcome. The parties executed a Contract of Sale on August 22, 1988, then restated and amended the contract in an Amended and Restated Contract of Sale they signed on December 10, 1988. 3 The Contract lists Hopkins as the Buyer and Ms. Banks and her sister and brother as the Sellers. In broad strokes, Hopkins agreed to pay the Sellers $5 million in cash — $8 million at settlement and $2 million on or before the third anniversary of settlement — and to settle in January 1989. 4 The recitals “reeognize[d] that the purchase price ... does not represent the fair market value of the [Farm] (including applicable restrictions on future use),” that “[t]he Sellers ²²³ intend to make a charitable contribution to the Buyer to the extent of the excess of the actual fair market value ... over the recited purchase price____” Ms. Banks was able to claim a significant tax deduction for the donation to Hopkins, the “combined gift value” of which Hopkins placed at $15 million. And Hopkins “paid” consideration beyond the cash payments: it also assumed the $1.6 million in County assessments and built Ms. Banks a small house that she occupied until her death. 5 In exchange, Hopkins took fee simple title to the Farm, subject to use restrictions defined in the three paragraphs that lie at the heart of this case.

First, and most significantly, Paragraph 13 of the Contract divided the Farm into two parcels — Parcel A, approximately thirty acres adjacent to the road and Parcel B, approximately ninety-eight acres — and defined Hopkins’s rights to use and develop each: 13. Use Restrictions. For a period of no less than the shorter of (a) fifty (50) years from the date the [Farm] is transferred to the Buyer, or (b) 21 years from the death of the last to survive of the now living grandchildren of each of Roland L. Banks, Jr. and Beulah F. Newell, the Buyer shall not dispose of its fee interest in [Parcel B] ..., and Buyer shall further limit its use of such portion of the Land, if any use thereof is made, for agricultural, academic, research and development, delivery of health and medical care and services, or related purposes only, which uses may specifically include but not be limited to development of a research campus in affiliation with one or more divisions of the Buyer. Moreover, during said period of time, the Buyer shall maintain such portion of the Land in a well kept and attractive fashion and shall preserve on such portion of the ²²⁴ Land an appropriate wooded and fenced buffer area between [certain designated] portions of the Land....

Such portion of the land shall be known as the “Belward Campus of the Johns Hopkins University.” The restrictions on Buyer’s use of the [Farm] set forth in this paragraph shall be enforced by a covenant to be contained in the deed conveying the [Farm] to Buyer for the benefit of Sellers and their descendants. As to the portion of the Land consisting of 30 acres more or less[, i.e., Parcel A], there shall be no limitations on the Buyer’s use or disposition thereof. (Emphasis added.) A Deed that mirrored the use restriction clause accompanied the Contract and was duly executed at settlement. Second, in Paragraph 14, the parties “understood] and agree[d] that the use of the [Farm] contemplated by the Buyer will require a change in the current zoning classification of the [Farm],” and the Family agreed “to cooperate with and assist” Hopkins “in the prosecution of the application for the zoning change and any appeals.... ” And third, in Paragraph 15, the parties also agreed that to the extent any part of the Farm was sold, proceeds were to be used to create or supplement a scholarship fund in Ms. Banks’s name.

The Contract and Deed followed about a year-and-a-half of discussion and negotiation between Hopkins and the Family, from early 1987 through the signing of the original Contract in August 1988. Throughout that time, the Family was represented by counsel and had numerous opportunities to review and have input in its language and substance (such as the elimination of the rezoning contingency). It does not appear, however, that the terms of Paragraphs 13 through 15 were changed over the course of negotiations other than to renumber them between the Contract and the Amended Contract to track other changes. Ms. Banks’s sister, Bea Newell, provided specific comments on the draft in June 1988, but the record reflects no other written proposed revisions from the Sellers.

And although Mr. Newell recalled that counsel for the Family thought the language of Paragraph 13 “too loose,” the lan ²²⁵ guage was never negotiated or revised: circulated drafts of the Contract contain no marked revisions to it. The Contract also contained an integration clause. According to the Family, Ms. Banks agreed to convey the Farm, and to make “the enormous financial sacrifice that [the Sellers’] bargain sale of the property entailed,” only because she believed that it would become a Hopkins campus. Moreover, the Family maintained that Hopkins “was acutely aware” of Ms. Banks’s wish to preserve the Farm, as one of its ranks articulated that “[i]f there is one overriding concern to Ms. Banks it is that development of her property be accomplished so as to leave it relatively open and spacious with attention to the beauty of the environment.” And in fact, the paper trail at Hopkins and the recollections of its development personnel reflect an understanding that Ms. Banks was vehement in her wishes not to turn the Farm over to developers.

John Dear-den, a Hopkins official who worked most closely with Ms. Banks over the course of negotiations, was aware of “the Owners’ motivations and intentions” throughout, according to Mr. Newell. The ensuing dispute arose not because Hopkins reneged on its agreement to maintain the Farm as a “campus,” but because the campus Hopkins now plans to build is more dense, less pastoral, and less Hopkins-centric than the campus the Family says that Ms. Banks contemplated. At the outset, though, the parties understood that before any of the development contemplated by the Contract could begin, Hopkins would have to have the Farm rezoned (Paragraph 15 acknowledges this). The Farm fell within a part of the County covered by the “Shady Grove Study Area Master Plan” (the “Shady Grove Plan”), a plan the County began considering in early 1990 that described the Farm as “a component of the R & D Village to be developed as a research campus containing R & D uses, 50 university-related residences, and recreational uses.” On February 27, 1990, Ms. Banks and Hopkins officials appeared at a hearing on the Shady Grove Plan that, according to Ms. Banks’s counsel, marked “the only time that the two parties were together and actually communicated ²²⁶ about what they intended with regard to development of the property after that time.” A statement read at the hearing by then-Hopkins President Steven Muller described the “major Hopkins research center” that would serve as the “keystone of the western upper campus quadrangle” on Parcel B. Ms. Banks testified as well, opening with the paragraph (quoted above) about how she thwarted efforts to develop the Farm over the preceding thirty years, then explaining her preference that the Farm become a university campus rather than a housing development: I want the land to stand for something important for future generations.

I do not know whether I can say this or not. I am so proud and grateful that I was able to entrust my farm and its future to a great institution like Johns Hopkins. * * * Hopkins has prepared a plan for future use for the farm as a university research campus. And this is the thing that I am so opposed to — I cannot believe that the County is proposing to put housing, 200 to 500 units, on the farm, knowing full well that I hate housing developments and everything a developer stands for. I have not had the opportunity to travel very often in my life, but I have never seen housing projects on university campuses.

You may not know that Montgomery County Government wanted the farm, even giving me a contract, never mentioning a housing project. It stated I could continue farming and live the rest of my life on the farm. The county would develop, in time, the farm like the Life Science Project. I would appreciate it very much if you would allow Johns Hopkins to carry out their plans so I can see it in my lifetime, some of the things I have worked for all of my life.

I think my family and I deserve that much from Montgomery County. Thank you. I am sorry. The Shady Grove Plan was approved, including the zoning changes Hopkins and the Family supported, in July 1990. ²²⁷ Progress slowed after that.

Hopkins ultimately received approval in 1997 for preliminary development; the later 1997 master plan, which we describe below, called for a “conventional suburban office park model with sprawling, low-density auto-dependent development, vast amounts of surface parking lots, and few community amenities”; the tallest buildings on Parcel B would be 50 feet (four stories) high, according to an expert who prepared a report on behalf of the Family. But these plans never materialized, and development was delayed further. Also in 1997, Hopkins transferred Parcel A to the County— not as a sale but as a transfer in exchange for the County’s agreement to develop infrastructure at the site and to share with Hopkins any income generated from the sale of lots on Parcel A. It was at this point, at least according to Mr. Newell, that Ms. Banks began to wonder if her selection of Hopkins as the Farm’s guardian was the correct choice: “Subsequent to the transfer of Parcel A to the County, [Ms. Banks] told me she had no idea that [Hopkins] would transfer Parcel A to the County. She said this completely shook her confidence in the deal, and, as expressed to me, she rapidly started regretting her decision after that.” Indeed, the Family characterizes the transfer in its brief as “[t]he first dear breach of the Contract and Deed” (emphasis added), although the record does not reveal that Ms. Banks ever took any action or sought to have the transfer undone.

The parties agree that the 1997 rezoning would have limited Hopkins to a “campus” of the type allegedly contemplated by Ms. Banks (albeit, as a Hopkins official testified at the February 1990 hearing, a “major Hopkins research center”). But the wow-current Master Plan approved and adopted by the Montgomery County Planning Department in June 2010 (entitled the Great Seneca Science Corridor Master Plan, or “the Great Seneca Plan”) rezoned the Farm to allow a “revised LSC [Life Sciences Center] Zone to allow higher densities.” Along with higher-density buildings, the Great Seneca Plan created “opportunities for an extensive open space system,” and recommended an increase in “the historic farmstead’s ²²⁸ environmental setting,” nearly doubling the size of the “environmental setting” portion of the Farm. The Great Seneca Plan also provided that development should be “sensitive to the historic resource” by concentrating taller buildings (up to 150 feet tall) in the center of the development and tapering them toward the edges, and it provided for close to 50 acres of open space. The brewing conflict between Hopkins and Ms. Banks came to a head when Hopkins sought approval for the further rezoning the Great Seneca Plan contemplated.

The Family now charges that Hopkins “influenced the County to rezone [the Farm] under a newly-created zone, which permitted much higher-density development than previously.” And whatever the language of the Contract, the Family alleges that Ms. Banks and Hopkins did not see eye-to-eye on the basic concept of the “campus”: • By including the term “campus” in Paragraph 13, Ms. Banks “envisioned a ‘campus’ as the almost idyllic site of an institution of higher learning; accordingly, [Hopkins’s] use of [the property] would protect it from heavy commercial development.” • Ms. Banks believed Hopkins “would maintain at least the bulk of the Farm as an open, green space, just as she had fought to keep it throughout her life,” and evidently with the understanding that the property would develop along the lines of Hopkins’s Homewood Campus in Baltimore (or as Ms. Banks’s niece, Karen Newell, put it, akin to the University of Virginia’s “Jeffersonian brick campus”) — importantly, though, in keeping with Ms. Banks’s vision this campus “would be solely operated and in the name of Johns Hopkins.” • Ms. Banks understood that this idyllic campus would operate only under the auspices of Hopkins. On November 10, 2011, the Family filed suit against Hopkins in the Circuit Court for Montgomery County, seeking a declaratory judgment precluding Hopkins from implementing the amended plan and an injunction prohibiting Hopkins “from ²²⁹ any action that would impair the [Family’s] rights under the Contract and the Deed.” Hopkins filed a Motion to Dismiss or for Summary Judgment on December 19, 2011 (the “Motion to Dismiss”), in which Hopkins argued that it was entitled to summary judgment because the absence in the Contract of scale, height, or density parameters or restrictions on Hopkins’s right to lease Parcel B left it free to develop the Farm, consistent with zoning laws, for the uses Paragraph 13 allowed. 6 Hopkins argued that there were no disputed material facts, and that the only “facts” were found in the language in the Deed itself. According to Hopkins, the restrictions in Paragraph 13 of the Contract were “not ambiguous and should be enforced according to the language appearing within the four corners of the document”; and because the resolution of these two issues did not depend on any subsequent approval from the County, Hopkins was entitled to summary judgment. Differently put, in Hopkins’s view, the plain language of the Contract precluded consideration of anything other than that language, which in turn did not restrict Hopkins from building taller buildings or creating a more dense campus or leasing space to others.

Hopkins sought a declaratory judgment to that effect. After a hearing, the circuit court issued a written opinion on March 9, 2012 that denied the Motion to Dismiss. The circuit court found that “reasonable minds could differ” about the meaning of the use restriction. The court explained that certain phrases in the Contract gave rise to ambiguity “[a]t this early stage la litigation,” and that the meaning of the phrases at issue need not be decided “at this juncture.” The court also pointed out that the lack of restrictions on Parcel A suggested “that the parties may have intended restrictions on Parcel B that went to the overall scope of development and not just the uses spelled out in the Contract,” and that the requirement that Parcel B be known as the “Belward Campus ²³⁰ of the Johns Hopkins University” similarly raised a question as to the parties’ agreement.

The court concluded that it was too soon to make any conclusive determination: “The contract language lacks the precision necessary to make the determination [Hopkins] requests at this stage in the litigation, when these elements of the Deed and Contract are read in their entirety and inferences made in the light most favorable to the non-moving party.” And the court reached the same conclusion with respect to the leasing issue, concluding that “a reasonable person could find that the language restricting disposition may contain limitations on [Hopkins’s] ability to create leases on” the Farm. The parties then engaged in discovery, including depositions of the Family and Mr. Dearden and other Hopkins officials, production of the various County plans that had evolved over the years, and transcripts of zoning hearings. On September 24, 2012, Hopkins filed a renewed Motion for Summary Judgment that maintained its original position, and the Family filed a Motion for Summary Judgment arguing the opposite — ie., that there was no ambiguity in the Contract because, by its terms, it specifically prohibited Hopkins’s proposed development. The circuit court held a lengthy hearing on October 26, 2012, and granted summary judgment to Hopkins, in addition to finding that Hopkins was entitled to a declaratory judgment that it could lease the property and was not restricted in the scale or density of development.

The court grounded its ruling on a finding that the language of Paragraph 18 was unambiguous: I conclude that the transaction at issue is both a sale and a gift, but largely was a sale with substantial monetary consideration flowing from [Hopkins] to the grantors. As a consequence, I believe that the pertinent analysis that I must follow is set forth in cases such as [City of Bowie v. MIE, Props., Inc., 398 Md. 657 , 922 A.2d 509 (2007) ], and the much discussed [case of Lowden v. Bosley, 395 Md. 58 , 909 A.2d 261 (2006) ]. I have compared the ²³¹ language of the restrictive covenant in this case to the restrictive covenant in Lowden , and, interestingly, [to] the restrictive covenant in City of Bowie. While in City of Bowie there were multiple restrictive covenants, one of them was similar, albeit not identical, to some of the language in this case.

In City of Borne, the first restriction was buildings for science, technology, research and related issues. That is fairly close to the language in both the amended contract and the deed before me. And in the City of Bowie case, the Court of Appeals held that such language was unambiguous. We’ve discussed Lowden already, where the restrictive language was “a lot shall be used for single-family residential purposes only.” Although the Circuit Court’s judgment in that case was affirmed, the Court of Appeals was of the view that, “Unlike the Circuit Court we find no ambiguity with respect to this issue and, consequently, we have no occasion to consider the extrinsic evidence relating to intent.” So my [principal] holding is that the language of the restrictive covenant contained both in the amended contract and in the deed is unambiguous.

It is clear and plain. It was a bargain for exchange. The circuit court made several other determinations relevant to the summary judgment motion: • The court interpreted Paragraph 14 as a “seller cooperation clause, not a limitation either on the use of the property or on the number of zoning applications that the owner in fee simple absolute could make”; • The court concluded that the naming requirement required nothing more and “does not form any part of the restrictive covenant language contained in either the amended contract or the deed”; and • The court concluded that the fee simple interest “had no impact on the nature of the restriction of the property.” ²³² The court held alternatively, in the event a reviewing court found the language of Paragraph 18 to be ambiguous, that Hopkins still was entitled to summary judgment. It applied the “principle of reasonable construction” of Lowden and City of Bowie to conclude that any ambiguity did not tip the balance in the Family’s favor: [A]ny ambiguity has not been resolved by [any extrinsic] evidence put forth by the plaintiffs----This, in my judgment, then triggers the general rule in favor of the unrestricted use of the property.

In that event, as discussed in the City of Bowie case, the covenant should be read to promote the free alienability and use of land. I stress that’s an independent holding, only in the event that it is concluded that the language is ambiguous. The circuit court also issued a written order declaring Hopkins free from the restrictions the Family sought to impose: [T]he Amended Contract and Deed do not impose restrictions on [Hopkins] related to the scale or density of its development of Parcel B, as that parcel is defined in the Amended Contract and Deed, and ... the only development and use restrictions applicable to [Hopkins] are those set forth in [Paragraph 13] and no other; and it is further DECLARED that the Amended Contract and Deed provide that: “For a period of no less than the shorter of (a) fifty (50) years from the date the Property is transferred to [Hopkins], or (b) 21 years from the death of the last to survive of