Blakehurst Life Care Community v. Baltimore County

• Decision Date: 10 September 2002
• Docket Number: No. 1591,1591
• Citation: 146 Md. App. 509,807 A.2d 179
• Parties: BLAKEHURST LIFE CARE COMMUNITY/THE CHESTNUT REAL ESTATE PARTNERSHIP, v. BALTIMORE COUNTY, Maryland, et al.
• Court: Court of Special Appeals of Maryland

807 A.2d 179

146 Md. App. 509

BLAKEHURST LIFE CARE COMMUNITY/THE CHESTNUT REAL ESTATE PARTNERSHIP, v. BALTIMORE COUNTY, Maryland, et al.

No. 1591, September Term, 2001.

Court of Special Appeals of Maryland.

September 10, 2002.

Benjamin Rosenberg (Rosenberg, Proutt, Funk & Greenberg, LLP, Baltimore, John H. Zink, III, Patricia A. Malone and Venable, Baetjer and Howard, LLP, Towson, on brief) for appellant.

J. Carroll Holzer (Holzer & Lee, on the brief) Towson, for appellee.

Argued before SALMON, SHARER, CHARLES E., MOYLAN JR., (Retired, Specially Assigned), JJ.

SHARER, Judge.

Blakehurst Life Care Community/The Chestnut Real Estate Partnership ("Chestnut/Blakehurst"), appeals from a decision of the Circuit Court for Baltimore County, affirming a decision of the County Board of Appeals (the Board),¹ denying Chestnut/Blakehurst's request for approval of the addition of 63 parking spaces to the Blakehurst premises. Appellants raise the following questions for our review:

I. Did the Board of Appeals exceed its jurisdiction when it denied approval of a refinement to a development plan based on its interpretation of a restrictive covenant agreement?

II. If not, was the Board of Appeals interpretation of the agreement legally correct?

Because we find that the Board did not exceed its jurisdiction in interpreting the agreement, and because we do not find error in the Board's decision, we shall affirm.

The History of Blakehurst

Blakehurst Life Care Community is a 278 unit continuing care/assisted living community located on Joppa Road in Towson, Baltimore County. It was developed by the Chestnut Partnership in 1988.

Because there was, at that time, opposition from the neighboring community (represented primarily by the Ruxton-Riderwood-Lake Roland Area Improvement Association) (the Association) in which the development was planned, there evolved a restrictive covenant agreement (the Agreement) which allowed the initial development to go forward. The Agreement was adopted by the appropriate Baltimore County agencies as the operative controlling document for the development of Blakehurst, and for future expansions and improvements.

FACTUAL AND PROCEDURAL BACKGROUND

The 1988 Restrictive Covenant Agreement

In 1988, the Chestnut Partnership submitted to the Baltimore County Review Group (CRG) a plan to build a continuing care facility on a 40.92 acre tract at 1055 Joppa Road in Towson. On September 8, 1988, following a public meeting, the CRG approved the plan. Adjacent property owners and the Association filed an appeal of the CRG approval to the Baltimore County Board of Appeals.

The Chestnut Partnership then filed petitions for a special exception and variance with the Baltimore County Zoning Commissioner. Following a hearing on September 25, 1988, the Zoning Commissioner denied the requests ruling that "... the size and scope of the project is inconsistent with the peaceful use and enjoyment of the surrounding neighborhood." The Chestnut Partnership filed a timely appeal of that decision to the Board.

To avoid further administrative litigation, and probable appeals, relating to the proposed development, the Chestnut Partnership, the Association, and several individual adjacent property owners entered into the Restrictive Covenant Agreement. The Agreement, executed on October 13, 1988, stipulated that specifically identified maps, plans, plats, and other pertinent documents, would define the size and scope of the Blakehurst development (1) for 25 years on the portion of the land containing the residential buildings and (2) for 50 years on the remaining portion of the land.

The Chestnut Partnership, the Association and the individual parties to the Agreement then requested that the Board consolidate the pending appeals (the CRG approval appeal and the special exception denial appeal) and to approve the development in the terms defined by the Agreement. The Board acquiesced and, on October 25, 1988, entered a consent order adopting and incorporating the Agreement. The consent order provided, in relevant part, that

The Continuing Care Facility hereby approved shall conform in all respects to the terms and conditions of the October 13, 1988 Restrictive Covenant Agreement and Exhibits between the parties, which is hereby incorporated as a part of this Order as if it were fully set forth herein.

Blakehurst was then developed and constructed by the Chestnut Partnership.

Pertinent to our discussion throughout are Paragraphs 1(f) and 12 of the Agreement. Paragraph 1(f) provides that

[r]easonable adjustments in the location of buildings, parking and other features of the Community shall be permitted upon the direction and approval of the Director of Planning for Baltimore County, it being the intention of all parties to maximize the retention of existing trees and vegetation on the Land and to permit a degree of flexibility in addressing the nature and constraints of the site, appropriate governmental building standards and requirements and the needs of the elderly residents.

Paragraph 12 sets forth that "[t]his Agreement may be amended by a written instrument in recordable form, executed by Chestnut, and by the Advisory Board [of the Association] after a favorable vote of 3/4 of the Board or their successors."

1989 through 1998

Between 1989 and 1998, the Chestnut Partnership proposed five changes in the Blakehurst development, including two proposals to create additional parking spaces under and around the buildings. Each time, Blakehurst negotiated with appellees, and agreement was reached, resulting in five addenda to the Agreement as contemplated by Paragraph 12.

The Addenda

The first addendum to the Agreement, dated December 28, 1989, permitted Chestnut to increase the number of residential units beyond that called for in the original approval.

The second addendum, (inexplicably dated November 9, 1989), allowed the repositioning of security gates.

The third addendum, and the most complex, was approved on September 7, 1990. It dealt with modifications of the original plan relating to the size and location of buildings and the location of surface parking, as well as with several procedural subjects.

The fourth addendum, dated November 5, 1996, permitted the development of a number of underground parking spaces.

The fifth, and last, addendum, dated June 29, 1998, allowed for the creation of additional surface parking, for the enlargement of an existing building, and for the construction of additional buildings.

1999 Request for Additional Parking Spaces

In the fall of 1999, Chestnut/Blakehurst developed a proposal to add 30 surface parking spaces in the vicinity of the Health Care Building and 33 surface parking spaces in the vicinity of a residential structure, identified as Building F. As in the past, Chestnut/Blakehurst approached appellees in the hope of formulating the sixth addendum to the Agreement. Appellees, however, objected and vigorously opposed the proposal.

Chestnut/Blakehurst then applied for the "direction and approval" of the Director of the Office of Planning (OPZ) pursuant to Paragraph 1(f) of the Agreement. After discussions with Chestnut/Blakehurst and appellees, the Director approved the proposal on October 29, 1999. With the Director's "direction and approval" in hand, Chestnut/Blakehurst filed a request with the DRC for permission to develop the 63 additional parking spaces as a "refinement" to the last approved CRG plan.

On November 1, 1999, the DRC met to review the Chestnut/Blakehurst request and, thereafter, recommended approval of the additional parking spaces as a "refinement" to the CRG plan. On November 8, 1999, Arnold Jablon, Director of the Department of Permits and Development Management (DPDM), accepted the DRC's recommendation and approved the request as such a "refinement." Chestnut/Blakehurst subsequently submitted a 4th Amended CRG Plan for approval, which the CRG granted on November 19, 1999.

Appellees filed two timely appeals with the Board. In the first, they took exception to the DPDM's determination that the proposal was a "refinement"; in the other they challenged the CRG's approval of the additional parking. The Board consolidated the appeals and considered both issues at a hearing on May 30, 2000.

Chestnut/Blakehurst contends that the only issue before the Board was whether the proposed additional parking fell within the definition of a "refinement," thus obviating the need for an agreed addendum to the Agreement. Appellees posit that the only issue before the Board was whether the Director and the DRC had the authority or jurisdiction to permit any amendment, whether "material" or simply a "refinement," to the approved CRG plan without an addendum to the Agreement or, in the alternative, without approval of the Board to amend the Board's previous consent order.

Following the consolidated hearing, the Board issued an opinion sustaining the DRC's determination that the proposed additional parking was, in fact, a "refinement" to the CRG plan. The Board, however, reversed the decisions of the DRC and CRG, concluding that, although the additional parking was a "refinement," the Agreement required Chestnut/Blakehurst to obtain appellees' consent to the proposal in order to amend the CRG plan.²

Chestnut/Blakehurst appealed the Board's decision to the Circuit Court for Baltimore County. After hearing, the circuit court affirmed the decision of the Board. Chestnut/Blakehurst has filed a timely appeal to this Court.³

STANDARD OF REVIEW

We review the issues in this appeal as did the circuit court, that is, on the record before it, was the Board clearly erroneous in its findings of fact, or did it commit an error of law? In doing so, we give deference to the expertise of the agency whose ruling is being reviewed. As in Angelini v. Harford County, 144 Md.App. 369, 798 A.2d 26 (2002), we are presented primarily with the agency's interpretation of...