Echo Calvert Associates, LLC v. Mar-Ber Development Corp., 010919 MDSCA, 1403-2017

Docket Nº:1403-2017
Opinion Judge:Kehoe, J.
Judge Panel:Meredith, Kehoe, Friedman, JJ.
Case Date:January 09, 2019
Court:Court of Special Appeals of Maryland




No. 1403-2017

Court of Special Appeals of Maryland

January 9, 2019

Circuit Court for Calvert County Case No. 04-C-16-000978

Meredith, Kehoe, Friedman, JJ.


Kehoe, J.

This appeal is from a judgment of the Circuit Court for Calvert County, the Honorable E. Gregory Wells, presiding, granting injunctive and declaratory relief in favor of Mar-Ber Development Corporation against appellant Echo Calvert Associates, LLC. At issue is whether Echo interfered with Mar-Ber's right to use an easement across a portion of Echo's property. Echo raises five issues, which we have consolidated and reworded: 1. Whether the documents establishing the easement prohibit Echo from placing improvements within the easement area?

2. Are the relevant recorded instruments creating the easement ambiguous?

3. Whether the holding in Millson v. Laughlin, 217 Md. 576 (1958), and the terms of Restatement 3d of Property, Servitudes, § 4.8 (3rd Ed. 2000) permit Echo to relocate the easement without Mar-Ber's consent?

4. Whether the circuit court abused its discretion by ordering the removal of the improvements before Mar-Ber developed its property?

We will affirm the judgment. We conclude that the terms of the recorded instruments are not ambiguous, and that they do not permit Echo to obstruct the easement in the ways that it has in the present case. Neither Millson nor § 4.8 of the Restatement change that conclusion. The easement gives Mar-Ber the right to use it to access its property regardless of whether it is in the process of development, and the trial court did not abuse its discretion in ordering Echo to remove the obstructions.


A. The properties and the easement

Echo and Mar-Ber own contiguous commercially-zoned properties on the outskirts of Prince Frederick, Maryland. The Echo Property is bounded by Maryland Route 4 to the east, West Dares Beach Road to the north, and partially by North Prince Frederick Boulevard to the west. The Calvert Village Shopping Center ("the Shopping Center") is located on the Echo Property, and is operated by Echo. To the west and south of the Echo Property lies the Mar-Ber Property. It is an undeveloped, heavily-wooded parcel, with no existing access to any of the roads just mentioned.

The properties were once commonly-owned, but were severed in the early 1970s. In 1973, Echo's predecessor-in-interest recorded a document in the land records that, among other things, established a twenty-five-foot wide, non-exclusive access and utilities easement for the benefit of what is now the Mar-Ber Property. The location of parts of the easement have changed from time to time. Currently, it begins at West Dares Beach Road, wends its way through the Echo Property, and follows the common boundary of both properties for some distance before its termination. We will refer to that portion of the easement along the common boundary as the "Access Strip." The 1973 Declaration reserved for Echo and its successors: the right to relocate and/or change the size of such access road at any time in the sole discretion of the Declarant or of any future Owner of [the Echo Property] or any part thereof; provided only that the Declarant or such future Owner of [the Shopping Center] shall continue to provide access from [the Mar-Ber Property] across [the Echo Property] to West Dares Beach Road [and] . . . .

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the right to close temporarily all or any portion of said access easement to such extent, in the opinion of Declarant or the then Owners of [the Echo Property], as may be legally necessary and sufficient to prevent a dedication thereof or any accrual of rights in any person other than as aforesaid or in the public generally.

The 1973 Declaration also stated: In the event of future expansion of [the] Shopping Center by the construction of improvements on parts of [the Echo Property] . . ., then it is contemplated that this Declaration and Grant will be amended as necessary in order to provide access to West Dares Beach Road from all parts of [the] Shopping Center.

On August 2, 1985, the 1973 Declaration was amended. This 1985 Amendment was executed for the purposes of "relocat[ing] and enlarg[ing] the uses and purposes of the access easement created by the 1973 Declaration. . . .". The 1985 Amendment reserved to Echo the right to make any use of the Replacement Easement that is not inconsistent with the rights herein conveyed to [Mar-Ber], and [that] does not interfere with the use of said easement for its intended purpose.

The 1985 Amendment also stated that: All easements granted pursuant to this Easement Agreement shall be utilized in such a manner as to cause the least practical amount of disruption to the businesses conducted on the properties affected by such easements.

Finally, the 1985 Amendment reiterated that: [Echo], and the trustees of any deeds of trust encumbering [Echo's] real property may relocate and/or change the size of said easement, provided that access from the real property described in the Declaration to West Dares Beach Road is continued.

Last came the 2002 Settlement Agreement. As well as being Echo's neighbor, Mar-Ber is also one of its commercial tenants, and leases a building located on the westerly part of the Echo Property. This relationship began with Echo's predecessor-in-interest. In the early 2000s, a litigation arose between Echo's predecessor and Mar-Ber over their commercial lease. While the case was pending, the parties resolved the matter and executed a settlement agreement in April 2002, which they amended in March 2003. While the 2002 Settlement Agreement primarily addressed issues relating to the terms of the commercial lease, it also addressed a proposed expansion of the Shopping Center. Of particular relevance is paragraph 15, which reads: The parties will enter into a reciprocal parking agreement regarding ingress and egress between the parcels that covers the entire shopping center and any future development on the 16 acres of land owned by Mar-Ber adjacent to the Shopping Center. In addition, the parties would agree to cooperate when the 16 acres is developed on a cross parking agreement mutually advantageous to both properties. In this respect, "mutually advantageous" means an agreement prompting the county to reduce the required parking ratios on both the shopping center and the 16 acres.

As we noted, the location of area subject to the easement has shifted from time to time. Counsel aptly characterize its current configuration as an "upside-down question mark." It must be noted that, in every form the easement took, it always maintained an Access Strip along the common boundary of the properties. We will refer to the 1973 Declaration, 1985 Amendment, and 2002 Settlement Agreement, collectively, as the Recorded Instruments. Three stages of the easement are depicted below.

This plat map, an exhibit to the 1973 Declaration, shows the original location of the easement (shaded portion).

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