Friends of Lubavitch, Inc. v. Zoll

• Decision Date: 23 October 2018
• Docket Number: No. 372,372
• Citation: Friends of Lubavitch, Inc. v. Zoll, No. 372 (Md. App. Oct 23, 2018)
• Parties: FRIENDS OF LUBAVITCH, INC. v. ROBIN ZOLL, et al.
• Court: Court of Special Appeals of Maryland

FRIENDS OF LUBAVITCH, INC. v. ROBIN ZOLL, et al.

No. 372

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

October 23, 2018

Circuit Court for Baltimore County

Case No. 03-C-16-008420

UNREPORTED

Graeff, Leahy, Wilner, Alan M. (Senior Judge, Specially Assigned), JJ.

Opinion by Leahy, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority.Md. Rule 1-104.

This appeal concerns a building erected by Friends of Lubavitch, Inc.("FOL,""Appellant," or "Cross-Appellee") for Rabbi Rivkin and the Chabad-Lubavitch of Towson located at 14 Aigburth Road.FOL is a charitable organization headquartered in Potomac, Maryland, incorporated in 1975"to aid and support [] activities of the Lubavitch removement in Maryland."¹

Robin Zoll resides with her family at 16 Aigburth Road, adjacent to 14 Aigburth.Mrs. Zoll is trustee of two revocable trusts that jointly own 16 Aigburth for the benefit of Mrs. Zoll and her children.Aigburth Manor Association of Towson, Inc.(the "Association") is a community association that represents the interests of residents in the Aigburth Manor neighborhood of Towson.Mrs. Zoll and the Association opposed FOL's attempts to expand the single-family home on 14 Aigburth to serve as a religious parsonage and/or community building.

A few months after FOL secured a permit to build a 6,600-square-foot building in front of the then-existing home on 14 Aigburth, Mrs. Zoll and the Association informed FOL that the new building would violate a restrictive covenant running with the land that prohibits dwellings within a certain distance of Aigburth Road.FOL, however, continued to build even though it had only excavated the land by that point.So, 16 days after demanding that FOL stop work, Mrs. Zoll, individually as resident of 16 Aigburth and as trustee and beneficiary of the property's owners, along with the Association ("Appellees"or "Cross-Appellants" or "plaintiffs" below) filed suit in the Circuit Court for Baltimore County, seeking a declaratory judgment, injunctive relief, and attorneys' fees.The case eventually proceeded to trial seven months after the plaintiffs filed suit, by which point FOL had already finished construction.The circuit court determined that the building violated the restrictive covenant and ordered that FOL remove it.FOL appealed, and all requests to staythe circuit court's order to raze the building were denied.

FOL challenges the circuit court's decision on three grounds: (1)the court erred by permitting the plaintiffs to amend their initial complaint to correct a misnomer; (2) laches barred their action; and (3)the court erred by ordering removal of the building rather than awarding compensatory damages.In a cross-appeal, Appellees ask us to reverse the circuit court's denial of their request for attorneys' fees.

We shall affirm each of the circuit court's judgments.First, we discern no abuse of discretion in the court's decision to allow the amended complaint because no trial date was scheduled at the time and the corrected misnomer did not prejudice FOL.Next, we conclude that laches does not apply to bar the underlying action because Appellees did not delay unreasonably in filing their suit.Third, it was within the circuit court's discretion to permanently enjoin FOL's willful violation of the restrictive covenants.Therefore, we cannot say the court abused its discretion.Finally, we discern no error in the circuit court striking Appellees' motion for attorneys' fees because no statutory provision authorized the award of attorneys' fees for the underlying action.

BACKGROUND

A.The Aigburth Road Properties

The two adjoining properties at the heart of this case—14 & 16 Aigburth Road—were once part of a larger, single parcel of land during the first half of the Twentieth Century.Ms. Mabel S. Collison came to own that single parcel by a deed recorded in 1936.In 1950, Ms. Collison subdivided the parcel and deeded her interest in the portion now known as 14 Aigburth to C. James Velie and Zenith H. Velie and recorded the deed (the "1950 Deed") among the land records of Baltimore County.²The 1950 Deed specifies that the property is subject to certain restrictive covenants and restrictions that apply to any dwelling built on the property (at the time there was no structure on 14 Aigburth).The "Setback Covenant" provides that any dwelling erected on the property "shall have a setback equal to one-half of the total set[]backs of the two houses erected on the lots adjoining to the East and West thereof, measured to the centre of said houses, exclusive of porches."These restrictive covenants run with land.

The house on 16 Aigburth, built in 1908, is between 143 and 150 feet from the road and the neighboring house on 12 Aigburth Road is set back between 82 and 86 feet.Averaging the setbacks of 12 & 16 Aigburth, the Setback Covenant requires any structures on 14 Aigburth to be set between 112.5-115 feet from the road.

In 1982, Mrs. Zoll's parents, Mr. James F. Taylor and Madge S. Taylor, purchased 16 Aigburth from the successors in interest of Ms. Collison.Six years later, the Taylors deeded 16 Aigburth to two revocable trusts bearing their names—the James F. Taylor Revocable Trust and the Madge S. Taylor Revocable Trust (the "Revocable Trusts")—for the benefit of their daughter, Mrs. Zoll, and her children.The Zolls have lived there ever since.

FOL purchased 14 Aigburth on September 29, 2008.Although the 2008 deed did not mention the restrictive covenants, the deed incorporated by reference the prior deeds, including the 1950 Deed.The title attorney who conducted closing for FOL in 2008 also prepared a title report that identified the restrictive covenants in the 1950 Deed.Additionally, the title insurance that FOL purchased in 2008 specifically excepted coverage for any issues arising from those restrictive covenants.

The parties do not dispute that the existing house that was built on 14 Aigburth in 1958 is about 115 feet from the road.

B. FOL's Proposed Addition

Rabbi Manachem Mendel Rivkin lives at 14 Aigburth with his wife and five children.His residency at 14 Aigburth is a form of compensation for his work for FOL.He runs the day-to-day operations of Chabad-Lubavitch of Towson from an office at Towson University that serves the University as well as nearby Goucher College.The existing home at 14 Aigburth (before the proposed addition) was approximately 2,200 square-feet.

FOL proposed building an addition to the home at 14 Aigburth because they"had a shortage of space of [Rabbi Rivkin's] family[,]""a shortage of space for [their] guests[,]" and "didn't have enough space to host people for Friday night dinner."In January 2012, FOL informed the Association they were considering building an addition to "accommodate worship services for TU students."In February they learned that at least one neighbor felt "very aggressively negative about it."Rabbi Rivkin testified at trial that FOL "originally [] proposed to build it as a synagogue[,]" but "[t]he neighbor[s] actually asked us not to do that.And they asked us to keep it as a residence."

At some point in 2014, FOL held a ceremonial groundbreaking to announce plans "to build an additional space to . . . help enhance . . . religious Jewish life in Towson."The Zolls and the Association, however, learned about FOL's plan to go ahead with an addition from articles in the Towson Times and the Jewish Times in the summer of 2014.Upon learning that FOL planned to go forward with an addition, the Zolls alerted Baltimore County that FOL's use of the property as a religious parsonage violated the applicable zoning laws.Mr. Zoll and other neighbors requested that FOL produce more detailed plans for the addition.

In the fall of 2014, FOL held a meeting for the community on the front lawn at 14 Aigburth to discuss the addition.Based on the neighbors' concerns that the proposed building (as shown on plans) looked too commercial and was too tall, FOL asked their architect to "make some aspects . . . feel more residential and more in tune with the neighborhood."Consequently, FOL lowered the main floor of the proposed building 5 ½-feet further into the ground "so that it wouldn't be as tall."According to Rabbi Rivkin,Mr.Zoll also requested that FOL build further forward, as opposed to behind the existing house, so it would be further away from the Zolls' house.

C.Zoning Hearings

As FOL continued its campaign to build a larger structure on 14 Aigburth, Baltimore County issued FOL a code enforcement correction notice on January 29, 2015.The County ordered, among other things, that FOL "[c]ease the illegal House of Worship/Religious Institution without the benefit of meeting the RTA requirements,³ the parking requirements and the Non Residential Principle Setback requirements[]" contained in the Baltimore County Zoning Regulations("BCZR").The correction notice also ordered that FOL "[c]ease the illegal operation of a Community Building without the benefit of a Special Exception Hearing."The property is 17,122 square feet and zoned D.R.5.5, Density Residential, which permits 5.5 dwelling units per acre.BCZR § 100.1.

FOL responded by petitioning for a special hearing pursuant to BCZR § 500.7"to confirm continued use of the subject property as a residential parsonage with an accessory use for religious worship and religious education."The Baltimore County Department of Planning recommended that the County's Office of Administrative Hearings("OAH") deny FOL's petition because FOL "was operating a 'community building,' which wouldrequire a special exception."An Administrative Law Judge ("ALJ") ruled that 14 Aigburth "fails to qualify as a parsonage[,]" and denied FOL's petition on June 26, 2015, explaining:

While the property is owned by a

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