Harbor View Imp. Ass'n, Inc. v. Downey

• Decision Date: 28 November 1973
• Docket Number: No. 88,88
• Parties: HARBOR VIEW IMPROVEMENT ASSOCIATION, INC. v. Joseph S. DOWNEY, Jr., et al.
• Court: Maryland Court of Appeals

Page 365

270 Md. 365

311 A.2d 422

HARBOR VIEW IMPROVEMENT ASSOCIATION, INC. v. Joseph S. DOWNEY, Jr., et al.

No. 88.

Court of Appeals of Maryland.

Nov. 28, 1973.

L. Robert Evans, Towson (Walter Litvinuck, Chester, on the brief), for appellant.

Walter W. Claggett, Easton, and Edward Turner, Centreville, on brief, for appellees.

Argued before MURPHY, C. J., and BARNES, McWILLIAMS, SINGLEY, SMITH, DIGGES and LEVINE, JJ.

SMITH Judge.

This case no doubt is a direct by-product of the opening in 1952 of the bridge across Chesapeake Bay between Kent Island in Queen Anne's County and Sandy Point in Anne Arundel County. ¹ It involves interpretation and application of restrictive covenants.

The plat of the area under consideration filed in this proceeding reveals it to be immediately south of a dual lane highway 'leading to Baltimore' and immediately east of Cox's Creek. From this, the trial judge (Wise, J.) correctly concluded that it lies across U. S. Route 50 from a large shopping center.

Appellees, Joseph S. Downey, Jr., et al. (Downey), own lots in 'Harbor View,' a Kent Island development. They sought to erect a duplex home on two of those lots. When permission was refused by appellant, Harbor View Improvement Association, Inc. (Harbor View), a declaratory judgment action was instituted by Downey. The trial judge summarized the facts of this case as follows:

'The evidence is chiefly documentary and the significant testimony is uncontroverted. The following pertinent facts are determined to have been established thereby. The Complainants as Co-Partners are owners in fee of Lots 10 to 24 of Block P and Lots 1 to 32 of Block Q of 'Harbor View', by conveyance from J. & F., Inc., dated December 23, 1971, and duly recorded . . ., and the Respondent is the successor in interest and authority of the original developer, by conveyance dated September 10, 1964, and duly recorded . . .. Extensive restrictive covenants were placed upon the entire development by conveyance dated August 12, 1952, and duly recorded . . .. A plat of the development, including the subject lots, was simultaneously recorded . . .. The developer subsequently, in accordance with its authority under the covenants and restrictions, executed a certain 'Waiver' of a part of the previous restrictions as to the aforesaid lots on December 12, 1962, and this was duly recorded . . .. The Complainants propose to erect upon Lots 31 and 32 of Block Q for rental purposes a duplex home, the center line of which would coincide with the dividing line of their lots, which have a total of 27,000 sq. ft. It is estimated to cost $30,000, yield a gross rental of $400 monthly, and have two complete residential units. The proposed design, as illustrated by Plaintiffs' Exhibit #7, would conform to the prevailing architecture of the development, and the perimeter of the building would be well within the setback lines (except of course as to the division line between the lots). Requisite governmental clearance on zoning, sanitation, etc., had been obtained. Respondent's Board of Directors, having been submitted an application containing these recitals and being vested with discretionary authority in such regard by the established restrictive covenants, refused to approve the application, precipitating this litigation.'

Restriction No. 1 as later amended and as here applicable, except to the extent modified by the waiver referred to by Judge Wise, reads as follows:

'1. All lots in 'Harborview' shall be for residential use only and not for purposes of any trade or business whatsoever. Structures erected on any one lot shall consist of the main dwelling or residence for the occupancy of one family only, together with a private garage and other structures appurtenant to the main residence, or to be used in connection therewith, and on no lot shall there be more than one main dwelling and on no lot shall more than one family occupy the main dwelling or any structure appurtenant thereto. The main dwelling or residence on any lot shall have a set back from the front line of said lot of at least thirty-five (35) feet, and shall have a set back from the dividing lines of said lot of at least ten (10) feet, and shall have a set back from the rear boundary line of the lot of at least ten (10) feet.'

Chester Beach, Inc. (Chester Beach) referred to in paragraph 11 of the restrictions as 'the developer,' reserved 'the right in its absolute discretion at any time to annul, waive, change or modify any of the restrictions, conditions, covenants, agreements or provisions contained (t)herein, as to any part of said tract then owned by the developer, and with the consent of the owner as to any other land included in said tract . . ..' Pursuant to that right, on December 12, 1962, an agreement was entered into between Chester Beach and the predecessor in title of Downey. It referred to paragraph 11 of the restrictions, recited the deed from Chester Beach to Downey's predecessor in 1960 and the agreement of those parties at that time 'to, simultaneously with the execution of said Deed, waive and change, etc., paragraph 1 of the restrictions contained in the (1952) Deed and Agreement,' and said that Chester Beach 'in exercise of the aforesaid power of modification, etc., and to confirm the Agreement between (it and the predecessor, did) . . . 'change, modify and annul paragraph 1 from Residential Use, etc. unto Commercial Use, in and to the lots (t)hereinafter described." Then, after those 'whereas' clauses, it was specified that Chester Beach did 'annul, waive and modify paragraph 1 of the aforesaid Deed and Agreement' so that Downey's predecessor would have 'full power and authority to use (lots 1 to 32, inclusive, of Block Q and lots 10 to 24, inclusive, of Block P) for commercial purposes.'

Counsel for Downey in February, 1972, addressed a letter to Harbor View enclosing 'a proposal for the construction of a duplex dwelling on Lots 31 and 32, Block Q' on behalf of the owners and further stating:

'Included in this proposal are the following documents:

A. One complete set of blue prints for the dwelling.

B. Floor plan layout and picture of front elevation.

C. Copy of portion of subdivision plat showing location of proposed building site.

'The proposed building site is located at the Northeast corner of the intersection of Anchorage Drive and Ellicott Drive and it is approximately 425 feet from the Southerly right-of-way line of U. S. Route 50-301.

'The duplex dwelling will consist of two single family units with each unit having approximately 875 square feet of floor space.

'Each unit will have 2 bedrooms, living room, kitchen and bath, plus storage room and separate entrances. Additionally, each unit will be serviced by its own septic system, electric service and heating service.

'The duplex dwelling will be situated on Lot 31 and 32 so that the center line of the dwelling will be placed on the dividing center line of the two lots. This in essence will mean that each lot will have one single family dwelling unit located on it which will be in accord with the requirement of the Harbor View Subdivision Restriction as they apply to the single family zoned lots.

'Additionally, the dwelling will be situated on the lots so as to conform to or exceed the requirement relating to setbacks of lots in Harbor View.

'The intent of the owners is to contruct a dwelling that will be harmonious in design and appearance to the many other attractive homes in Harbor View and one which will add to the general value of the subdivision.

'The area in which these lots are located is Zoned as an 'R-4' Apartment Zoning District and it would seem that the erection of a dwelling such as this proposed duplex would be far more attractive and in keeping with the general development of Harbor View than would a multi-family apartment structure.

'Your early approval of this proposal will be sincerely appreciated and if you require further information please do not hesitate to contact either myself or the owners.'

Something over two months later, Downey was advised that at a meeting of the board of directors of Harbor View it had been 'voted to reject (his) duplex apartment bldg. plans on the basis of the Plan Review Committee's report,' a copy of that report being enclosed. The reasons given were:

'1. Apartments tend to depreciate the value of other homes.

'2. Having been told by Jos. Downey & Thomas Sullivan there are going to be several, there would be lookalikes.

'3. Setbacks from property lines.

'4. A duplex not compatible with other homes (only temporary residence which does not promote the concern for the development such as a permanent home owner would have).

'5. Sanitation problem (20,000 sq. ft. is necessary requirement-with permission given in certain cases-the amount of duplex's being proposed would create a problem that one home would not.

'6. Speculative bldg.'

This action for a declaratory decree then followed. Harbor View was 'finally and permanently enjoined from enforcing or attempting to enforce the aforesaid Paragraph 1 in any manner as to the aforesaid lots' and directed to 'forthwith issue its approval of the application (of Downey) or any similar application legally in conformity with the remaining covenants and restrictions.'

In deciding this case, we must bear in mind the prior holdings of this Court relative to restrictive covenants. In Bartell v. Senger, 160 Md. 685, 693, 155 A. 174 (1931), Judge Offutt said for the Court that 'where the language employed to express a restrictive covenant so far involves a doubt as to require construction, the rule is that such covenants are to 'be strictly construed against the person seeking to enforce them,' and that 'all doubts must be resolved in favor of natural rights and a free use of the property.' 18 C. J. 387.' In Yorkway Apts. v. Dundalk Co., 180 Md. 647, 26 A.2d 398 (1942), Judge Marbury said for the Court, just before quoting the...