Metius v. Julio

• Decision Date: 23 July 1975
• Docket Number: No. 720,720
• Parties: Richard METIUS et al. v. Edward J. JULIO and Carl T. Julio, copartners t/a Cromwell Realty Company.
• Court: Court of Special Appeals of Maryland

Page 491

27 Md.App. 491

342 A.2d 348

Richard METIUS et al. v. Edward J. JULIO and Carl T. Julio, copartners t/a Cromwell Realty Company.

No. 720.

Court of Special Appeals of Maryland.

July 23, 1975.

Certiorari Denied Oct. 6, 1975.

William F. Mosner, Towson, for appellants.

Benjamin R. Civiletti and Paul F. Strain, Baltimore, for appellees.

Argued before ORTH, C. J., and DAVIDSON and LOWE, JJ.

DAVIDSON, Judge.

This appeal is from an order of the Circuit Court for Baltimore County dismissing a bill of complaint for injunctive relief sought to prohibit the construction of buildings alleged to be violative of an agreement, restricting the type of development to occur on a 23.2797 acre parcel of land lying south of the Baltimore Beltway between Providence Road and Cromwell Bridge Road. The agreement created equitable restrictions ¹ on the subject property, which provided, among other things, that it be developed with buildings not more than three stories in height.

There was evidence to show that before 22 July 1971 the subject property was principally owned by Cromwell Valley, Inc. On 6 March 1965 the County Board of Appeals of Baltimore County (Board) granted an application by the then owner for a reclassification of the subject property to the R.A. zone (Residential, Apartments, gross density 16 dwelling units per acre, net density 18 dwelling units per acre). The Board simultaneously denied a request for a special exception for elevator apartments, which would have permitted the construction of two 20-story apartment buildings containing a total of 637 apartment units. The then owner appealed from the denial of the special exception while neighboring property owners, who had opposed the grant of both the reclassification and the special exception, appealed from the grant of the reclassification.

On 18 March 1966 the circuit court affirmed the Board. Both the then owner of the subject property and the neighboring property owners appealed. While the appeals were pending in the Court of Appeals, the parties reached an agreement, embodied in a written document dated 12 July 1966, in which the neighboring property owners agreed to dismiss their appeal if the then owner of the subject property would impose certain restrictions upon the use and development of the land. This agreement, which provides that the equitable restrictions therein created shall run with the land and be binding upon present and all future owners thereof, reads, in pertinent part, as follows:

'THE PARTIES OF THE FIRST PART (owners of the subject property) ON BEHALF OF THEMSELVES, AND THEIR HEIRS, SUCCESSORS, AND ASSIGNS AGREE AS FOLLOWS:

'2. Development within R-A Classification: That no petition for rezoning or special exception of any kind shall hereafter be filed on the aforesaid 23.2797 acre tract of land, and that said tract of land shall be developed with Garden Apartment buildings with gross density of not more than sixteen (16) units per acre, net density not more than eighteen (18) units per acre, nor more than three (3) stories in height, and in accordance with the applicable provisions and restrictions pertaining to the R-A Zone under Baltimore County zoning regulations in effect as of this Agreement; and further no use shall be made of said parcel for high rise apartments, commercial or office uses within the period of said restrictions hereinafter specified.' (Emphasis in original.)

On 13 July 1966 the agreement was recorded among the land records of Baltimore County.

On 22 July 1971, 23.16 acres of the subject property then classified in the D.R.-16 zone ² were sold to the appellees, Edward J. Julio and Carl T. Julio, CoPartners, T/A Cromwell Realty Company (owners). A deed was executed on 2 November 1971 and recorded among the land records on 4 November 1971.

On 5 May 1972 the appropriate Baltimore County authorities finally approved a plan of development which permitted the construction of 390 garden apartments on the subject property, the maximum allowed in the D.R.-16 zone. The first phase of development called for the erection of 240 units to be located in 19 buildings arranged in four separate rows. Two types of structures were approved: one consisting of 12 units in which there were to be four units on each of three levels, a terrace, first and second floor; and one consisting of 14 units in which there were to be two units on a terrace level partially below grade, and four units on a first, second and third floor respectively.

The topography of the subject property is such that it slopes from north to south with its highest elevation at the north and its lowest at the south. Construction began on the northernmost part of the property, a building permit having been obtained on 29 August 1972. Eight buildings, arranged in two rows, were erected. Each structure contains 12 units, four on each of three floors.

In the summer of 1973 the construction of a third row of six buildings began. Each of these six buildings, located on sloping ground, contains 14 apartments, four units on each of three floors to which access is achieved by an entrance on the north (high) side of the building, and two units on a terrace level to which access is obtained by an entrance on the south (low) side of the building. As a result of the slope of the land, the two units on the terrace level are predominantly below grade. Indeed, the ceilings of these two units are only four-and-one-half feet above grade. There was testimony to show that given the slope of the land the terrace level on the low side is necessary to support the other levels in which the remaining 12 units are located.

On 30 July 1973, after the footings for these six buildings had been poured, the appellants, neighboring property owners, some of whom were signatories to the 12 July 1966 agreement (protestants), filed a bill of complaint in the circuit court. The bill alleged that construction of these buildings would violate the provision of the 12 July 1966 agreement limiting construction on the subject property to buildings not 'more than three stories in height.' The bill sought to prohibit the owners 'from erecting on the subject tract of land any building of more than three stories in height.' Notwithstanding the filing of this bill, the owners proceeded with construction. The buildings were completed before the case was decided by the circuit court.

After hearings on 27 December 1973, 2 January 1974 and 4 January 1974, Judge Walter M. Jenifer wrote a carefully considered memorandum opinion and order in which he found, insofar as here relevant, that construction of the six structures containing 14 units each, including two units partially below grade level, did not violate the 'three stories in height' restriction. He further found that, even assuming there were a violation, such violation would be immaterial because it would not be in derogation of the real purpose and intention of the parties at the time the agreement was executed. Accordingly, on 28 June 1974 he entered an order dismissing the complaint, thereby denying the request for an injunction. It is from that order that this appeal is taken.

On appeal the protestants contend that the construction of these buildings constitutes a material violation of the 'three stories in height' restriction. They assert that the meaning of the expression 'three stories in height' is to be found in various dictionary definitions of the words, 'story' and 'height,' and more particularly in the Baltimore County Zoning Regulations, in effect at the time of the 12 July 1966 agreement and, in fact, referred to in that agreement as governing the type of development to occur on the subject property. Those regulations, like the ones currently in effect, define a 'story' as follows:

'Story: That portion of a building included between the surface of any floor and the surface of the floor next above it, or if there be no floor above it, the space between such floor and the ceiling above it. A basement shall be counted as a story if its ceiling is over six feet above the average level of the unfinished ground surface adjoining the exterior walls of such story, or it is used for business of dwelling purposes.' Baltimore County Zoning Regulations (1955) 101; Baltimore County Zoning Regulations (1975 ed.) § 101.

The protestants maintain that the words 'three stories in height,' when given their ordinary meaning, are clear and unambiguous. They contend that because the terrace levels are to be used for dwelling purposes the buildings are more than three stories in height.

In addition, the protestants argue that under such circumstances the trial court erred when it 'speculated as to the intent and motivating reasons behind the agreement' and when it determined the purpose and intent of the parties at the time the agreement was made. They claim that it failed to consider that the protestants did not 'want the developer to pack all his people into one small area of the 23 acre tract by erecting high-rise buildings. They wanted them to be spread as evenly as possible so that at least the appearance of congestion would be minimized. Thus when they opted for a limit of three stories they hoped to achieve not only height control but also to obtain a spread of the apartment units in some uniform fashion over the available area.'

The owners contend that the construction of these buildings does not violate the equitable height restriction. The point out that the meaning of that restriction, which was not simply to limit buildings to three stories but rather to limit them to three stories in height, is ambiguous. They argue that both the Baltimore County Building Code (1956) in effect at the time the agreement was executed, and a subsequent 1971 addition to that Code, each containing different definitions of a 'first story,' preclude consideration of the terrace levels of these buildings as 'first stories' and, therefore, as...