Olde Severna v. Barry

• Decision Date: 29 October 2009
• Docket Number: No. 1458 September Term, 2008.,1458 September Term, 2008.
• Citation: 982 A.2d 905,188 Md. App. 582
• Parties: OLDE SEVERNA PARK IMPROVEMENT ASSOCIATION INC. v. John BARRY et ux.
• Court: Court of Special Appeals of Maryland

982 A.2d 905

188 Md. App. 582

OLDE SEVERNA PARK IMPROVEMENT ASSOCIATION INC. v. John BARRY et ux.

No. 1458 September Term, 2008.

Court of Special Appeals of Maryland.

October 29, 2009.

Steven P. Resnick, Annapolis, MD, for Appellant.

Anthony F. Christhilf, Annapolis, MD, for Appellee.

Panel: DAVIS, SALMON and JAMES R. EYLER, JJ.

DAVIS, Judge.

In 2003, John and Karen Barry, appellees/cross-appellants,¹ sought to construct a driveway to their .35 acre property (the Barry Parcel) in Severna Park, Maryland. Appellees proposed to construct the driveway over a swath of unimproved land (the Undeveloped Land) that abutted the western boundary of their property in order to reach an improved roadway on Park Drive (the Improved Roadway). Both the Undeveloped Land and the Improved Roadway are owned by Olde Severna Park Improvement Association, Inc. (OSPIA), appellant.

At a hearing on appellee's application for a variance on October 21, 2003, a representative of OSPIA opposed the application and, on August 22, 2007, OSPIA filed an Amended Complaint for Declaratory Judgment and Injunctive Relief in the Circuit Court for Anne Arundel County to preclude appellees from constructing their proposed driveway. OSPIA argued, inter alia, that the Undeveloped Land was not part of Park Drive and was actually an area of "Park" that it owned and which appellees had no right to use for the installation of a driveway. Appellees responded that Park Drive was comprised of both Undeveloped Land and the Improved Roadway and, thus, they had the right of use of the Undeveloped Land to install a driveway to link their property with the Improved Roadway.²

On August 1, 2008, the circuit court issued a declaratory judgment, adjudging, inter alia, that the Undeveloped Land abutting the Barry Parcel was part of the "Park" and not Park Drive. Notwithstanding, the court established an easement by estoppel in favor of appellees over the Undeveloped Land to the Improved Roadway.

OSPIA filed the instant appeal, presenting two questions³ for our review, which we have rephrased and consolidated as follows:

Did the circuit court err in concluding that appellees were entitled to an easement by estoppel?

Appellees filed a cross-appeal, presenting one question for our review, which we have rephrased as follows:

Did the circuit court err in determining that the Undeveloped Land is part of the recreational area known as the Park?

For the reasons that follow, we answer appellant's question in the affirmative and appellees' question in the affirmative. We shall affirm the judgment of the circuit court, affirming the court's ruling in favor of appellees, but on the basis rejected by the court.

FACTUAL BACKGROUND

In 1990, appellees purchased 1.6 acres of improved real property in Severna Park, Maryland, identified as Lot "J" on a plat of Severna Park, defined in the land records of Anne Arundel County pursuant to a 1910 plat (the 1910 Plat). See Appendix 1.⁴ The deed by which appellees purchased the property referenced an approximate 1.25 acre parcel and a .35 acre parcel of land.⁵ Appellees resided in a house located on the 1.25 acre parcel and used both parcels as a single home site until 2002, after which they sold the 1.25 acre parcel and the house located thereon and retained the .35 acre site—the Barry Parcel—on which they wish to build a family home. During the twelve-year period when appellees resided on both parcels, appellees gained access to their home from Marlbrook Road, which abuts only the 1.25 acre parcel from the north. See Appendix 2.

Following the sale of the 1.25 acre parcel, appellees sought to build a driveway to access the Barry Parcel from the Improved Roadway. This required constructing the driveway over the Undeveloped Land that abutted the western boundary of the Barry Parcel, which appellees refer to in their brief as the "Park Drive Right-of-Way," pursuant to their argument, infra, that the Undeveloped Land was part of Park Drive and, thus, they had a right of way, or an easement,⁶ to access the Improved Roadway. See R.P. § 2-114(a). The Barry Parcel abuts neighboring properties to the North and East. See Appendix 2. To the South, the Barry Parcel abuts property denoted as "Park" on the 1910 Plat. Id. OSPIA is the record owner of both the "Park" and Park Drive.

Because the Barry Parcel is characterized by steep slopes and located within Anne Arundel County's Critical Area, appellees requested a variance to allow limited disturbance of those slopes. At the initial hearing before the Administrative Hearing Officer on October 21, 2003, a representative of OSPIA opposed the variance application.⁷

According to OSPIA, "under relevant deeds and the 1910 Plat, an area of `Park' property which it owns, separates Park Drive from the Barry Parcel, and ... [appellees], therefore, have no right to install their proposed driveway through its Park property to provide access to their site." The 1910 Plat, referenced in the deed by which appellees obtained the property, denotes areas of "Park" and other areas enclosed within dash lines, some of which separate the Barry Parcel from the Improved Roadway. See Appendix 1.⁸

On February 22, 2007, OSPIA filed a Complaint for Declaratory Judgment and Mandamus and Certiorari and Injunctive Relief, which was amended by its First Amended Complaint for Declaratory Judgment and Injunctive Relief, filed on August 22, 2007. OSPIA's complaint alleged, inter alia, that the Barry Parcel did not abut Park Drive, but rather, abutted an area of "Park," which was a recreational amenity for the community through which appellees could not install their driveway. OSPIA sought to have the circuit court determine the rights of the parties under the various deeds and plats affecting the Barry Parcel and its Park and Park Drive properties.

Appellees controverted OSPIA's claims, arguing that the Undeveloped Land was not part of the "Park," but rather, was part of Park Drive and, therefore, provided them with access to the Improved Roadway. See R.P. § 2-114(a). Appellees further argued that, even if the Undeveloped Land was, in fact, part of the "Park," OSPIA was estopped from asserting its rights as owner of the contested area because other property owners had installed driveways through other areas of "Park" to reach Park Drive.

Following four days of trial, on August 1, 2008, the circuit court determined that the Barry Parcel abutted the Park, which was a "recreational area" to be used "in common by property owners within the subdivision as an amenity," explaining that Park Drive was at least thirty to fifty feet away from the western boundary of the Barry Parcel and that appellees enjoyed no rights of ownership in the abutting Park property or any other property interest in the contested area except "in common with all other property owners for use as a recreational area."

Notwithstanding, the court declared that OSPIA was precluded by the doctrine of equitable estoppel from enforcing its right as the owner of the property to prevent the construction of the driveway through it, because "at least three, perhaps five other property owners have constructed a driveway into the Park in the vicinity of the Barry [Parcel] for the purpose of connecting to Park Drive" and that it was informed of "no effort by [OSPIA] to preclude their use." The court noted that those driveways were within "plain sight" and

built with [OSPIA's] permission or indifference or acquiescence or ignorance, but in any event that they have been there long enough, and are clearly known to [OSPIA] and have been for some time, and we were informed of no effort by [OSPIA] to preclude their use.

Moreover, in taking no enforcement action against those owners, or by requiring them to obtain post-hoc permission ... we find that [OSPIA] has demonstrated a lack of diligence.

The court noted that "Dr. Barry indicated that for many years, he has seen those driveways from his vantage point on Lot J" and that he "relied upon the existence of those driveways and the lack of enforcement against them in his conclusion that he enjoyed a similar right." The court concluded that this "is the right he has attempted to exercise through the zoning process" and that, "[i]n so doing, he has incurred substantial attorney's fees and engineering expenses."

Finding that appellees had been "misled" by OSPIA, the court continued:

Because the land records that might have otherwise ... informed Dr. Barry of his right or lack thereof to construct this driveway were so poorly drafted, ambiguous and conflicted, we cannot conclude that he was attempting to exercise a right that those records would have informed him he did not enjoy.

Assuming for the moment that he or his attorney had inspected those records ... they might, those records, might or perhaps they did reasonably suggest ... that he could, in fact build into the driveway.

I find that those records, although we have declared to the contrary, after this litigation and four days of trial, have informed this Court, which will hold that there was no such right, we believe that a prior inspection of those records might have led Mr. Barry and his lawyers to conclude that he enjoyed the right.

Accordingly, we cannot conclude that he is asserting a right that would have been, that he would learned [sic] he did not own, had he inspected the land records.

The court, therefore, declared that an "easement by estoppel" was established over and through the Park for the purpose of constructing and maintaining appellees' driveway.

This timely appeal followed. OSPIA appealed on the sole issue of the circuit court's establishment of the easement by estoppel in favor of appellees and appellees appealed the court's determination that the Undeveloped Land was part of the Park and not Park Drive. Additional facts will be provided infra as warranted.

STANDARD OF REVIEW

When, as here, an action is tried without a jury, we review the...