RDC Melanie Dr. v. Eppard
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Opinion
RDC Melanie Drive, LLC v. Mark R. Eppard, et al., No. 48, September Term 2020. Opinion by Hotten, J.
CIVIL PROCEDURE – RES JUDICATA – COLLATERAL ESTOPPEL
The Court of Appeals held that the issue of whether restrictive covenants prohibited a commercial golf driving range on any lot within a residential subdivision was neither barred by res judicata nor collateral estoppel. Res judicata did not apply because the issues litigated in a previous matter and the current matter were distinct. The former concerned a zoning variance and the latter concerned the application of a restrictive covenant. Collateral estoppel did not apply because a zoning board in the first matter expressly declined to consider the issue of restrictive covenants, which prevented the issue from being “actually litigated and determined by a valid and final judgment[.]” Cosby v. Dep’t of Hum. Res., 425 Md. 629, 639, 42 A.3d 596, 602 (2012).
PROPERTY LAW – RESTRICTIVE COVENANTS – CONSTRUCTION AND OPERATION
The Court of Appeals held that a restrictive covenant unambiguously intended to preserve the residential character of a small, single-family home community by applying a “reasonable construction” of a restrictive covenant as first articulated by the Court in Belleview Construction Co. v. Rugby Hall Community Ass’n, 321 Md. 152, 158, 582 A.2d 493, 496 (1990) (citation and internal quotation omitted). The Court also concluded that a majority of homeowners within the residential community validly amended the restrictive covenant by prohibiting a commercial golf driving range on any of the lots within the community. The amendment clarified a preexisting and uniform restriction on all of the lots that prevented offensive or noxious trades or activities and any activity that may become an annoyance or nuisance.
PROPERTY LAW – RESTRICTIVE COVENANTS – CONSTRUCTION AND OPERATION
The Court of Appeals held that a restrictive covenant unambiguously permitted the realignment of a lot boundary line. A restrictive covenant prohibited the creation of new lots through subdivision but expressly permitted the “adjustment or realignment of boundary lines[.]” A property owner permissibly realigned the boundary of their property pursuant to the plain language of the restrictive covenant. Circuit Court for Talbot County Case No. C-20-CV-18-000079 Argued: May 6, 2021 IN THE COURT OF APPEALS
OF MARYLAND
No. 48
September Term, 2020
__________________________________
RDC MELANIE DRIVE, LLC v. MARK EPPARD, ET AL. __________________________________
Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, Biran,
JJ. __________________________________
Opinion by Hotten, J. __________________________________
Filed: July 15, 2021
Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2021-07-15 11:08-04:00
Suzanne C. Johnson, Clerk The parties in this appeal own property in the Swan Point Subdivision (“Swan
Point”), located in Talbot County, Maryland.1 Swan Point consists of six lots, reflected in
the tax record as Lots A, B, C, D, 5, and 6. Petitioner, RDC Melanie Drive, LLC (“RDC”)
owns a nearby golf course, now known as the Links, and purchased Lot 6 in 2015. The
present dispute arises from an effort by RDC to convert Lot 6 into a commercial golf
driving range (“a driving range” or “the driving range”). Respondent, Mark Eppard, et al.
(“Homeowners”), represent four of the other five property owners in Swan Point who
oppose RDC’s proposed plan to construct a driving range on Lot 6.2
On August 21, 2017, RDC applied for zoning variances and exceptions from the
Talbot County Board of Appeals (“the Board”) to modify the boundaries of Lot 6 and to
construct the driving range. The Homeowners opposed the variance, contending that a
restrictive covenant, applicable to all lots within Swan Point, prevented the construction of
the driving range. The Board did not address the issue of the restrictive covenant, but
granted the zoning variance for RDC. In response, the Homeowners amended the
restrictive covenant to specifically prohibit a driving range on any lot within Swan Point.
The Homeowners sought judicial review of the Board’s determination in the Circuit
Court for Talbot County. Following a hearing on May 16, 2018, the circuit court found
1 “Swan Point [] is part of a larger subdivision that was created by a subdivision plat, . . . prepared by William W. Ludlow Jr., dated November 28, 1987 . . . and recorded among the Plat Records of Talbot County[,] Maryland in Plat Book 79[,] Folio 76.” Eppard v. RDC Melanie Drive, LLC, C-20-CV-18-000079, slip. op. at 2 (Md. Cir. Ct. July 12, 2019) (memorandum opinion and declaratory judgment). 2 The sixth property owner, Old Martingham LLC, declined to participate in any of the proceedings. that most of the decisions of the Board were supported by substantial evidence and
following a remand to the Board for additional findings, affirmed the decisions of the Board
on November 19, 2018.
The Homeowners sought a declaratory judgment in the circuit court for a
determination that the original Swan Point restrictive covenant, the Homeowners’
amendment to the original Swan Point restrictive covenant, and a restrictive covenant
specifically applicable to Lot 6—recorded in 2008 by former owners Vladimir D. Zajic
and Etta K. Zajic (“Zajic Declaration”)—prohibited the driving range. RDC filed a counter
complaint, contending that the development of a driving range and a realignment of the
property boundaries of Lot 6 was not prohibited by the restrictive covenants. The circuit
court entered a declaratory judgment, concluding that the Homeowners’ amended
restrictive covenant validly prohibited the construction of a driving range on Lot 6, and the
original Swan Point restrictive covenant permitted the realignment of Lot 6 property
boundaries. The circuit court also declared that the controversy surrounding the Zajic
Declaration was moot by virtue of the other declarations.
The parties cross-appealed the decision of the circuit court to the Court of Special
Appeals, which affirmed. The Court of Special Appeals consolidated the questions
presented and held that the determination of whether the original Swan Point restrictive
covenant prohibited a driving range was not precluded by collateral estoppel and that the
Homeowners’ amended restrictive covenant validly prohibited a driving range on Lot 6.
The Court of Special Appeals further held that the circuit court did not err when it declared
the Zajic Declaration moot and that the circuit court correctly determined that it was
2 permissible under the original Swan Point restrictive covenant for RDC to realign the
boundaries of Lot 6.
RDC timely appealed to this Court and the Homeowners filed a cross-petition. We
granted the petition for certiorari and the cross-petition on January 6, 2021, RDC Melanie
Drive, LLC v. Eppard, 472 Md. 4, 243 A.3d 1198 (2021), which resolve into the following
five questions:
1. Whether the factual issue of whether a driving range constitutes a “noxious or offensive trade or activity” or causes any “annoyance or nuisance” is precluded by res judicata or collateral estoppel.
2.
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RDC Melanie Drive, LLC v. Mark R. Eppard, et al., No. 48, September Term 2020. Opinion by Hotten, J.
CIVIL PROCEDURE – RES JUDICATA – COLLATERAL ESTOPPEL
The Court of Appeals held that the issue of whether restrictive covenants prohibited a commercial golf driving range on any lot within a residential subdivision was neither barred by res judicata nor collateral estoppel. Res judicata did not apply because the issues litigated in a previous matter and the current matter were distinct. The former concerned a zoning variance and the latter concerned the application of a restrictive covenant. Collateral estoppel did not apply because a zoning board in the first matter expressly declined to consider the issue of restrictive covenants, which prevented the issue from being “actually litigated and determined by a valid and final judgment[.]” Cosby v. Dep’t of Hum. Res., 425 Md. 629, 639, 42 A.3d 596, 602 (2012).
PROPERTY LAW – RESTRICTIVE COVENANTS – CONSTRUCTION AND OPERATION
The Court of Appeals held that a restrictive covenant unambiguously intended to preserve the residential character of a small, single-family home community by applying a “reasonable construction” of a restrictive covenant as first articulated by the Court in Belleview Construction Co. v. Rugby Hall Community Ass’n, 321 Md. 152, 158, 582 A.2d 493, 496 (1990) (citation and internal quotation omitted). The Court also concluded that a majority of homeowners within the residential community validly amended the restrictive covenant by prohibiting a commercial golf driving range on any of the lots within the community. The amendment clarified a preexisting and uniform restriction on all of the lots that prevented offensive or noxious trades or activities and any activity that may become an annoyance or nuisance.
PROPERTY LAW – RESTRICTIVE COVENANTS – CONSTRUCTION AND OPERATION
The Court of Appeals held that a restrictive covenant unambiguously permitted the realignment of a lot boundary line. A restrictive covenant prohibited the creation of new lots through subdivision but expressly permitted the “adjustment or realignment of boundary lines[.]” A property owner permissibly realigned the boundary of their property pursuant to the plain language of the restrictive covenant. Circuit Court for Talbot County Case No. C-20-CV-18-000079 Argued: May 6, 2021 IN THE COURT OF APPEALS
OF MARYLAND
No. 48
September Term, 2020
__________________________________
RDC MELANIE DRIVE, LLC v. MARK EPPARD, ET AL. __________________________________
Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, Biran,
JJ. __________________________________
Opinion by Hotten, J. __________________________________
Filed: July 15, 2021
Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2021-07-15 11:08-04:00
Suzanne C. Johnson, Clerk The parties in this appeal own property in the Swan Point Subdivision (“Swan
Point”), located in Talbot County, Maryland.1 Swan Point consists of six lots, reflected in
the tax record as Lots A, B, C, D, 5, and 6. Petitioner, RDC Melanie Drive, LLC (“RDC”)
owns a nearby golf course, now known as the Links, and purchased Lot 6 in 2015. The
present dispute arises from an effort by RDC to convert Lot 6 into a commercial golf
driving range (“a driving range” or “the driving range”). Respondent, Mark Eppard, et al.
(“Homeowners”), represent four of the other five property owners in Swan Point who
oppose RDC’s proposed plan to construct a driving range on Lot 6.2
On August 21, 2017, RDC applied for zoning variances and exceptions from the
Talbot County Board of Appeals (“the Board”) to modify the boundaries of Lot 6 and to
construct the driving range. The Homeowners opposed the variance, contending that a
restrictive covenant, applicable to all lots within Swan Point, prevented the construction of
the driving range. The Board did not address the issue of the restrictive covenant, but
granted the zoning variance for RDC. In response, the Homeowners amended the
restrictive covenant to specifically prohibit a driving range on any lot within Swan Point.
The Homeowners sought judicial review of the Board’s determination in the Circuit
Court for Talbot County. Following a hearing on May 16, 2018, the circuit court found
1 “Swan Point [] is part of a larger subdivision that was created by a subdivision plat, . . . prepared by William W. Ludlow Jr., dated November 28, 1987 . . . and recorded among the Plat Records of Talbot County[,] Maryland in Plat Book 79[,] Folio 76.” Eppard v. RDC Melanie Drive, LLC, C-20-CV-18-000079, slip. op. at 2 (Md. Cir. Ct. July 12, 2019) (memorandum opinion and declaratory judgment). 2 The sixth property owner, Old Martingham LLC, declined to participate in any of the proceedings. that most of the decisions of the Board were supported by substantial evidence and
following a remand to the Board for additional findings, affirmed the decisions of the Board
on November 19, 2018.
The Homeowners sought a declaratory judgment in the circuit court for a
determination that the original Swan Point restrictive covenant, the Homeowners’
amendment to the original Swan Point restrictive covenant, and a restrictive covenant
specifically applicable to Lot 6—recorded in 2008 by former owners Vladimir D. Zajic
and Etta K. Zajic (“Zajic Declaration”)—prohibited the driving range. RDC filed a counter
complaint, contending that the development of a driving range and a realignment of the
property boundaries of Lot 6 was not prohibited by the restrictive covenants. The circuit
court entered a declaratory judgment, concluding that the Homeowners’ amended
restrictive covenant validly prohibited the construction of a driving range on Lot 6, and the
original Swan Point restrictive covenant permitted the realignment of Lot 6 property
boundaries. The circuit court also declared that the controversy surrounding the Zajic
Declaration was moot by virtue of the other declarations.
The parties cross-appealed the decision of the circuit court to the Court of Special
Appeals, which affirmed. The Court of Special Appeals consolidated the questions
presented and held that the determination of whether the original Swan Point restrictive
covenant prohibited a driving range was not precluded by collateral estoppel and that the
Homeowners’ amended restrictive covenant validly prohibited a driving range on Lot 6.
The Court of Special Appeals further held that the circuit court did not err when it declared
the Zajic Declaration moot and that the circuit court correctly determined that it was
2 permissible under the original Swan Point restrictive covenant for RDC to realign the
boundaries of Lot 6.
RDC timely appealed to this Court and the Homeowners filed a cross-petition. We
granted the petition for certiorari and the cross-petition on January 6, 2021, RDC Melanie
Drive, LLC v. Eppard, 472 Md. 4, 243 A.3d 1198 (2021), which resolve into the following
five questions:
1. Whether the factual issue of whether a driving range constitutes a “noxious or offensive trade or activity” or causes any “annoyance or nuisance” is precluded by res judicata or collateral estoppel.
2. Whether the Original Declaration unambiguously restricts various activities to preserve the residential character of a small community of single-family homes?
3. Whether the Amended Declaration validly clarified the terms of the Original Declaration by prohibiting a commercial driving range on any lot within Swan Point?
4. Whether Article III, Paragraph 1, Subparagraph (k) of the Original Declaration permits the revision of existing lot lines?
5. Whether the controversy regarding the Zajic Declaration is moot?3
3 We rephrased and reordered the questions presented for analytical consistency and clarity. RDC’s petition for certiorari presented the following seven questions for review:
I. Whether, as a matter of first impression under Maryland law, the Amended Declaration is enforceable against RDC where the Amended Declaration adds new restrictions prohibiting golf course uses and driving ranges, and the language of the amendment clause of the Original Declaration does not expressly permit changes which add new restrictions?
II. Whether the [c]ircuit [c]ourt and the Court of Special Appeals erred in (continued . . .)
3 (. . . continued) ruling that the Amended Declaration does not add additional restrictions to Lot 6, where the Amended Declaration plainly adds new restrictions prohibiting golf course uses and driving ranges?
III. Whether the enforcement of the restrictions prohibiting any “noxious or offensive trade or activity” or any use that “may become an annoyance or nuisance,” or any amendment thereto, is subject to review on an objective standard?
IV. Whether Respondents’ claims that the use of Lot 6 as driving range will be “noxious or offensive” or cause “annoyance or nuisance” have been fully litigated before the Board of Appeals and those issues and claims are precluded by the doctrines of [collateral estoppel] and res judicata? And if not, whether RDC is entitled to trial on those issues and claims?
V. Whether the restrictions prohibiting any “noxious or offensive trade or activity” or any use that “may become an annoyance or nuisance to the neighborhood or other owners” are too vague to be enforced?
VI. Whether the Original Declaration prohibits golf course uses, driving ranges, or other commercial activity under uniform plan of development?
VII. Whether RDC is entitled to summary judgment on the Respondents’ Claims arising from Article III, Paragraph 1, Subparagraph (m) of the Original Declaration and from the Zajic Declaration?
The Homeowner’s conditional cross-petition presented the following five questions for review:
I. In this declaratory judgment action, were the lower courts obliged as a matter of law to review each provision of the applicable covenants addressed by the parties in the pleadings, and to declare the rights and obligations of parties based upon the language of the instruments, read together in accordance with their express terms and the intent thereof as stated in the instruments?
II. Did the lower courts err as a matter of law, by failing to render an analysis whether the Original Covenants, by their terms, intended only a residential and agricultural use subdivision? (continued . . .) 4 We answer the first question in the negative, the second, third, and fourth questions
in the affirmative and accordingly shall affirm the judgment of the Court of Special
Appeals. We need not reach the fifth question presented.
FACTS AND PROCEDURAL BACKGROUND
The Underlying Incident
The Links, formerly known as the Harbourtowne Golf Course, is a golf course
located in St. Michaels, Maryland. The Links was originally developed in the 1970s and
(. . . continued) III. Did the lower courts err in failing to address the express provision of the Original Declaration, in Article III, ¶ 1 (m), [] prohibiting any excavations on any Lot within the subdivision except in connection with permitted buildings; and did they erroneously fail to integrate that provision with the Zajic [Declaration], approved and accepted by all the parties or their predecessors, that specifically prohibits the construction of any buildings on the agricultural portion of Lot 6? Alternatively stated, were the trial court and the Court of Special Appeals clearly in error by declaring that the issues arising under the Zajic [Declaration] were moot under the circumstances of this case?
IV. Did the lower courts err as a matter of law in their interpretation that the Original Declaration, Article III, ¶ (k), permits a boundary line adjustment with a non-subdivision lot for the purpose of permitting resort and golf course uses on land intended for only residential and agricultural use?
V. Did the trial court err as a matter of law by failing to address Cross- Petitioners’ request for injunctive relief, and in the case of the Court of Special Appeals, did it likewise err in failing to remand this case to the trial court (as requested in the Homeowners’ briefs in the Court of Special Appeals) to address the question of ancillary injunctive relief in light of both courts’ conclusions that the Amended Declaration is a valid prohibition of driving range development?
5 is now part of the Perry Cabin resort. Swan Point was developed in 1988 and is adjacent
to and contiguous with the Links. Swan Point contains six lots: A, B, C, D, 5, and 6.4
Each lot at Swan Point is subject to the covenants and restrictions described in the
“DECLARATION OF RESTRICTIONS, COVENANTS AND CONDITIONS SWAN
POINT” (“the Original Declaration”). In pertinent part, the Original Declaration provided:
WHEREAS, the Declarants desire to provide for the preservation of the values and amenities in the community comprised of their collective properties; and to this end, desire to impose upon the Property [i.e., Swan Point] the covenants, restrictions, easements and equitable servitudes, hereinafter set forth, each and all of which are for the benefit of the Property and the owners thereof. . . . [A]ll of which are declared and agreed to be in aid of a plan for the improvement of the Property . . . and shall inure to the benefit of and be enforceable by the Declarants, their successors and assigns, and any person acquiring or owning an interest in the Property, including, without limitation, any person, group of persons, . . . or other legal entity. . . .
ARTICLE I *** (a) “Declarant” shall mean and refer to the Declarants hereinabove identified in the preamble to this Declaration, and their successors and assigns. . . .
(b) “Dwelling” shall mean and refer to any building or portion of a building situated upon the Property and designed and intended for use and occupancy as a residence by a single person or family. *** ARTICLE III
1. Prohibited Uses and Nuisances. Except for the activities of the Declarant during the construction or development of the community:
(a) No noxious or offensive trade or activity shall be carried on upon any Lot or within any dwelling, nor shall anything be done therein or
4 At the time of the present dispute, Albert G. Boyce and Kim T. Boyce own Lot B; Mark R. Eppard and Patricia A. Eppard own Lot C; Norman S. Hastings and Lily S. Hastings own Lot D; and Madeline C. Holmes owns Lot 5. Old Martingham, LLC owns Lot A, but has not participated in proceedings. RDC owns Lot 6. See infra page 9. 6 thereon, which may be or become an annoyance or nuisance to the neighborhood or other Owners. Without limiting the generality of the foregoing, no speaker, horn, whistle, siren, bell, amplifier or other sound device, except such devices as may be used exclusively for security purposes, shall be located, installed or maintained upon the exterior of any dwelling or upon the exterior of any other improvements constructed upon any Lot. No snowmobiles, go-carts, motor bikes, trail bikes or other loud engine recreational vehicles shall be run or operated upon any Lot or upon the roads serving the Property. *** (b) The maintenance, keeping, boarding or raising of animals, livestock, or poultry of any kind, regardless of number, shall be and is hereby prohibited on any Lot or within any dwelling, except that this provision shall not prohibit the keeping of horses, dogs, cats or customary household animals, provided that such animals are not a source of annoyance or nuisance to the neighborhood or other Owners and do not roam at-large. *** (f) No structure of a temporary character shall be erected, used or maintained on any Lot at any time.
(g) Except for entrance signs, directional signs, signs for traffic control or safety and such promotional sign or signs as may be maintained by the Declarant, no signs or advertising devices of any character shall be erected, posted or displayed upon, in or about any Lot or dwelling; provided, however, that one temporary real estate sign not exceeding four (4) square feet in area, may be erected upon any Lot placed upon the market for sale or rent. . . . *** (k) No Lot shall be subdivided; provided, however, that this restriction shall not be construed to prohibit the adjustment or realignment of boundary lines between Lots as long as such adjustment or realignment shall not create an additional Lot. *** (m) No excavation shall be made on any Lot except for the purpose of building thereon at the same time when the building operations are commenced, and no earth or sand shall be removed from any Lot except as a part of such operations; provided, however, that this restriction shall not be construed to prohibit the construction of swimming pools or ponds. *** (q) Not more than one (1) dwelling shall be erected on any one (1) Lot within the Property, said dwelling being restricted to a single family dwelling. . . . ***
7 ARTICLE VI
1. Amendment. This Declaration may be amended by an instrument executed and acknowledged by two-thirds (2/3) of the Owners of the Lots within the community, which instrument shall be recorded among the Land Records of Talbot County, Maryland. Unless a later date is specified in any such instrument, any amendment to this Declaration shall become effective on the date of recording. Except as required by the appropriate zoning authorities of Talbot County, while Declarant owns any Lot, no substantial change shall be made in this Declaration without the written consent appended to the amending instrument of all Owners, including Declarant.
2. Duration. Unless amended in accordance with the provisions of Paragraph 1 of this Article and the other requirements of this Declaration, and except where permanent easements or other permanent rights or interests are herein created, the covenants and restrictions of this Declaration shall run with and bind the land, and shall inure to the benefit of and be enforceable by the Owner of any Lot subject to this Declaration, their respective legal representatives, heirs, successors and assigns, for a term of thirty (30) years from the date of the recordation of this Declaration, after which the said covenants shall be automatically be extended until terminated by a vote of two-thirds (2/3) of the Owners of the Lots.
3. Construction and Enforcement. The provisions hereof shall be liberally construed to effectuate the purpose of creating a uniform plan for the development and operation of the Property. . . . *** (Emphasis added).
In 2008, the former owners of Lot 6, Vladimir D. Zajic and Etta K. Zajic executed
the Zajic Declaration, recorded among the land records of Talbot County at MAS Liber
1649, folio 503.5 The Zajic Declaration provided in pertinent part:
5 The Zajic Declaration was not recorded solely for the benefit of the Zajic family. The preamble to the Zajic Declaration also names Paul D. Haines and Ann N. Haines, Marsha E. Jewett, Mark R. Eppard and Patricia A. Eppard, and Norman S. Hastings and Lilly S. Hastings as “Benefited Owners[.]” At the time that the Zajic Declaration was recorded, these individuals owned Lots 5, B, C, and D, respectively. Only Lot A, now owned by Old Martingham LLC, was not named as a Benefited Owner. 8 1. Prohibited Structures. Commencing upon the Effective Date as hereinafter defined, no structure, habitation or other building may be constructed on the Property. This Declaration shall not prohibit, limit, restrict or otherwise impair the Declarants’ rights, in their sole discretion, to use, maintain, repair, replace or improve the driveway located on the Property. *** 4. Construction and Enforcement. The provisions hereof shall be liberally construed to effectuate the purpose of the preservation of the natural values and amenities of the Property. . . .
(Emphasis added).
In 2015, RDC purchased the Links. As part of its redevelopment and operation of
the Links, RDC sought to relocate the driving range to a waterfront property at 9599
Melanie Drive, St. Michaels. This property is designated as Lot 6 of Swan Point. 6 RDC
also intended to expand its existing golf course onto a portion of Lot 6. On July 21, 2016,
David W. Rattner, on behalf of RDC, sent a letter to all the Swan Point property owners,
communicating RDC’s intention to convert the southern portion of Lot 6 into a driving
range. The letter provided in pertinent part:
This plan enables us to lengthen the driving range and expand the 1st and 18th holes; moreover, relocating the driving range will allow us to significantly reduce the number of golf balls flying on to Martingham Drive. We hope Harbourtowne members agree that this will provide a much- improved golfing experience, and that residents will feel safer traveling along Martingham Drive.
To this end, we recently proposed a zoning change to Talbot County, which would allow us to incorporate this piece of the lot [into] the golf course.
6 Lot 6 was 29.711 acres before its conveyance and subsequent boundary modification by RDC. The proposed driving range would occupy approximately thirteen acres of the northern portion of the property. Lot 6 had been used as a spray field for the treated effluent from the nearby Martingham subdivision until the subdivision gained public sewer access. Lot 6 is partially located in a Critical Area on lands designated as a Resource Conservation Area. See RDC Melanie Drive, 2020 WL 5989518, at *3. 9 On July 29, 2016, the Zajic’s conveyed their interest in Lot 6 to RDC.
On or about May 12, 2017, RDC submitted a Critical Area Variance and Special
Exception Application for the driving range to the Board, which held evidentiary hearings
concerning RDC’s Application on August 7 and 21, 2017. Mark R. Eppard, Patricia A.
Eppard, and Madeline C. Holmes appeared at the hearings, and through counsel, submitted
a memorandum of law in opposition to RDC’s Application. On November 17, 2017, the
Board voted to approve RDC’s requested variances, which included an expansion of the
existing golf course onto a portion of Lot 6 to accommodate the relocated driving range
and an associated access path and drainage. The Board determined that it lacked the
authority “to consider the effects of or to enforce any private restrictive covenants that may
impact the subject property.”
On September 11, 2017, the Homeowners recorded an “AMENDED
DECLARATION AND REAFFIRMATION OF RESTRICTIONS, COVENANTS, AND
CONDITIONS FOR SWAN POINT SUBDIVISION” (“Amended Declaration”). The
Amended Declaration provided in pertinent part:
(u) No Lot within the Property, nor any portion thereof, shall be converted from residential or agricultural use into a commercial or private golf course use, nor shall any Lot be utilized as or in connection with a driving range or similar commercial use in connection with a golf course, it being the intent of the subscribers hereto that the Swan Point subdivision retain its character as a residential, single family dwelling community, and not be converted into a commercial resort property for use by members of the public, golf course members, or resort hotel guests.
10 In January 2018, RDC recorded a plat entitled “MINOR REVISION PLAT ON
THE LANDS OF RDC HARBOURTOWNE LLC AND MELANIE DRIVE, LLC[,]”
among the Plat Records of Talbot County in Plat Book MAS 86/04, pages 4 and 5 (“Minor
Revision Plat”), that adjusted the boundary line between Lot 6 and the neighboring golf
course.7 The boundary revision incorporated 12.811 acres of Lot 6 within the boundaries
of the adjacent and contiguous golf course.
Legal Proceedings
A. The Circuit Court
The Homeowners petitioned the Circuit Court for Talbot County to review the
Board’s decision.8 On May 16, 2018, the circuit court found that there was substantial
evidence to support most of the findings, but remanded the case to the Board for additional
factual determinations.9 Following additional findings by the Board on remand, the
Homeowners sought judicial review of the Board’s decision a second time, which was
affirmed again by the circuit court on May 6, 2019.
7 The record indicates several contradictory titles for the Minor Revision Plat. We provide the title of the Minor Revision Plat as originally recorded in the county plat records. 8 Pursuant to Md. Code Ann., Land Use § 4-401(a), “[a]ny of the following persons may file a request for judicial review of a decision of a board of appeals or a zoning action of a legislative body by the circuit court of the county: (1) a person aggrieved by the decision or action[.] . . .” 9 The additional factual determinations included whether the lot’s proposed use would affect marine, pedestrian, and vehicle traffic, existing agricultural uses, other permitted or nonconforming property uses, or exceed “the minimum adjustment necessary to relieve the unwarranted hardship.”
11 The Homeowners sought declaratory judgment10 in the circuit court that the
applicable covenants prohibited the conversion of Lot 6 into a driving range. The
Homeowners filed a motion for summary judgment and RDC filed a motion to dismiss or
in the alternative a motion for summary judgment.
The circuit court granted the Homeowners’ motion for summary judgment, agreeing
with the Board that the interpretation and enforcement of covenants “lay beyond the
capacity of the Talbot County Board of Appeals[.]” (Citation omitted). Therefore,
according to the circuit court, the Homeowners did not have an opportunity to be heard on
the issue.11 As a preliminary issue, the circuit court granted RDC’s motion for summary
judgment regarding the Minor Revision Plat. According to the circuit court, the plain
language of Article III, Paragraph 1, Subparagraph (k) of the Original Declaration
restricted the creation of new lots, but permitted the adjustment or realignment of boundary
lines. RDC’s Minor Revision Plat only provided for a lot line revision, and therefore was
not prohibited by the Original Declaration.
Md. Code Ann., Courts and Judicial Proceedings (“Cts. & Jud. Proc.”) §§ 3- 10
401–415 governs declaratory judgments. Cts. & Jud. Proc. § 3-406 states:
Any person interested under deed, will, trust, land patent, written contract, or other writing constituting contract, or whose rights, status, or other legal relations are affected by statute, municipal ordinance, administrative rule or regulation, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, administrative rule or regulation, land patent, contract, or franchise and obtain declaration of rights, status, or other legal relations under it. 11 The circuit court also noted that because RDC successfully argued to the Board that the Original Declaration was beyond the jurisdiction of the Board, it negated its collateral estoppel argument. 12 With respect to the interpretation of the Amended Declaration, the circuit court
concluded that “the Amended Declaration is consistent with the terms and purpose of the
Original Declaration, and the [c]ourt will enter a declaratory judgment to that effect[.]”
Article VI of the Original Declaration authorized the Homeowners to make amendments,
and the circuit court declared that the Amended Declaration, which prohibited the
construction of a driving range, “is a valid restriction on all of the lots in [] Swan Point []
and that it is appropriately applied to Lot 6. . . .” The circuit court also concluded that its
findings rendered moot the issue of whether the proposed driving range would violate the
Zajic Declaration.
B. The Court of Special Appeals
The Court of Special Appeals affirmed the circuit court in an unreported opinion.
RDC Melanie Drive, LLC v. Eppard, No. 1146, Sept. Term, 2019, 2020 WL 5989518 (Md.
Ct. Spec. App. Oct. 9, 2020). The Court began its analysis by noting that the purpose of
the Original Declaration was to “provide for the preservation of the values and amenities
in the community comprised of their collective properties.” Id. at *6. According to the
Court, “the Swan Point lots were purely residential, unlike the bordering Martingham
subdivision.” Id. at *7.
The Court of Special Appeals agreed with the circuit court that the Amended
Declaration was consistent with the Original Declaration, and the Amended Declaration
supported a uniform plan for the development of Swan Point as a residential community.
Id. at *7. The Court found no persuasive authority in Maryland for RDC’s contention that
a new restriction to Lot 6 would invalidate the Amended Declaration. Id. According to
13 the Court, the out-of-state cases cited by RDC were misplaced because the facts “differ
vastly” from the case at bar. Id. The Amended Declaration, unlike any of the cases cited
by RDC, did not create new restrictions, burdens, or covenants. Id. at *8. The Amended
Declaration “simply clarified the terms of the Original Declaration by giving a definition
to residential or agricultural land use that may become an annoyance or nuisance to the
neighborhood or other Owners.” Id. (internal quotation and footnote omitted).
The Court of Special Appeals also rejected RDC’s argument that the restriction in
Article III, Paragraph 1, Subparagraph (a) of the Original Declaration is void for vagueness,
because the out-of-state cases cited by RDC were “readily distinguishable” on the facts.
Id. The Court held that the Amended Declaration was legally enforceable against Lot 6.
Id. at *6.
The Court of Special Appeals next dismissed RDC’s contention that collateral
estoppel bars the Homeowners from relitigating the issue of whether the driving range
constitutes a “noxious or offensive trade or activity” or causes any “annoyance or nuisance
to the neighborhood or other owners[.]” Id. at *9. According to the Court, the substance
of the Original Declaration had yet to be litigated, which meant the Homeowners were not
precluded from being heard on the issue. Id.
The Court of Special Appeals agreed with the circuit court that because the
Amended Declaration had been determined valid and enforceable against Lot 6, the
controversy regarding the Zajic Declaration became moot. Id. The Court also agreed with
the circuit court that the Original Declaration permitted the realignment of Lot 6 boundary
14 lines under the Minor Revision Plat because the plain meaning of the Original Declaration
prohibited the creation of additional lots, not a line revision. Id. at *10.
DISCUSSION
Standard of Review
The standard of review for a grant of summary judgment is “whether the [circuit
court] was legally correct.” Sadler v. Dimensions Healthcare Corp., 378 Md. 509, 533,
836 A.2d 655, 669 (2003) (citation omitted). Upon review, this Court must consider the
facts in a light most favorable to the non-moving parties, and “if those facts are susceptible
to inferences supporting the position of the party opposing summary judgment, then a grant
of summary judgment is improper.” Ashton v. Brown, 339 Md. 70, 79, 660 A.2d 447, 452
(1995) (citation omitted). We review a circuit court’s decision whether to grant or deny
declaratory relief under an abuse of discretion standard. Converge Servs. Grp., LLC v.
Curran, 383 Md. 462, 477, 860 A.2d 871, 879–80 (2004); Md. Code Ann., Cts. & Jud.
Proc. § 3-409(a) (“Except as provided in subsection (d) of this section, a court may grant a
declaratory judgment or decree in a civil case, if it will serve to terminate the uncertainty
or controversy giving rise to the proceeding[.]”).
We have stated that “the interpretation of a restrictive covenant, including a
determination of its continuing vitality, is subject to [a] de novo [standard of] review as a
legal question.” Dumbarton Imp. Ass’n v. Druid Ridge Cemetery Co., 434 Md. 37, 55–56,
73 A.3d 224, 235 (2013) (quoting City of Bowie v. MIE Props., Inc., 398 Md. 657, 677,
922 A.2d 509, 521 (2007)). Principles of contract interpretation govern our review of a
restrictive covenant. City of Bowie, 398 Md. at 677, 922 A.2d at 521. We look to the
15 objective intent of the original parties as it “appears or is implied from the [restrictive
covenant] itself.” Dumbarton, 434 Md. at 52, 73 A.3d at 233 (quoting Balt. Butchers
Abattoir & Live Stock Co. v. Union Rendering Co., 179 Md, 117, 122, 17 A.2d 130, 133
(1941)).
Contentions of the Parties
RDC contends that the Amended Declaration is not enforceable because it imposes
a new restriction—the prohibition of a driving range—that was not included in the Original
Declaration. According to RDC, the circuit court and Court of Special Appeals erred by
ruling that the Amended Declaration was merely a clarification of the Original Declaration.
RDC argues that the Original Declaration never indicated whether a driving range was
prohibited, so the Amended Declaration did not merely clarify the Original Declaration,
but added a new wholesale restriction. In support of its argument, RDC cites Walton v.
Jaskiewicz, 317 Md. 264, 563 A.2d 382 (1989), for the proposition that when the original
declaration “does not expressly authorize the type of change sought to be made . . . the
purported amendment is not valid.” According to RDC, interpreting the Amended
Declaration as a mere clarification would give the Homeowners unfettered discretion in
prohibiting any activity that they deemed an annoyance or a nuisance.
RDC also argues that the circuit court and the Court of Special Appeals erred in its
application of the “uniform plan of development” doctrine. According to RDC, the
Original Declaration “does not provide that ‘[] Swan Point [] be used uniformly for
residential development[,]’” because the plain language of the Original Declaration never
imposed a requirement of solely residential use. (Citation omitted). According to RDC,
16 this Court has previously interpreted the specific omission of an activity in a restrictive
covenant as an indication of the restrictive covenant permitting that activity.
Even if the Original Declaration imposed a uniform plan of a residential
development, RDC claims there is no factual basis that a driving range would be
inconsistent with a residential development. A golf course has continuously and
contiguously operated alongside Swan Point for decades. At a minimum, RDC contends
that the issue of whether the Original Declaration prohibits the operation of a driving range
must be determined objectively and that RDC should be entitled to a trial on the issue.
Alternatively, RDC argues that the issue of whether a driving range violates Swan Point’s
covenants is procedurally barred by res judicata and collateral estoppel.
The Homeowners counter that the Amended Declaration does not add new
restrictions or exceed the scope of the original covenants. According to the Homeowners,
RDC incorrectly applied a rule of strict construction to the Original Declaration when the
Original Declaration unambiguously intended to create a small residential community of
single-family homes. The Homeowners also argue that the circuit court and the Court of
Special Appeals correctly determined that the Amended Declaration is consistent with the
Original Declaration. The circuit court found that the Original Declaration intended to
create a uniform plan of development for Swan Point that was restricted to residential and
agricultural usages. According to the Homeowners, the uniform plan of development was
an undisputed factual finding by the circuit court, not a legal conclusion.
The Homeowners contend that neither res judicata nor collateral estoppel apply.
According to the Homeowners, res judicata is inapplicable in this case because the present
17 litigation and the former matter before the Board involved different causes of action, and
the pertinent issue of restrictive covenant interpretation was not, nor could it have been
litigated before the Board. The Homeowners also assert that collateral estoppel is
inapplicable because its four elements are not satisfied in the case at bar. While the parties
in the matter before the Board and the circuit court were the same, the issue of restrictive
covenant interpretation was not actually litigated by the Board, because the Board
expressly declined to consider the issue of restrictive covenants while making its zoning
and variance decision.
On cross-appeal, the Homeowners argue that the circuit court and Court of Special
Appeals failed to fully analyze the original covenants. An objective analysis of the original
covenant, according to the Homeowners, evidences a clear intent for a quiet, residential
community. The Homeowners contend that RDC mistakenly assumed that the original
covenant was ambiguous. The Original Declaration expressly used the phrase “uniform
plan of development” to communicate an intent for the six properties to retain a purely
residential character. The only permitted deviation from the residential character in the
community comes from a narrow exception for agricultural uses on Lot 6 contained in the
Original Declaration.
Analysis
A. Neither res judicata nor collateral estoppel apply.
As a procedural matter, we note that the issue of whether the Original Declaration
prohibited the construction and operation of a driving range on Lot 6 is not barred either
by res judicata or collateral estoppel. In MPC, Inc. v. Kenny, 279 Md. 29, 367 A.2d 486
18 (1977), this Court explained the pertinent distinction between res judicata and collateral
estoppel:
If the second suit is between the same parties and is upon the same cause of action, a judgment in the earlier case on the merits is an absolute bar, not only as to all matters which were litigated in the earlier case, but as to all matters which could have been litigated ([res judicata]). If, in a second suit between the same parties, even though the cause of action is different, any determination of fact, which was actually litigated in the first case, is conclusive in the second case (collateral estoppel)[.]
Id. at 32, 367 A.2d at 489 (internal quotation and citation omitted).
Res judicata could not have applied in this case because the issues before the Board
and the circuit court were different, and the Homeowners never had an opportunity to
litigate the issue of the scope and meaning of the Original Declaration. The Board
considered whether to grant a zoning variance and expressly declined to consider “the
effects of or to enforce any private restrictive covenants that may impact the subject
property.” The parties presented a distinct legal question before the circuit court
concerning the meaning and operation of restrictive covenants. See Colandrea v. Wilde
Lake Cmty. Ass’n, 361 Md. 371, 392, 761 A.2d 899, 910 (2000) (noting one of the
requirements of the doctrine of res judicata is whether “the claim presented in the current
action is identical to the one determined in the prior adjudication[]”) (emphasis added).
Collateral estoppel is also not applicable because the scope and meaning of the
Original Declaration was not decided by the Board. See Cosby v. Dep’t of Hum. Res., 425
Md. 629, 639, 42 A.3d 596, 602 (2012) (“When an issue of fact or law is actually litigated
and determined by a valid and final judgment, and the determination is essential to the
judgment, the determination is conclusive in a subsequent action between the parties,
19 whether on the same or a different claim.”) (citation omitted) (emphasis added). The Board
expressly stated that it would not interpret the restrictive covenants. Therefore, the issue
of whether the restrictive covenants prohibited the operation of a driving range was not
actually litigated in the first case. We conclude that neither res judicata nor collateral
estoppel apply.
B. The unambiguous meaning of the Original Declaration was to create a residential community of single-family homes in Swan Point.
In Belleview Constr. Co. v. Rugby Hall Cmty. Ass’n, this Court explained the
standard for construing restrictive covenants in Maryland:
In construing covenants, ‘[i]t is a cardinal principle . . . that the court should be governed by the intention of the parties as it appears or is implied from the instrument itself.’ The language of the instrument is properly ‘considered in connection with the object in view of the parties and the circumstances and conditions affecting the parties and the property. . . .’ This principle is consistent with the general law of contracts. If the meaning of the instrument is not clear from its terms, ‘the circumstances surrounding the execution of the instrument should be considered in arriving at the intention of the parties, and the apparent meaning and object of their stipulations should be gathered from all possible sources.’
If an ambiguity is present, and if that ambiguity is not clearly resolved by resort to extrinsic evidence, the general rule in favor of the unrestricted use of property will prevail and the ambiguity in a restriction will be resolved against the party seeking its enforcement. The rule of strict construction should not be employed, however, to defeat a restrictive covenant that is clear on its face, or is clear when considered in light of the surrounding circumstances.
321 Md. 152, 157–58, 592 A.2d 493, 495–96 (1990) (citations omitted) (emphasis added).
“In particular, our recent cases have identified Belleview as the seminal case
addressing the evolution of our covenant jurisprudence from a purely strict construction
approach to that of a reasonableness approach.” City of Bowie, 398 Md. at 680, 922 A.2d
20 at 523 (citations omitted). “[R]easonable construction permits the consideration of the
circumstances surrounding the adoption of the ambiguous covenant to effectuate the
ascertainable intent of the parties.” Id., 922 A.2d at 523. “An ambiguity arises when the
language of the [restrictive covenant] is susceptible of more than one meaning to a
reasonably prudent person.” County Comm’rs of Charles Cty. v. St. Charles Assocs. Ltd.
P’ship, 366 Md. 426, 445, 784 A.2d 545, 556 (2001). “In endeavoring to arrive at the
intention, the words used should be taken in their ordinary and popular sense, unless it
plainly appears from the context that the parties intended to use them in a different sense,
or that they have acquired a peculiar or special meaning in respect to the particular subject-
matter.” Id. at 447–48, 784 A.2d at 558 (quoting Markey v. Wolf, 92 Md. App. 137, 153,
607 A.2d 82, 90 (1992)).
“An ambiguity does not exist simply because a strained or conjectural construction
can be given to a word.” Belleview, 321 Md. at 159, 582 A.2d at 496. “[A] covenant need
not address every conceivable issue or potential outcome to avoid being ambiguous; it need
only provide a clear answer for the matter in dispute.” Dumbarton, 434 Md. at 57, 73 A.3d
at 235.
In Belleview, Rugby Hall Estates, a residential community, along with a majority of
the owners of the lots in Rugby Hall Estates, executed and recorded a restrictive covenant
stating, “only one single family dwelling for private residence purposes shall be erected on
each lot.” 321 Md. at 154, 582 A.2d at 494. Lot A contained a single-family home and
was subdivided to create lots A and C. Id. at 155, 582 A.2d at 494. Belleview Construction
Company attempted to construct a home on a newly created lot C, but Rugby Hall Estates
21 challenged the proposed construction as “contrary to the scheme of development of the
community.” Id. at 156, 582 A.2d at 495. This Court applied its reasonable construction
approach to decide whether “each lot” described in the restrictive covenant referred to lots
as conveyed by the original developer, Rugby Hall Estates, or as they stood following re-
subdivision. Id. at 154, 582 A.2d at 493.
This Court held that the restrictive covenant plainly limited the construction of just
one single-family home per lot, as conveyed by the original developer. Id. at 158, 582
A.2d at 496. This Court examined the language in the original deed of covenant to infer
that the “general plan of the development was for an attractive and desirable community
consisting of lots of substantial but varying sizes, with little or no repetition in shape.” Id.
at 159, 582 A.2d at 496. This Court also noted that the subdivision maintained this
common plan of development for over thirty years. Id. at 159–60, 582 A.2d at 496. While
the restrictive covenant did not expressly state whether “each lot” referred to the original
subdivision of the community, this Court did not find any ambiguity in the original
restrictive covenant after construing the instrument in its entirety. See id. at 159, 582 A.2d
at 496 (“it almost defies common sense to suggest that although ‘lot’ obviously means a
lot as conveyed by the developer virtually everywhere it is used in the deed of restrictions,
it should somehow be afforded a different meaning . . . when it is used in this restriction.”).
In City of Bowie, this Court followed the same analytical approach used in Belleview
to similarly conclude as a matter of law that the language of the restrictive covenant was
“clear and unambiguous as to the intent of [the] parties.” 398 Md. at 682, 922 A.2d at 524.
MIE Properties acquired a 466-acre parcel of land from the City of Bowie (“the City”) with
22 the intent of partnering with the University of Maryland to create a research park on the
property. Id. at 669, 922 A.2d at 516. University of Maryland withdrew from the project,
but the original declaration of covenants maintained fourteen restricted usages for the
property, ranging from “[o]ffice buildings for science, technology, research and related
issues” to “convenience commercial establishments[.]” Id. at 669–70, 922 A.2d at 517.
MIE Properties eventually leased a portion of the property to a dance studio. Id. at 672,
922 A.2d at 518. The City challenged this lease as a violation of the restrictive covenant
for the property. Id., 922 A.2d at 518.
This Court interpreted the fourteen enumerated uses of the property to conclude that
the clear intent of the covenant was to “develop a research park, with or without the
involvement of the University of Maryland.” Id. at 683, 922 A.2d at 525. This Court
analyzed the fourteen permitted uses of the land and determined that each was consonant
with that overarching purpose, even though the covenant lacked any express language
specifying that the particular purpose for the property was to develop a research park. See
id., 922 A.2d at 525 (“Both the Agreement and the Covenants originally enumerated
[fourteen] permitted uses, each addressing that purpose.”). “We may not invalidate a
plainly written covenant to save a party from what may prove to be a poor business
decision.” Id., 922 A.2d at 525 (footnote omitted). “Even if the instruments were
ambiguous, the [circuit court] was not clearly erroneous in its factual finding as to the
purpose of the Covenants.” Id., 922 A.2d at 525 (footnote omitted).
Similar to the covenants found in Belleview and City of Bowie, the Original
Declaration, in the case at bar, does not state expressly that usage of Swan Point lots are
23 restricted to residential purposes, but it is plain from the four corners of the Original
Declaration that the purpose of the instrument was to maintain the residential character of
a small subdivision comprised of single-family homes.12 The Original Declaration begins
with a preamble stating the general purpose to impose restrictions that promoted the values
and character of the community:
WHEREAS, the Declarants desire to provide for the preservation of the values and amenities in the community comprised of their collective properties; and to this end, desire to impose upon the Property [i.e., Swan Point] the covenants, restrictions, easements and equitable servitudes, hereinafter set forth, each and all of which are for the benefit of the Property and the owners thereof. . . .
(Emphasis added). The preamble does not expressly state an intent to preserve the
residential values and amenities of the community, but similar to City of Bowie, we review
the restrictions following the preamble to ascertain that the overarching purpose of Original
Declaration was to preserve the residential character of the community. Article III,
Paragraph 1, Subparagraph (a) of the Original Declaration provides:
No noxious or offensive trade or activity shall be carried on upon any Lot or within any dwelling, nor shall anything be done therein or thereon, which may be or become an annoyance or nuisance to the neighborhood or other Owners. . . .
12 We note that Article III, Paragraph 1, Subparagraph (t) states: “Notwithstanding any provision contained herein to the contrary, the Owner of Lot 6 shall be permitted to plant and harvest crops on Lot 6, including the leasing of such property to a farm tenant.” This specific carve out recognized the preexisting agricultural activity on Lot 6 and further demonstrates that but for this one exception, the remainder of the Original Declaration is dedicated to the preservation of a single-family, residential community. See Williar v. Balt. Butchers’ Loan & Annuity Ass’n, 45 Md. 546, 552 (1877) (“according to the maxim ‘the exception proves the rule,’ all other cases are left within the operation of the enacting clause.”) (citation omitted). 24 While “noxious or offensive trade or activity” or the word “anything” may be
capacious language, it is not ambiguous in context of the entire covenant and this present
dispute. See supra Dumbarton, 434 Md. at 57, 73 A.3d at 235. It illustrates the intention
of the Original Declaration in preserving the residential character of the subdivision by
broadly restricting activities that would disturb the property owners of Swan Point. Article
III, Paragraph 1, Subparagraph (a) continues with a demonstrative, but non-exhaustive list
of activities that are prohibited:
Without limiting the generality of the foregoing, no speaker, horn, whistle, siren, bell, amplifier or other sound device, except such devices as may be used exclusively for security purposes, shall be located, installed or maintained upon the exterior of any dwelling or upon the exterior of any other improvements constructed upon any Lot. No snowmobiles, go-carts, motor bikes, trail bikes or other loud engine recreational vehicles shall be run or operated upon any Lot or upon the roads serving the Property.
These enumerated loud noise-making devices are distinctly residential in nature and
therefore demonstrate a broad prohibition of activities that may be found on one lot that
may disturb another residence within Swan Point. See Norfolk and Western Ry. Co. v.
American Train Dispatchers Ass’n, 499 U.S. 117, 129, 111 S. Ct. 1156, 1163 (1991)
(“Under the principle of ejusdem generis, when a general term follows a specific one, the
general term should be understood as a reference to subjects akin to the one with specific
enumeration.”) (citation omitted). The security systems and recreational vehicles,
referenced in the restriction, are made in relation to “any dwelling” or “any Lot[,]” which
was defined elsewhere in the Original Declaration as belonging to “a residence of a single
person or family.” (Emphasis added). This Court has acknowledged that language
25 pertaining to “single-family” homes connotes a specific, limited use of property for quiet
enjoyment, even more so than restrictive covenants merely using the term “residential.”
See Lowden v. Bosley, 395 Md. 58, 68–69, 909 A.2d 261, 267 (2006) (noting the usage of
“single family” in a restrictive covenant narrows what can be construed as “residential”).
The restrictions unambiguously seek to preserve the residential character of Swan Point.
The list of restricted activities provided in the Original Declaration prohibits any
potentially disturbing commercial activities or trades, namely the hitting of golf balls, the
operation of golf ball collection machines, or loud congregations of driving range patrons,
because such activities were plainly not within the contemplated residential character of
the subdivision. It would be unnecessary for the Original Declaration to have specifically
prohibited golf activities or a driving range when every other restriction in the Original
Declaration plainly pertains to the maintenance of a small, residential community of single-
family homes.13
This interpretation is further supported by a series of other specific prohibitions in
Article III, seeking to limit what a property owner or subsequent property owner may do
to a lot and a single-family home located within the subdivision. A lot owner may not keep
13 RDC argues that because Swan Point was developed next to a golf course, the omission of a specific restriction against golf or a driving range demonstrates that the activity is not prohibited under the Original Declaration. As a matter of construction, and contrary to RDC’s contention, a specific prohibition against golf activities would undermine the purpose of the Original Declaration to maintain the subdivision’s residential character by suggesting, through negative implication, that other unenumerated commercial activities were permitted. In re Walker, 473 Md. 68, __ n.9, 248 A.3d 981, 991 n.9 (2021) (“[T]o express or include one thing implies the exclusion of the other, or of the alternative[.]”) (quoting Walzer v. Osborne, 395 Md. 563, 574 n.6, 911 A.2d 427, 433 n.6 (2006)). 26 or raise animal livestock, may not store junk or commercial vehicles, may not erect a
temporary structure, may not place signage, may not place satellite dishes that are visible
from the roadway, may not hunt, may not excavate the lots, may not place exterior lighting
facing beyond the lot, and may not construct more than one single-family dwelling per lot
except for caretakers homes.
The latter phrase in Article III, Paragraph 1, Subparagraph (a), “which may be or
become an annoyance or nuisance to the neighborhood or other Owners[,]” provides an
additional indication of the intent of the developers to preserve the residential character of
Swan Point. (Emphasis added). Over a century ago, in Lohmuller v. Samuel Kirk & Son
Co., 133 Md. 78, 104 A. 270 (1918), this Court distinguished between an annoyance and a
nuisance. Id. at __, 104 A. 270 at 274 (“While it shows that the noise complained of does
subject the plaintiffs . . . to some annoyance and discomfort, the record does not, in our
judgment, present such a clear case of an invasion by the defendant of the rights of the
plaintiffs as entitled them to the relief prayed.”).
Not everything that causes annoyance constitutes a nuisance, because a nuisance
requires a substantial and unreasonable interference with a property owner’s use and
enjoyment of land. Compare Exxon Mobil Corp. v. Albright, 433 Md. 303, 410, 71 A.3d
30, 95 (2013) (“although there is no dispute that any interference with Appellees’
properties by Exxon was unreasonable, there is little to suggest that Appellees with non-
detect results experienced a substantial interference[]”) (emphasis added), with
Restatement (Second) of Torts § 821D (Am. Law Inst. 1979) (June 2021 Update)
(“Freedom from discomfort and annoyance while using land is often as important to a
27 person as freedom from physical interruption with his [or her] use or freedom from
detrimental change in the physical condition of the land itself.”). The language used in the
restrictive covenant demonstrates a broad and inclusive continuum of prohibited activities
ranging from those that are merely an annoyance to those that satisfy the legal definition
of nuisance.
We do not have to determine whether the construction and operation of a driving
range would constitute a nuisance.14 Our analysis is limited to what the drafters of the
Original Declaration intended when using language restricting activities that may become
an annoyance or nuisance as determined by the Homeowners. Without having to specify
every possible annoying or nuisance activity, the Original Declaration employed broad
14 The initial letter sent to Swan Point residents on behalf of RDC acknowledged the occurrence of errant golf balls leaving the driving range: “relocating the driving range will allow us to significantly reduce the number of golf balls flying on to Martingham Drive.” We note several cases from our sister jurisdictions who have determined that errant golf balls or noise generated from golf activity may constitute a nuisance. Gellman v. Seawane Golf & Country Club, Inc., 24 A.D.3d 415, 805 N.Y.S.2d 411 (2005) (holding that the operation of a driving range that allowed golf balls to escape the range and land on property across the street was a nuisance); Mish v. Elks Country Club, 35 Pa. D. & C.3d 435, 436 (1983) (“The continuing possibility (probability) that balls will strike plaintiffs’ property is clearly an invasion of their interest in the private use and enjoyment of land.”); Sierra Screw Products v. Azusa Greens, Inc., 88 Cal. App. 3d 358, 370, 151 Cal. Rptr. 799, 806 (1979) (recognizing that operation of adjacent golf course may constitute nuisance despite enabling zoning ordinance); Fenton v. Quaboag Country Club, Inc., 353 Mass. 534, 538–39, 233 N.E.2d 216, 219 (1968) (“The pertinent inquiry is whether the noise (the invasion of golf balls) materially interferes with the physical comfort of existence . . . according to the simple tastes and unaffected notions generally prevailing among plain people (nongolfers). The standard is what ordinary people (again those who eschew golf), acting reasonably, have a right to demand in the way of health and comfort under all the circumstances.”); Sans v. Ramsey Golf & Country Club, Inc., 29 N.J. 438, 449, 149 A.2d 599, 606 (1959) (“the activities of defendant [golf course operator] are manifestly incompatible with the ordinary and expected comfortable life in plaintiffs’ home”). 28 language to ensure property owners at Swan Point could enjoy and maintain the residential
character of their community.
The Original Declaration also tied the determination of what constitutes an
annoyance to the owners of Swan Point: “which may be or become an annoyance or
nuisance to the neighborhood or other Owners.” (Emphasis added). Both the Court of
Special Appeals and circuit court correctly noted that what this particular “neighborhood”
deems an annoyance necessarily required a subjective interpretation by the majority of lot
owners of Swan Point. The Original Declaration also instructs that interpretation of the
restrictive covenants is to be made liberally and in conformance with its overarching
purpose to create a uniform, residential community: “The provisions hereof shall be
liberally construed to effectuate the purpose of creating a uniform plan for the development
and operation of the Property.” Similar to Belleview, Swan Point maintained this uniform
plan of development for thirty years. See 321 Md. at 160, 582 A.2d at 496. We find no
indication in the record that the circuit court’s finding as to Swan Point’s uniform plan of
development as a residential community was clearly erroneous.
We conclude that the Original Declaration unambiguously imposed restrictions on
certain activities, both residential and commercial, to preserve the residential character and
uniform plan of development of a small, single-family community.15
15 By implication of its unambiguous language, we also conclude that the Original Declaration was not too vague to be enforced.
29 C. The Court of Special Appeals correctly determined that the Amended Declaration clarified the Original Declaration by prohibiting commercial driving ranges on the six lots of Swan Point.
We need not resolve whether the Original Declaration would have prohibited a
driving range on Lot 6 because we agree with the Court of Special Appeals and circuit
court that the Amended Declaration was consistent with the Original Declaration and
validly prohibited a driving range on any lot within Swan Point.16 Pursuant to Article IV
of the Original Declaration, the Homeowners specified the following amendment:
(u) No Lot within the Property, nor any portion thereof, shall be converted from residential or agricultural use into a commercial or private golf course use, nor shall any Lot be utilized as or in connection with a driving range or similar commercial use in connection with a golf course, it being the intent of the subscribers hereto that the Swan Point subdivision retain its character as a residential, single family dwelling community, and not be converted into a commercial resort property for use by members of the public, golf course members, or resort hotel guests.
16 Homeowners contended on cross-petition that the circuit court and the Court of Special Appeals erred by failing to render an analysis of whether the Original Declaration restricted Lot 6 to residential or agricultural usages. Neither the circuit court nor the Court of Special Appeals erred in this regard as each court necessarily analyzed the Original Declaration to conclude, respectively, that a driving range would violate the uniform, residential character of Swan Point. RDC Melanie Drive, 2020 WL 5989518, at *7–8 (“Indeed, the Swan Point lots were purely residential, unlike the bordering Martingham subdivision. . . . We agree with the circuit court that [the Amended Declaration] is consistent with the Original Declaration and supports a uniform plan for the development of the property. Notably, a driving range would not support the uniformity of an otherwise residential community[]”); Eppard, C-20-CV-18-000079, at *18 (“The scope of the Amended Declaration was within the reasonable contemplation of the Original Declaration[.] . . . One could reasonably anticipate such an amendment from the plain language of the Original Declaration.”). Similarly, the circuit court and Court of Special Appeals did not err in failing to address Article III, Paragraph 1, Subparagraph (m) of the Original Declaration or integrating the Zajic Declaration into their analysis. For reasons previously stated, neither of these provisions warranted individual consideration by the circuit court and Court of Special Appeals in reaching their respective decisions. 30 RDC cites Walton for the proposition that a majority of landowners cannot enact an
amendment over the objection of a minority of landowners within a subdivision. RDC’s
reliance on Walton is misplaced, and supports our conclusion that the Amended
Declaration clarified the purpose of the Original Declaration to preserve the residential
character of Swan Point. In Walton, a developer recorded a restrictive covenant stating,
“[t]here shall be no further subdivision of lots in this tract.” 317 Md. at 265, 563 A.2d at
382. The preamble to the restrictive covenant expressed an intent to assure uniformity of
development and to “make certain that said restrictions shall apply uniformly to all the lots
in said subdivision[.] . . .” Id., 563 A.2d at 382. A family owned Lot 26 in the subdivision
and wished to split its lot into two smaller properties. Id. at 266, 563 A.2d at 383. The
Walton family obtained the support of a majority of owners and amended the restrictive
covenant to read: “Except for Lot 26, Plat Two as shown on the Plat of Subdivision, there
shall be no further subdivision of lots in this tract. Lot 26, Plat Two shall not be
resubdivided into more than two lots.” Id., 563 A.2d at 383. Edmond Jaskiewicz and a
minority of other owners opposed the amendment. Id., 563 A.2d at 383.
This Court held that the amendment was not authorized by the original restrictive
covenant because it violated the original intent of the developers to uniformly apply the
restriction to the entire subdivision. Id. at 272–73, 563 A.2d at 386. While the original
restrictive covenant permitted changes through amendment, an amendment must maintain
the intent of the original restrictive covenant to apply restrictions uniformly to all lots
within the residential subdivision. Id. at 272, 563 A.2d at 386.
31 In the case at bar, and consistent with Walton, the majority of property owners
amended the Original Declaration, while maintaining the intent of the Original Declaration
to uniformly impose restrictions that maintain the residential character of the subdivision.
Both the Original Declaration and the Amended Declaration seek to preserve the residential
character of Swan Point by imposing restrictions that apply uniformly to each lot in the
subdivision. Unlike Walton, the majority of Homeowners at Swan Point did not attempt
to deviate from the uniform, residential character of the subdivision. The owners clarified
the preexisting, uniform, and broad restriction against offensive, noxious, annoying, or
nuisance activities that applied to all lots in Swan Point by specifying a driving range as
one such activity. Had the Homeowners amended the Original Declaration by prohibiting
golf activities solely on Lot 6, then Walton would control, and the amendment may have
been invalid. We hold that the Amended Declaration validly clarified a restriction against
activities contravening the residential character of Swan Point.17
17 We neither need to discuss, nor distinguish, the out-of-state cases cited by RDC because, as the Court of Special Appeals correctly noted, “the terms of the Original and Amended Declarations in this case differ vastly from the restrictions and covenants in the out-of-state cases.” RDC Melanie Drive, 2020 WL 5989518, at *7. We also reject the Homeowners’ argument that the circuit court failed in granting injunctive relief and the Court of Special Appeals failed to remand the case to address the question of injunctive relief. “The issuance of a declaratory judgment does not lead ineluctably to ancillary relief, such as an injunction.” Falls Road Cmty. Ass’n, v. Baltimore County, 437 Md. 115, 150, 85 A.3d 185, 206 (2014). “In some instances, a declaratory judgment may itself eliminate the need for injunctive relief[.] . . .” See id. n.44, 85 A.3d at 206 n.44. 32 D. The Court of Special Appeals correctly concluded that Article III, Paragraph 1, Subparagraph (k) of the Original Declaration permitted RDC to make a lot line revision.
The plain text of Article III, Paragraph 1, Subparagraph (k) of the Original
Declaration clearly permitted the revision of existing lot lines:
(k) No Lot shall be subdivided; provided, however, that this restriction shall not be construed to prohibit the adjustment or realignment of boundary lines between Lots as long as such adjustment or realignment shall not create an additional Lot.
In the case at bar, RDC recorded the “Minor Revision Plat” to adjust the boundary
line between Lot 6 and the Links. There is nothing in the record to suggest that RDC
created a new lot from the realignment of the boundary lines. We agree with both the
circuit court and the Court of Special Appeals “that the plain language of the Original
Declaration is consistent with the Minor Revision Plat.” RDC Melanie Drive, 2020 WL
5989518, at *10.
CONCLUSION
For the reasons previously explained, we affirm the judgment of the Court of Special
Appeals.
JUDGMENT OF THE COURT OF SPECIAL APPEALS IS AFFIRMED. COSTS TO BE PAID BY PETITIONER.
Related
Cite This Page — Counsel Stack
255 A.3d 119, 474 Md. 547, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rdc-melanie-dr-v-eppard-md-2021.