In a dispute between the developer and owner of an assisted living facility and the neighboring property owners and their Advisory Board, the Court of Special Appeals held that restrictive covenants, which permitted “recreation” but forbid “structures,” prohibited the building of a shed to help the residents of the assisted living facility engage in recreational gardening.

In 1988, the Chestnut Real Estate Partnership (the “Chestnut Partnership”) submitted to the Baltimore County Review Group (“CRG”) a plan to build a continuing care/assisted living facility on Joppa Road on a 40.92 acre tract of land.  The CRG approved the plan but adjacent property owners appealed to the Baltimore County Board of Appeals.  As a result of the community opposition and to avoid litigation, the Chestnut Partnership, the Ruxton-Riderwood-Lake Roland Area Improvement Association, and several adjoining property owners entered into a written agreement dated October 13, 1988 stipulating the size and scope of the development (the “Restrictive Covenant Agreement”). The Board of Appeals entered a consent order adopting and incorporating the Restrictive Covenant Agreement.  Thereafter, the Blakehurst Life Care Community consisting of 278 units was constructed.

In 2000, the Advisory Board contacted the Chestnut Partnership and objected to the construction of a garden shed and two other structures. The Advisory Board wanted the structures to be removed.  When the parties could not agree, the Advisory Board and certain individuals filed suit in the Circuit Court for Baltimore County to enforce the provisions of the Restrictive Covenant Agreement and to require the removal of the structures.  Following a trial, the Circuit Court entered an order declaring that the Restrictive Covenant Agreement was enforceable, and requiring the removal of an equipment/tool shed and foundation and the garden shed and its foundation.  The Chestnut Partnership appealed to the Court of Special Appeals.

At issue was the proper interpretation of Paragraph 2.b. of the Restrictive Covenant Agreement which provides in part as follows:

2. Use and Term Limitation

The Chestnut Partnership argued that the garden shed was explicitly permitted as an adjunct to and a necessary part “of the recreational gardening activities envisioned by the Agreement for the residents of Blakehurst.” Since recreational use is permitted by the Restrictive Covenant Agreement, and gardening is a recreational activity, the garden shed is ancillary to the permitted use and is itself a permitted use.  The Court of Special Appeals disagreed.

Pointing out that Maryland has long adhered to the law of objective interpretation of contracts, the Court held that the restrictive covenants were to be enforced as written.  According to the Court, the clear intention of Paragraph 2.b. of the Restrictive Covenant Agreement is to preserve open space.  The Court stated:
 

Since the garden shed violated the clear terms of the Restrictive Covenant Agreement, the decision of the Circuit Court for Baltimore County was affirmed.

In deciding other issues raised by the appeal, the Court also held (i) that a mandatory injunction may issue to prevent violations of restrictive covenants without an explicit showing of irreparable harm, (ii) collateral estoppel precludes further inquiry into a parking issue raised by Chestnut Partnership, and (iii) the award of attorney’s fees was proper.

Chestnut Real Estate Partnership et al.  v. Erwin W. Huber et al., No. 1592, September Term 2001 No. 158, September Term 2001, in the Court of Special Appeals of Maryland, filed November 27, 2002.