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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1592 September Term, 2001

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CHESTNUT REAL ESTATE PARTNERSHIP, ET AL. v. ERWIN W. HUBER, ET AL.

Eyler, James R., Adkins, Smith, Marvin H., (Retired, Specially

Assigned )

JJ. ________________________________ Opinion by Smith, J.

Filed: November 27, 2002

This

case

involves

a

tug-of-war

between

the

owners

and

developers of the Blakehurst Life Care Community, the appellants, and representatives of its neighbors, members of a neighborhood Advisory Board, the appellees. Presently, the parties quarrel over the manner in which appellants intend to improve the Blakehurst property, and the equitable remedies fashioned by the circuit court to resolve their dispute. Appellants1 seek our review of two orders of the Circuit Court for Baltimore respectively. County dated August 28 and November 29, 2001,

In the former, the circuit court granted injunctive

relief directing Chestnut to remove a garden shed and awarding attorney's fees. By its latter order, the court enjoined the

construction of additional parking spaces, and awarded counsel fees to appellees with respect to the subject of the November Order. For the reasons set forth below, we shall affirm the circuit court in all respects, and remand for the circuit court to render findings of fact and conclusions of law with respect to additional attorneys' fees and costs. Background There have been two separate and distinct appeals involving

The appellants in this action, defendants below, are the Chestnut Real Estate Partnership, West Joppa Road Limited Partnership, Continental Care, Inc., Chestnut Village, Inc., Rosedale Care, Inc. and Mullan Development, Inc. They will be referred to collectively as appellants or Chestnut. Appellees are the neighborhood Advisory Board, which was created pursuant to Section 432.3F of the Baltimore County Zoning regulations, and certain individuals. We will note them as the Advisory Board or appellees.

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these parties in this Court.

The first action arises out of a 1999

proposal by Chestnut to create a total of 63 additional parking spaces at the Blakehurst Life Care Community. vigorously Baltimore request. opposed County by neighbors and their This move was Advisory Board. the

zoning

administrators

initially

approved

On appeal by the Advisory Board, the Baltimore County

Board of Appeals reversed, and disapproved Chestnut's proposal. In the ensuing action for judicial review of this decision, Judge Wright, in the Circuit Court for Baltimore County, affirmed the Board's decision. On appeal to this Court by the developer and Blakehurst Life

owner of Blakehurst, we upheld the circuit court.

Care Community/The Chestnut Real Estate Partnership v. Baltimore County 146 Md. App. 509, 807 A.2d 179 (2002) (Blakehurst I). Writing for this Court, Judge Sharer reviewed in detail the factual and procedural history of the restrictive covenant Agreement

executed by these parties: Blakehurst Life Care Community is a 278-unit continuing care/assisted living community located on Joppa Road in Towson, Baltimore County. It was developed by the Chestnut Partnership in 1988. Because there was, at that time, opposition from the neighboring community (represented primarily by the Ruxton-Riderwood-Lake Roland Area Improvement Association) (the Association) in which the development was planned, there evolved a restrictive covenant agreement (the Agreement) which allowed the initial development to go forward. The Agreement was adopted by the appropriate Baltimore County agencies as the operative 2

controlling document for the development of Blakehurst, and for future expansions and improvements. * * * In 1988, the Chestnut Partnership submitted to the Baltimore County Review Group (CRG) a plan to build a continuing care facility on a 40.92 acre tract at 1055 Joppa Road in Towson. On September 8, 1988, following a public meeting, the CRG approved the plan. Adjacent property owners and the Association filed an appeal of the CRG approval to the Baltimore County Board of Appeals. The Chestnut Partnership then filed petitions for a special exception and variance with the Baltimore County Zoning Commissioner. Following a hearing on September 25, 1988, the Zoning Commissioner denied the requests ruling that ". . . the size and scope of the project is inconsistent with the peaceful use and enjoyment of the surrounding neighborhood." The Chestnut Partnership filed a timely appeal of that decision to the Board. To avoid further administrative litigation, and probable appeals, relating to the proposed development, the Chestnut Partnership, the Association, and several individual adjacent property owners entered into the Restrictive Covenant Agreement. The Agreement, executed on October 13, 1988, stipulated that specifically identified maps, plans, plats, and other pertinent documents, would define the size and scope of the Blakehurst development (1) for 25 years on the portion of the land containing the residential buildings and (2) for 50 years on the remaining portion of the land. The Chestnut Partnership, the Association and the individual parties to the Agreement then requested that the Board consolidate the pending appeals (the CRG approval appeal and the special exception denial appeal) and to approve the development in the terms defined 3

by the Agreement. The Board acquiesced and, on October 25, 1988, entered a consent order adopting and incorporating the Agreement. The consent order provided, in relevant part, that The Continuing Care Facility hereby approved shall conform in all respects to the terms and conditions of the October 13, 1988 Restrictive Covenant Agreement and Exhibits between the parties, which is hereby incorporated as a part of this Order as if it were fully set forth herein. Blakehurst was then developed and constructed by the Chestnut Partnership. Blakehurst I, 146 Md. App. at 512-13, 807 A.2d at 181. We shall

briefly revisit the administrative review proceedings as necessary for our discussion of the instant appeal. In addition to being enrolled as an order of the Board of Appeals, the parties' restrictive covenant Agreement was also duly recorded in the Baltimore County land records on March 24, 1992. It has been amended by five separate addenda since the parties reached their accord in 1988. In 1996, Chestnut approached the

Advisory Board with proposals for more parking and other additions. The Advisory Board approved these requests, which were then

embodied in the fourth and fifth addenda to the Agreement.

For the

1999 parking proposals, however, Chestnut did not avail itself of this procedure. The Advisory Board and its members objected. The

resulting conflict was resolved, as we have seen, by administrative litigation and the ensuing actions for judicial review. The proposed extension of the parking was not the only point 4

over which the parties disagreed. 2000, the Advisory Board,

On February 29, and June 21, through counsel, contacted

representatives of Chestnut and objected to the construction of a garden shed, the presence of two other structures, and other apparent changes to the Blakehurst landscape not relevant here. The Advisory Board sought the removal of the offending structures and other action. The parties reached an impasse. Appellees then filed this

action in the Circuit Court for Baltimore County seeking to enforce the Agreement. They prayed for injunctive relief which would They also In

require the dismantling of the offending structure.

requested a declaration that the Agreement was enforceable.

addition, they sought attorney's fees under Paragraph 18, the enforcement provision of the Agreement. Following a lengthy bench trial, the circuit court (Cahill, J.) ruled in favor of the Advisory Board. judgment relief. order, the court granted In its August 23, 2001 and declaratory

injunctive

It ordered the dismantling of a metal equipment/tool shed

structure and foundation, which was located south of Cemetery Road, and the garden shed that had been erected during 1999-2000,

including its foundation.

It declared the restrictive covenant The circuit court also

Agreement to be enforceable by appellees.

awarded $27,147.85 in attorneys' fees and costs. Following this order, Judge Wright issued his order in the

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related judicial review action, affirming the decision of the Board of Appeals. That order was affirmed by this Court in Blakehurst I.

Armed with Judge Wright's decision, the Advisory Board on September 14, 2001, moved for partial summary judgment on the remaining issues in the injunctive action in the case sub judice. On

November 29, 2001, Judge Cahill enjoined Chestnut from using certain existing parking spaces, and prevented additional parking. The court awarded additional attorneys' fees in conjunction with this second stage of the action. This timely appeal followed. Discussion Appellants raise four issues in this appeal, which we have recast somewhat: I. Whether the Circuit Court erred in holding that the construction of the garden shed violates Paragraph 2.b of the Restrictive Covenant Agreement? II. Whether the Circuit Court abused its discretion in granting mandatory injunctive relief without a finding of irreparable harm? III. Whether the Circuit Court erred in holding that the Agreement required an Addendum before Blakehurst could construct additional parking spaces? IV. Whether the Circuit Court's attorneys' fees can be upheld? award of

We hold that the Agreement prohibits the construction of a garden shed such as the structure at issue. We also conclude that,

under the extant circumstances, a mandatory injunction may issue to 6

prevent violations of the restrictive covenant Agreement without a corresponding explicit showing of irreparable harm. We also see no error in the circuit court's holding with respect to the additional parking; this issue is precluded by this Court's decision in Blakehurst I. In view of our holdings on these issues, we uphold

the circuit court's awards of attorneys' fees. Therefore, we shall affirm the circuit court in all respects. I. At the outset, we shall briefly consider our jurisdiction over this appeal, a matter which we may address ex mero motu, because the unique circumstances of this case prompt us to consider whether the parties are bound to exhaust available administrative remedies. See Moats v. City of Hagerstown, 324 Md. 519, 525-26, 597 A.2d 972, 975 (1991). We address this, because while parties could seek the

assistance of a court in equity to enforce contracts, particularly restrictive covenants, see, e.g., Eisenstadt v. Barron, 252 Md. 358, 250 A.2d 85 (1969), the restrictive covenant Agreement in this case has also been incorporated into an order of the Baltimore County Board of Appeals, and "became enforceable by the Board." Blakehurst I, 146 Md. App. at 520, 807 A.2d at 186. The threshold

question thus becomes whether the Agreement's status as a Board of Appeals order requires the parties to exhaust administrative

remedies prior to seeking recourse in the courts. In Josephson v. City of Annapolis, 353 Md. 667, 728 A.2d 690 7

(1999), the Court of Appeals reiterated the "general rule": [W]hen administrative remedies exist . . . they must be exhausted before other actions, including requests for declaratory judgments, mandamus and injunctive relief, may be brought. 353 Md. at 681, 728 A.2d at 696. See also Moose v. Fraternal Order

of Police, 369 Md. 476, 487, 800 A.2d 790, 797 (2002); Montgomery County v. Broadcast Equities, Inc., 360 Md. 438, 452, 758 A.2d 995, 1003 (2000); Young v. Anne Arundel County, 146 Md. App. 526, ___, 807 A.2d 651, 669 (2002). The prudential exhaustion concern doctrine that a is grounded, must in part, the in the

court

allow

executive's

jurisdiction in the first instance over a controversy within the executive's expertise. See State Retirement and Pension System v. The the

Thompson, 368 Md. 53, 65-66, 792 A.2d 277, 284-85 (2002). doctrine of "primary jurisdiction," which "coordinate[s]

allocation of functions between courts and administrative bodies[,] . . . is predicated upon policies Park and of judicial restraint[.]" Commission v.

Maryland-National

Capital

Planning

Washington National Arena, 282 Md. 588, 601, 386 A.2d 1216, 1225-26 (1978) (citations omitted). But the remedy sought here by the Advisory Board, a mandatory injunction, is purely equitable in nature, and a preeminently judicial function that is not within the expertise of zoning administrators or the Board of Appeals. Appellees have invoked the 8

equity power of the courts to return the Blakehurst property to its status quo ante, to wit: the removal of structures that exist in direct contravention of the may restrictive exercise covenants. Although

administrative

bodies

certain

quasi-judicial

functions, for example, rendering findings of fact and making conclusions of law to decide disputes between parties, see, e.g., Department of Natural Resources v. Linchester Sand & Gravel Corp., 274 Md. 211, 219-21, 334 A.2d 514, 520-21 (1975), the remedy effected sub judice

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