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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 824 September Term, 2008 _______________________________________

DUMBARTON IMPROVEMENT ASSOCIATION, INC., et al. v. DRUID RIDGE CEMETERY COMPANY, et al.

Meredith, Woodward, Moylan, Charles E., Jr. (Retired, specially assigned), JJ.

Opinion by Meredith, J.

Filed: September 29, 2010

The Druid Ridge Cemetery is located in Baltimore County in Pikesville, Maryland, on an approximately 200-acre parcel of real property between Reisterstown Road and Park Heights Avenue, north of Old Court Road. The impetus for the current litigation was the plan of the owner-operator of the cemetery to sell a developer 36 acres to be used for construction of 56 semi-detached dwellings. A number of neighboring property owners joined with several persons who had purchased burial rights in the cemetery, asking the Circuit Court for Baltimore County to issue a declaratory decree that the cemetery property could be used solely for cemetery purposes.1 The circuit court concluded: (1) that the restrictive covenant in the 1913 deed for the cemetery does not preclude the proposed sale of 36 acres for residential development; and (2) even if the scope of the restrictive covenant had originally been intended to prevent the proposed development, there has been such a radical change in the vicinity since 1913 that the restriction is no longer enforceable as to the proposed sale of the isolated 36 acres that are the subject of this suit.

The appellants are the plaintiffs who filed the complaint: Doris Miller, owner of a crypt and burial lots in the cemetery; Albert and Janet Nahum, owners of a crypt; Henry and Babette Gutman, owners of a burial lot; Sharon Rosen, owner of neighborhood property; Howard and Alice Moffet, owners of neighborhood property; the Dumbarton Improvement Association, Inc., a community association representing a neighboring community; and the Long Meadow Association, Inc., a community association representing neighboring property owners. The appellees are the defendants named in the complaint: Druid Ridge Cemetery Company, the corporation that has owned and operated the Druid Ridge Cemetery since purchasing the property in March 1913; Stewart Enterprises, Inc., a corporation that owns the Druid Ridge Cemetery Company; and Druid Ridge, L.L.P., the contract purchaser of 36 acres land from Druid Ridge Cemetery Company.

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The opponents of the sale argue in this appeal that the circuit court erred in its construction of the restrictive covenant and in concluding that the restriction should be limited due to changed circumstances. We perceive no error, however, in either of the circuit court's conclusions. Because either conclusion would provide an adequate basis for upholding the judgment of the circuit court, we shall affirm. Background When the Druid Ridge Cemetery held its opening ceremonies in 1898, its planners were praised for ushering in a new era in cemetery design, one in which the grounds were laid out like a park. The original owners and developers of the cemetery ran into financial difficulties, however, and in 1910, creditors forced insolvency proceedings that ultimately led to a court-ordered sale of the cemetery real estate to the current owner of record, Druid Ridge Cemetery Company. The 1913 deed to Druid Ridge Cemetery Company contains restrictive language that is the source of the argument against the currently proposed sale of a portion of the land. In the deed, the grantee covenants and agrees: "That the said property be maintained and operated as a cemetery." After reviewing the extensive evidence that was presented in this case relative to events leading up to the 1913 deed, the trial judge, Judge Kathleen Gallogly Cox, recounted the history of the Druid Ridge Cemetery in a written opinion that we will quote at length as follows (omitting citations to trial exhibits):

The origins of the Cemetery date back to the late 1800s when Charles Tyler entered into an Agreement dated January 14, 1896 with the Druid Ridge
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Cemetery of Baltimore County for the sale of a portion of his land. As part of that Agreement, the parties covenanted: That the said lands, or such parts thereof as may from time to time be required for Cemetery purposes, shall be surveyed and sub-divided into lots or plats of suitable size for burial and ornamental purposes, with such Avenues, paths, alleys and walks as may be proper and that when so surveyed and subdivided the use of said lots and plats shall be sold and conveyed. . . . Pursuant to this Agreement, 10,000 shares were to [be] issued, with Charles Tyler retaining 7,000 of those shares. The Agreement was binding upon the parties and their successors and assigns. However it also reserved the right of the parties to alter or amend its provisions by a two-thirds vote. On May 23, 1897, the Deed contemplated by the Agreement was executed to convey approximately 200 acres of the Tyler land from Charles Tyler to the Druid Ridge Cemetery Company of Baltimore County. The recitals in that Deed state: To Have and To Hold the tract or parcel of land and premises above described and mentioned, and hereby intended to be conveyed, together with the rights privileges, appurtenances and advantages thereto belonging or appertaining unto the proper use and benefit of the said "Druid Ridge Cemetery of Baltimore County," its successors and assigns in fee simple. This 1897 Deed contains no restriction on the use of the Property, and it contains no reference to any intent to create a cemetery. The Cemetery was dedicated on June 11, 1898, and it was hailed as "one of the handsomest burial places in the State of Maryland." As stated in the dedication ceremony, "Druid Ridge Cemetery marks a new era in resting places of the dead, and is to be conducted on a new principle. It is to be a departure from old methods to the newer, more cheerful, broader and at the same time more perfect method of disposing of departed friends." Legislation was enacted in 1900 to permit the use of this large tract of land for a cemetery. Pursuant to the legislation, Druid Ridge Cemetery of
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Baltimore County was empowered to "purchase, hold or use for the purpose of burial two hundred acres of land in said County, and to perpetuate its charter." However celebrated the dedication and initial operation may have been, the financial aspects of the business quickly deteriorated. A receivership action was filed on October 19, 1910. As reflected throughout the documents that remain from those proceedings, the receivership was complicated by the need to balance the concerns of interred parties and of plot holders with the rights of the business, its investors, and its creditors. As recommended in the May 1, 1911 Report of the Receivers: Your Receivers further recommend that this Honorable Court in any decree for the sale of the property will be justified in requiring that the purchaser not only continue the Cemetery but to provide in some reasonable way for the perpetual care of lots already sold. This requirement would be reasonable we submit, because the property is more valuable for Cemetery purposes than any other at the present time with the Cemetery well established; and the perpetual care of the lots already sold will be an insignificant item, and a necessary requirement in order to give the Cemetery a reasonable neat and clean appearance. Given the competing interests and demands, the Court scheduled a hearing on the receivership. Testimony reflected that by 1911 approximately 11 acres of the parcel were used for cemetery plots, with approximately 60 to 65 acres of lawn. Another 40 acres of the parcel was used actively as farmland. Approximately 12 to 13 acres adjacent to Park Heights Avenue, known as the Park Hill Plot, remained wooded. Thus a relatively small percentage of the land was used for burial purposes. Following the proceedings, the Honorable Frank I. Duncan issued an Opinion and stated: It is seldom that a case comes before the Courts involving more conflicting interests or presenting a more complicated situation than the case at bar and for the reason that the Defendant corporation has its origin in a most novel (and in Maryland) most unusual contract, i.e., the contract of the Cemetery

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Company with Tyler, the owner of the land to be used for cemetery purposes. *** My judgment therefore is that the land of the corporations consisting of about 200 acres, more or less, and all personal property should by the Receivers be sold as and for a cemetery upon such terms as the Receivers in their discretion shall deem most advantageous . . . except that the purchaser will be required to set apart and invest out of the purchase price the sum of $40,000 to provide for the perpetual care of the lots already sold and to covenant to set apart a sufficient sum from lots by the purchaser thereafter sold to invest for the permanent maintenance thereof. The ensuing Order dated March 21, 1912, reflected this provision. The Receivers then petitioned the Court to modify the language of the decree in order to promote the appropriate disposition of the property. As the Receivers stated: "Criticism has been made that it will not be necessary or desirable to use the whole 189 acres as a cemetery, but that a considerable part of it can be much better used for other purposes, without injury to the Cemetery property." Therefore the Receivers requested the Court to modify the provisions of its Order. In response, on April 19, 1912, the Court struck from its Order the requirement that the property be maintained and operated as a cemetery and the provision requiring investment of certain portions of the proceeds from lot sales for perpetual care of the lots. The Court "reserv[ed] for future determination the question of how much, if any, of said property shall be required to be maintained as a Cemetery and also what portion, if any of the proceeds of lots hereafter sold must be invested for the perpetual maintenance and care of said lots." In the meantime, the Receivers had advertised the property for sale, subject to the provisions of the original Court Order. The Report of Sale of the Property to the Druid Ridge Cemetery Company describes the land as follows: The property conveyed by said deed of January 14, 1896, comprises 200 acres, through which about 2

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