Falls Rd. Cmty. Ass'n v. Balt. Cnty.

FALLS ROAD COMMUNITY ASSOCIATION v. BALTIMORE COUNTY, MARYLAND, ET AL.

No. 1652

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2016

May 9, 2018

Circuit Court for Baltimore County

Case No. 03-C-08-008443

UNREPORTED

Wright, Kehoe, Berger, JJ.

Opinion by Kehoe, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. See Md. Rule 1-104.

The Falls Road Community Association and Dennis Sutton (collectively, the "Association") appeal from a judgment of the Circuit Court for Baltimore County, the Honorable Susan Souder presiding, that entered a permanent injunction against Oregon, LLC ("Oregon"), requiring it to remove a portion of the existing parking lot at the Oregon Grille Restaurant in Hunt Valley. The appellees are Oregon and Baltimore County, which is the owner of the land subject to the injunction.

Background

This is the fourth time that this case has come before an appellate court. The previous instances were: Falls Road Community Association v. Baltimore County, 203 Md. App. 425 (2012) (Falls Road I); Falls Road Community Association, Inc. v. Baltimore County, 437 Md. 115 (2014) (Falls Road II); and Oregon, LLC v. Falls Road Community Association, 1234 Sept. Term 2014, 2016 WL 382968 (filed January 29, 2016) (Falls Road III).

In Falls Road II, the Court of Appeals set out the long and tangled history of the administrative proceedings that gave rise to this action. 437 Md. at 121-134. For our purposes, the Court's narrative can be summarized as follows:

We are concerned about a 2.63 acre parcel (the "Property") that is located adjacent to the Oregon Ridge Nature Center, a County park and open space area consisting of about 1,200 acres. The County has owned the Property for many years and, until the 1990s, itwas the location of a country store. Oregon acquired the leasehold interest in 1985 and, in the mid-1990s, sought permission from the County to operate a restaurant on the Property. As part of this process, Oregon also sought zoning permission to expand the existing parking lot.

In 1994, Oregon entered into a covenant with the Valleys Planning Council, another community association opposing its application, that "the parking area at the restaurant would remain a non-paved surface such as crushed stone, 'unless otherwise required by law.'" The Falls Road Community Association was not a party to this agreement. 437 Md. at 124-25 n.8.¹

In 1995, the Baltimore County Board of Appeals approved the expansion with several conditions, including one that "[t]he parking area shall consist of a non-paved surface such as stone or a similar permeable surface unless otherwise required by law. All parking will be contained within the leased area." Oregon and the County apparently interpreted the phrase "stone or a similar permeable surface" to include crushed stone, and the expanded parking lot was finished with that substance.

In 2002, Oregon sought permission from the County to change the surface of the parking lot from crushed stone to bituminous asphalt. This matter eventually reached the Board of Appeals, which, in a 2004 order, denied Oregon's request. Seeking permissionhaving failed, Oregon and the County evidently decided to try their hands at begging forgiveness. In 2006, a contractor "well known to County officials whose bill was paid by Oregon" not only paved the existing parking lot with asphalt but also expanded the size of the lot by 44 parking spaces. Id. at 126. Some or all of the additional spaces are not located on the Property, but rather on adjacent land owned by the County.

This brings us to the present litigation. In August, 2008, the Association filed this action in the Circuit Court for Baltimore County against Oregon and the County seeking, among other forms of relief: (1) a writ of administrative mandamus to require the County to initiate an enforcement action against Oregon to remove the asphalt pavement and restore the parking lot to its previous condition; (2) an injunction requiring Oregon to do the same; and (3) a declaratory judgment that (a) the asphalt pavement violated the administrative orders issued by the Board of Appeals; and (b) the Board of Appeals' order that the parking lot consist of an unpaved permeable surface was fully enforceable.

The trial court found that the asphalt paving violated the Board of Appeals' administrative orders, but concluded that issuing a declaratory judgment to that effect would not resolve the controversy. The court declined to grant a writ of mandamus or injunctive relief.²

The Association appealed, and this Court affirmed the judgment. Falls Road I, 203 Md. App. at 452. The Court of Appeals granted the Association's petition for certiorari and, ultimately, affirmed the trial court's judgment on the issue of administrative mandamus, but reversed and remanded the case on the issue of the declaratory and injunctive relief.

The Court of Appeals concluded that in addition to issuing a declaratory judgment, the trial court was authorized to grant "further relief 'if necessary or proper.'" Falls Road II, 437 Md. at 146. The Court noted that, while the controversy between the parties may not be resolvable through a declaratory judgment alone, the controversy might be resolved through a declaratory judgment that included appropriate ancillary relief. Id. at 151. Accordingly, the Court reversed and remanded the case to the trial court.

On remand, the trial court issued a declaratory judgment stating: "the November 2006 paving of the parking lot at the Oregon Grille violated the Board of Appeals' February 8, 1995 order that the parking lot remain a 'non-paved surface.'" Additionally, the court ordered the County to "remove the paved parking lot from its property at the Oregon Grille no later than July 1, 2016." The trial court also concluded that responsibility for requiring the 2006 repaving lay entirely with the County.

Oregon appealed. In Falls Road III, a panel of this Court summarized Oregon's contentions and its resolution of them:

The injunction is defective . . . because it provides inadequate detail on the parties' respective responsibilities for returning the parking lot to a useable condition after the paving is removed, or which parties are fiscally responsiblefor the removal and replacement of the parking surface. Oregon also suggests that both its and the County's interests would be better served by an injunction that provides greater detail on each party's specific responsibilities for returning the parking lot to a state that complies with the Board of Appeals' orders.

* * *

It is clear to us, and we so hold, that any injunction directed to the County to remove the parking lot must also address the condition of the property after the County has performed its court-ordered obligations.

* * *

Oregon's concerns can be encapsulated into two broad categories: a) the condition in which the County will leave the parking lot after it has removed the paving, and b) whether the County will charge Oregon for the expense of removing and resurfacing the parking lot.

[W]e believe equity is best served by both the County and Oregon knowing before the paving is removed what their respective responsibilities will be in resurfacing the parking lot. Oregon's second concern is grounded in the record and is thus not speculative. . . .

IV. Conclusion

No party has challenged any part of the circuit court's declaratory judgment except for the ancillary injunctive relief ordered by the court. Therefore, we affirm the judgment except for the injunction. Turning to the injunction, no party challenges the court's order that the County remove the parking lot. But, as we have explained, the terms of the injunction are incomplete. Therefore, we vacate the injunction and remand the case to the circuit court for further proceedings consistent with this opinion.

2016 WL 382968, at *3-5 (bold emphasis in original; italicized emphasis added).

The mandate in Falls Road III stated:

THE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY IS AFFIRMED IN PART AND VACATED IN PART. THIS CASE IS REMANDED TO THE CIRCUIT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE DIVIDED BETWEEN OREGON, LLC AND THE FALLS ROAD COMMUNITY ASSOCIATION.

Id. at *5.

During this second remand, the trial court decided that (1) the Association bore the burden of production and persuasion because it was the party that sought injunctive relief; (2) the portion of the parking area that was not located on the Property (about 4,700 square feet) was to be removed at Oregon's expense; (3) the part of the 1995 decision of the Board of Appeals requiring that "[t]he parking area shall consist of a non-paved surface such as stone or a similar permeable surface" was ambiguous; and (4) after considering evidence regarding various options for removal or replacement of the asphalt parking lot, the trial court was in "equipoise" regarding removal or repaving of the remainder of the parking lot. Consistent with its reasoning, the trial court entered an injunction requiring Oregon to remove the 4,700 square foot portion of the parking lot at its expense and denied all other relief.

The Association has appealed and presents four issues, which we have rephrased and reordered for purposes of analysis:

1. Did the trial court err by conducting the trial in a manner that exceeded the scope of this Court's remand?

2. Did the trial court err in finding, for the first time, that the Board of Appeals' 1995 order is ambiguous?

3. Did the trial court err by assigning the burdens of production and persuasion to the Association?

4. Did the trial court err in finding a state of evidential equipoise and failing to find evidence to rule on the remand issues?

We find no error by the trial court, and therefore will affirm its judgment.

The Standard of Review An...