Relating to Real Estate

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To Pave or Not to Pave, That is the Question

In Falls Road Community Association v. Baltimore County, No. 1652, Sept. Term 2016, 2018 WL 2128682 (Md. Ct. Spec. App. May 9, 2018), we return to the long-running saga of the paving of the parking lot at the Oregon Grille Restaurant in Baltimore County. This is the fourth appellate decision in the nearly 10 year litigation history of the case.

In the March 2016 issue of Relating to Real Estate we wrote about the January 2016 decision of the Court of Special Appeals, Oregon, LLC v. Falls Road Community Association, No. 1234, Sept. Term, 2014, 2018 WL 382968 (Md. Ct. Spec. App. Jan. 29, 2016) (“Falls Road III”). Falls Road III vacated an injunction from the Circuit Court for Baltimore County.

As background, Oregon, LLC, the owner of the restaurant (“Oregon”), leased the property from Baltimore County in 1985, and, in 1995, Oregon received approval from Baltimore County’s Board of Appeals to expand the size of the parking lot. The Board of Appeals subjected its approval to several conditions, including a requirement that the parking lot be surfaced with crushed stone or a similar material. In 2004, the Board of Appeals reiterated the parking lot surface requirements. In 2006, Baltimore County resurfaced the parking lot with bituminous asphalt paving, and it also paved 44 additional parking spaces. The County required Oregon to reimburse it for the cost of the repaving.

Following the repaving, Falls Road Community Association ("Association") filed an action in the Circuit Court for Baltimore County against Oregon and Baltimore County which sought a declaratory judgment that the repaving violated the Board of Appeals’ orders and that those orders were enforceable. The Association also sought an injunction requiring removal of the bituminous asphalt paving. In response, the circuit court held that the issuance of a declaratory judgment and an injunction were not authorized. On appeal, the Court of Special Appeals affirmed. However, the Court of Appeals issued a writ of certiorari and held that a declaratory judgment issued in conjunction with an injunction could properly resolve the legal question. The Court remanded the case to the circuit court.

Subsequently, the circuit court issued a declaratory judgment stating that the repaving of The Oregon Grille’s parking lot violated the Board of Appeals’ orders, and the circuit court issued an injunction ordering Baltimore County to “remove the paved parking lot … no later than July 1, 2016.” The circuit court also found that Baltimore County was responsible for violating the Board of Appeals’ orders.

Because the circuit court’s injunction did not specify which entity would be financially responsible for removing the repaving and any work to be done thereafter, and because Baltimore County demanded that Oregon pay the costs of the 2006 repaving, Oregon filed a motion with the circuit court seeking an order that would hold Baltimore County responsible for removing the paved parking lot and paying the costs of the removal. After the circuit court denied Oregon’s request to amend the court’s ruling, Oregon appealed to the Court of Special Appeals in Falls Road III.

In Falls Road III, the Court of Special Appeals agreed with Oregon that the circuit court’s ruling was not specific enough to make clear what was expected of Oregon or Baltimore County under the court’s order. The Court of Special Appeals remanded the case to the circuit court for the circuit court to alter its order and clarify the obligations of Oregon and Baltimore County.

On remand, the circuit court held that (1) the Association had the burden of production and persuasion because it was the party that moved for an injunction; (2) the paving that was placed outside of the subject property was to be removed at Oregon’s expense, (3) that a portion of the 1995 decision of the Board of Appeals was ambiguous as it related to the composition of the paving, and (4) that the trial judge was in equipoise about removing or repaving the rest of the lot – and so the circuit court denied the Association’s motion on that point.

In the present case, the Court of Special Appeals affirmed the judgment of the circuit court. The court ended its opinion by expressing its hope that this latest decision would finally end the extended litigation.

For questions, please contact Ed Levin at (410) 576-1900.

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Date

06.12.18

Type

Publications

Authors

Levin, Edward J.

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