Monday, November 25, 2013

Maryland appellate court okays Johns Hopkins' development plans for smart growth advocate's farm donated to university

A Maryland appellate court held last week that Johns Hopkins University could develop land donated to it by one of Montgomery County, Maryland's most outspoken smart growth advocates who thought her farm was going to be maintained by the university as a reserve.  The case came down to one of contract interpretation rather than land use law per se, but it is a cautionary tale in this age of private land conservation.

Detailed history of the case here.

Local coverage here and here.

The court clearly had a hard time reckoning what the agreement said with what was obviously otherwise the desire of Elizabeth Banks, one of the county's leading smart growth advocates in a county renowned for its smart growth policies.  From the case's preamble:

This case has generated a lot of publicity and emotion, and understandably so. Elizabeth Banks was renowned, even revered, for her opposition to development in Montgomery County. Ms. Banks had owned and lived on property known for more than a century as the Belward Farm (the “Farm”), and she undoubtedly had a vision of how The Johns Hopkins University (“Hopkins”) could, and would, steward her beloved family land after she and her siblings conveyed the Farm to Hopkins in 1989. Her heirs and surviving family (the “Family”) argued in the Circuit Court for Montgomery County, and argue here, that Ms. Banks would not approve Hopkins's current plans to develop the Farm, and Hopkins does not contend otherwise.
But whether Ms. Banks would approve Hopkins's current plans is not the question before us. Instead, this case turns on the terms of a contract and deed that the parties executed nearly twenty-five years ago. The Family does not dispute the validity of the conveyance, or that Hopkins emerged from the transaction with the right to develop the Farm for “agricultural, academic, research and development, delivery of health and medical care and services, or related purposes,” or that the proposed “ ‘mixed-use’ research park that ‘brings together university, government and private research’ “ would use the Farm entirely for those allowed purposes. The Family argued below, and argues here, that the scale, density, and lessor/lessee structure of Hopkins's current plans violate the terms of the parties' agreement, and that the circuit court erred in finding their contract not to be ambiguous, and in declining to consider extrinsic evidence of the parties' (particularly Ms. Banks's) intentions and visions when defining Hopkins's rights to develop the Farm, and thus in granting summary judgment for Hopkins.
We understand the Family's frustration as they face the increasingly likely prospect that the Farm will transform into a campus that they believe Ms. Banks would never have countenanced. But although the Family may now regret that Ms. Banks and her siblings conveyed the Farm to Hopkins, or at least that they did not negotiate different terms, we agree with the circuit court that the operative contract frames Hopkins's development rights solely and unambiguously in terms of permissible uses. Unlike hindsight, foresight is not 20/20, and whether anyone specifically envisioned the proposed development, the contract permits it. We affirm the judgment of the circuit court.
Newell v. Johns Hopkins Univ., 1861 SEPT.TERM 2012, 2013 WL 6097561 (Md. Ct. Spec. App. Nov. 21, 2013).  Ouch.  The case is likely to go up to Maryland's highest court.
Full reported decision here
Stephen R. Miller

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