Subdivision denied access via lot

Developer sought road in existing development

January 03, 2003|By Liz F. Kay and Jamie Smith Hopkins | Liz F. Kay and Jamie Smith Hopkins,SUN STAFF

In a decision that appears to buttress existing homeowners' rights as developers continue to subdivide in Howard County and other suburbs, the Court of Special Appeals has ruled that a developer could not use a covenanted lot in an existing development to provide access to a new subdivision.

The ruling "recognizes both the importance of residential restrictions on property and also recognizes the Circuit Court has the power to enforce covenants," said James M. Connolly, attorney for residents of Beaufort Park, a community off Reservoir Road in Fulton.

The court issued its ruling this week.

The covenant governing Beaufort Park prohibits use of lots for anything other than residential purposes.

After purchasing one lot on Beaufort Park's Penelope Court in 1989, however, Namleb Corp. submitted plans to subdivide it and an adjacent parcel, which together measure more than 20 acres, into lots for nine houses, called Beaufort Estates.

Namleb sold the existing house on Penelope Court but retained a portion of the land for "pipe-stem" driveways to provide access for six of the lots. The remaining two lots are on Hooper Court, Sturtz said.

Residents objected, however.

"We've got a pretty quiet neighborhood here," said Patrick Garrett, who lives on Penelope Court. "The idea that someone could create a throughway to another subdivision through an existing cul-de-sac really scared us and scared other people in the county."

Garrett and other residents sued Namleb in Circuit Court, stating that the road was not for the residential use of the house on Penelope Court but for the commercial development of Beaufort Estates. The court issued a permanent injunction on construction of the driveway in 2001, and Namleb appealed the decision.

Lawyers for Namleb argued that an access road on the lot would have a residential purpose allowed under the covenant. Previous court decisions about residential covenants, however, are "split in their view as to whether the use is limited to serving the property in question," the ruling states.

Namleb also argued that the corporation was entitled to an easement because without the access, several lots would be landlocked. The Court of Special Appeals ruled that the Circuit Court could place the permanent injunction because the property was not landlocked originally.

Covenants give homeowners some control over what happens in their neighborhoods, but residents must enforce the rules - the county government will not.

Most Howard County subdivisions from the 1960s onward were built with covenants, although some had a limited lifetime or would expire if residents did not renew them, said Joseph W. Rutter Jr., the county's planning director.

He knows of other cases where infill development was stymied by covenants, but he doubts these neighborhood rules will play a large role in the future - even as an increasing portion of Howard's new homes are being built in or around older subdivisions.

"I think [with] most of the parcels, there will be some way to access the property without going through a subdivision with covenants," Rutter said.

The owners have not started building in the proposed Beaufort Estates' subdivision, which would consist of lots of at least 3 acres each, said Matthew S. Sturtz, attorney for the appellants, Namleb Corp. et. al.

They have not yet decided whether to appeal the decision, but are considering other options to build on the land, he said.

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