Bowie v. MIE

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City of Bo wie, Ma ryland v. M IE, Inc., et al., No. 57, Sept. Term 2006. REAL PROPERTY - RESTRICTIVE COVE NANTS - THE STANDARD FOR DETERMINING IF A RESTR ICTIVE C OVEN ANT R EMA INS VA LID IS WHETHER, AFTER THE PASSAGE OF A REASONABLE A MOUNT OF T IME, A CHAN GE IN CIRCUMSTANCES HAS OCCURRED, SINCE THE COVENANTS EXECUTION, RENDERING THE PURPOSE OF THE COVENANT OBSOLETE. REAL PROPERTY - RESTRICTIVE COVENANTS - WAIVER - THE ASSERTING PARTY BEARS THE BURDEN OF PROVING WAIVER BY ACQUIESCENCE DEFENSE. ZONING - A MUNICIPALIT Y WITHOUT ZONING AUTHORITY DOES NOT ENGAGE IN ILLEGA L CON TRAC T ZON ING W HEN IT ASSERTS LIMITATIONS ON THE USE OF LAND BASE D ON A RES TRICTIVE COVENANT IT HAS THE RIGHT TO ENFORCE. CIVIL PROCEDURE - FAILURE TO JOIN NECESSARY PARTIES - THE NONJOINDER OF AN ASSERTEDLY NECESSARY PARTY MA Y BE EXCUSED WHEN THAT PARTY FAILS TO JOIN THE LITIGATION AS A PARTY DESPITE ITS KNOWLEDGE OF THE LAWSUIT POT ENTIALLY AFFECTING ITS INTERESTS, VERIFIED BY THE FACT THAT THE PARTY TESTIFIES AT TRIAL. Circuit Co urt for Prince George s County Case # CAE02-25274 IN THE COURT OF APPEALS OF MARYLAND No. 57 September Term, 2006 CITY OF BOWIE, MARYLAND v. MIE P ROPE RTIES , INC., et al. Bell, C.J. Raker Cathell Harrell Battaglia Greene Wilner, A lan M. (R etired, specially assigned), JJ. Opinion by Harrell, J. Filed: May 4, 2007 We concern ourselves h ere with the standard fo r determining a challenge to the continuing vitality of restrictive covenants on real property. This case involves a set of restrictive covenan ts, recorded in 1986, encumbering originally a 466 acre parcel of land ( the Property ) in Prince George s County. The current parties to the cove nants are the City of Bowie, Maryland ( the City ), an original covenantee, and MIE, Inc. ( MIE ), a successor covenantor and current owner of the remainder of the Pro perty. MIE s predecess or in title agreed with the City to a Declaration of Covenants ( the Covenants ) which limits the development of the Property to 14 permissible uses. Contem poraneo us with en tering into the Covenants, an Annexation Agreement ( the Agreement ) also was executed with the City, bringing the affected parcel, then undeveloped, w ithin the City s corporate limits. The Agreement contemplated the development of a science and technology, research and office park on the Property, hopefully with the support of the University of Maryland. MIE challenges the continuing vitality of the Covenants, principally on the basis that changes in circumstances since the recording of the Covenants obviates the purpose for the Covenants. The City counters that the Property ma y be, and is being, developed in a ccord with the Covenants. The Circuit Court for Prince George s County upheld the continuing validity of the Covenants. The Court of Special Appeals, however, reversed the judgment of the trial court, concluding that the trial judge applied the wrong standard for determining the ongoing validity of restrictive covenants. We shall reverse the judgment of the intermediate appellate court and remand with directio ns to affirm the judgm ent of the C ircuit Court. I. FACTS Although the record reveals considerable dispute between the parties as to the purpose of the C ovenants impose d on the P rope rty, there is little controvers y regarding the generic formative history of the Covenants. App roximately tw enty years ago, the c orporate lim its of the City were expande d as a result of the annexation1 of the Property, located in the northeast quadrant of the intersection of U.S. Route 50 and Maryland Route 3 /U.S. Rou te 301 in Prince George s Co unty. The annexation process was initiated in 1985 by the application of the then -owners of the Pro perty, Carley Cap ital Group a nd the U niversity of Maryland Foundation, Inc. ( the Developers ). An Annexation Agreement was executed on 19 August 1985 between the Developers and the City and recorded in the land records of Prince George s County on 16 January 1986.2 In consideration for the annexation of the Prop erty, the City agreed to extend roadways, water and storm water management, and other public facilities to the P roperty at a cost of $1 million to the City and $3 million worth of Tax Increment Financing bonds to b e recoupe d by the City throu gh a spec ial taxing district planned for the Property. The Agreement obligated the Developers to develop, and the City to fully support[] the development of, the Prop erty as a sc ienc e and tech nolo gy, 1 The City was author ized to a nnex th e Prop erty. See Md. Code (1957, 1981 Repl. Vol., 1984 Cum. Supp.), Article 23A, § 19. 2 In accordance with the requirements of Article 23A, § 19, the Agreement was ratified by resolution of the Bowie City Council on 30 September 1985, which became effective on 14 November 1985. For a discussion of the annexation process generally, see Mayor & Town Counc il of Oaklan d v. May or & Tow n Coun cil of Mou ntain Lake Park, 392 Md. 301, 896 A.2d 10 36 (2006). 2 research and office park. The Agreement referred generally to the Developers current intention to improve the Property and to sell portions thereof for mixed use commercial development . . . to be known as the University of Maryland Science and Technology Center (although the [Developers] may change such name as it from time to time deems approp riate) . . . . On 19 Decem ber 1985 , the Deve lopers exec uted the C ovenants in fa vor o f the City, establishing a list of per mitte d use s for the P rope rty. 3 The Covenants provided, in relevant part: Uses permitted on the property shall be the following and no other: 1) Office buildings for science, technology, research and related issues; 2) Accessory buildings and uses, such as offices, laboratories, off-street parking, enclosed storage areas, conveyor systems, towers, and signs to serve a principal permitted use; 3) administrative, executive and research facilities, including the following, subject to the provisions of Section 27-331 of the Prince George s County Code: [4] 3 The Co venants also were attached as an exhibit and made a p art of the A greemen t. The Agreement provided in Recital D.3(b) an enumeration of permitted u ses of the P roperty mirroring th e restrictions se t forth in the Covenants. By the terms of the Agreement, these enumerated uses were to control notwithstanding that under the existing zoning for the Prope rty (E-I-A Zone ), certain manu facturin g uses a re perm itted . . . . 4 The City exercises no planning and zoning powers. With the exception of the City of Laurel, no mun icipality in Prince G eorge s C ounty possesses planning and zoning powers. See infra note 23 . The County zones and otherwise regulates land use through the governmental powers of zoning and planning. Hence, the City apparently sought to fashion a role for itself in the land use arena through the vehicle of the Covenants. Of course, (contin ued...) 3 4) 5) 6) 7) 8) 9) (i) banks, savings and loans associations, or other savings and/or lending establishments; (ii) business and professional offices; (iii) communications offices (e.g., telephone, telegraph, and the like); (iv) data processing (v) public utility offices; and (vi) research, development and testing laboratories, including testing facilities and equipme nt, and the manufacture and/or fabrication of the same incidental to such research and deve lopment; convenience comme rcial establishments, including the following, to serve the principal users (and the employees thereof) on the Property, subject to the provisions of Section 27-331 of the Prince George[ ]s County Code: (i) barber and beauty shops; (ii) medical and dental clinics; (iii) commercial outlets engaged in the sale or display of items produced on the premises; (iv) eating and drinking establishments; (v) financial offices, such as banks or lending agencies, the principal services of which will be rendered to the surrou ndin g industria l establishments; and (vi) laundry and dry cleaning pick-up stations; bio-medical laboratories; hotels and mote ls, which m ay include con vention facilities and reducing/exercise salons and health clubs; institutional uses of an education al, medical, religious or research nature; technolo gical activities oriented to telecommunications products and systems, in cludin g satellit e communications; public and quasi-public uses of an educational or recreational nature; 4 (...continued) achi evin g this goa l required the willing c ooperati on of the own ers o f the Prop erty. 4 10) 11) 12) 13) 14) public utility buildings and lines; printing and publishing of newsletters, periodicals, and similar products and photostatting, blueprinting, or other photocopying establishments; medical and dental laboratories; radio and television broadcasting studios; and on an interim basis, agricultural uses, including farming, horticulture and similar uses. The Covenants were duly recorded in the land records of P rince George s C ounty in January 1986. It appears that the impetus for annexing the Property and the execution of the Coven ants was for th e Develo pers to gain the City s infrastructure and political support for the development o f a high-technology research park on the Property. As the Developers and the City originally conceived, the affiliation of the University of Maryland was viewed as a vital componen t to the hoped-for succe ss of the research park concept, as most such existing parks generally had some association with a research university as a means of attracting tenants. Unfortunately, the level of success expected for development of the Property did not materialize readily and, around 1999, the University of Maryland Foundation, Inc. completely extricated itself fro m the d evelop ment p roject fo r financ ial reaso ns. Carley Capital Group, the o ther develop er, co ntem pora neously filed f or ba nkru ptcy. 5 Owne rship of the Property changed several times since 1985;5 however, the terms of both instruments remained undisturbed in the main.6 Eventua lly, around 200 0, MIE a nd its related entities became the owners of the remaining portions of the Property and began developing part of it with 150,000 square feet of flex-space buildings to accom modate various tenants. In 20 01, MIE leased a po rtion of this sp ace to C&C Dance Studio ( the Dance Studio ), a use which the C ity contended was in violation o f the Covenan ts. MIE countered that the City previously had approved of the Dance Studio s tenancy, but reneged on that approval in retribution for MIE s refusal to construct a large, multi-story office building on the Pro perty requested by the City. The C ity commen ced this litigation to prevent the Dance Studio s further use of its leased space. II. PROCEDURAL HISTORY The City filed on 24 October 2002 a complaint i n the Circuit Court for Prince George s County seeking a declaration that the Dance Studio s use was in violation of the Agreement and Covenants and further requesting a permanent injunction against the 5 In June 1988, two entities, Marlborough C.L., Inc. and D3J Limited Partnership, assumed ownership of large portions of the Property from Carley Capital Group and the University of Maryland Foundation, Inc. Marlborough C.L., Inc. and D3J Limited Partnership assumed ownersh ip of these p arcels subject to the Agreement and the Covenants. During the time these en tities owned the Prope rty, they sold off sm all portions to others not identified in this record. 6 When Marlborough C.L., Inc. and D3J Limited P artnership as sumed th eir ownersh ip interests, the Agreement was amended to remove a term relating to Carley Capital Group s guarantee of special d istrict taxes and add a term further restrictin g the perm itted uses to which the Property mig ht be put. 6 continued use of the building spa ce by the Dance Stud io. After extensive discov ery, MIE filed on 26 November 2003 a counterclaim for a declaratory judgment that the Covenants and portions of the Agreement restricting the permitted uses of the Property were invalid and unenforceable. A bench trial was conducted over the course of three days beginning on 29 March 2004. The Circuit Court determined ultimately that the Covenants were valid and enforcea ble against MIE and that MIE had violated the Covenants by permitting the Dance Studio to use and occupy leased space on the Property, a use prohibited by the Covenants. Acc ordingly, the Circuit Court enjoined MIE from permitting the Dance Studio to use and occupy any space on the Property. MIE s counterclaim was denied. The Circuit Court reasoned that there had been no radical chan ge to the character of the neighbor hood [o f the Prop erty] so as to defeat the p urpose [] e mbodied in the Cove nants and the Annexation Agreement. The court was persuaded by the City s expert witness, Alfred Blumberg II, 7 that the mixed-use development and zonin g change s that occurre d in the area surrounding the Property since 1985 did not render the Covenants purposes meaningless, but rather facilitated them. Having found the Covenants valid, the court concluded that the Dance Studio was prohibited by the Covenants. The court credited Blumberg s testimon y, over that of MIE s exp ert, Thomas Kief fer, 8 that the Dance Studio, 7 Mr. Blumberg was offered and received as an expert in land planning. 8 Mr. Kieffer was offered and received as an expert in land planning. 7 a private for-p rofit use, wa s inconsisten t with the Covenants allowance for quasi-public and public educational uses. Further, the primary purpose of the Covenants - the developme nt of a science and research technology park - was found not to be dependent on the participation of the University of Maryland. Thus, the University s withdrawal from the project was not a deal breake r, vitiating the pu rpose of th e Coven ant. The court was persuaded by the testimony of the City s expert, Dr. Anirban Basu,9 on the issue of the Co venants co ntinuing vita lity after the Univers ity s w ithdraw al fro m the pro ject. Dr. B asu s test imony, when contrasted with that of MIE s comparable expert, Dr. Darius Iranni, persuaded the court of various factual inadequacies in Dr. Iranni s deposition testimony and a market analysis report prepared prior to his testim ony. In particular , the court w as troubled by the fact that D r. Iranni apparently did not consider the Agreement or Covenants in forming his opinion on the success of the science and research technology park project. A subseq uent report by Dr. Iranni addressing the change in circumstances evidently lacked a significant factual predicate for its conclu sion that t he U nive rsity s absence from the pr oject was f atal to its success or potential success. Mo reover, the court deemed persuasive the expert testimony of Dr. Stephen Fu ller, a professo r of public p olicy and econ omic dev elopmen t, who opined that the Covenants were not responsible for the failure of the project to advance as expected and that success was still attainable if only a proper marketing strategy were employed. 9 Dr. Basu was offered and received as an expert in real estate economics. 8 The Circuit Court also found that the City had not waived enforcement of the Covenants, even in view of its collateral extinguishment of the Covenants for two parcels of the Prope rty conveyed to th e federal g overnm ent. MIE filed a timely app eal to the Court of Special Appeals. It raised five questions for review,10 alleging primarily that the Circuit Court erred by finding the Coven ants valid and enforceable. Secondary argumen ts were tend ered based on non-jo inder of an essential party (the Dance Studio ), an assertedly unnecessary ruling on the Dance Studio s noncompliance with the underlying actual zoning classification of the Property, waiver by the City of the Covenants, and the City s equivalent of the improper exercise of zoning power (tantamount to illegal contract zoning). In an unreported opinion, the interm ediate appellate court disagreed with all of MIE s secondary arguments, but held that the Circuit Court s judgment 10 MIE p resented the following questions to the intermed iate appellate c ourt: 1. Whether the trial court erred in entering a declaratory judgement and permanent injunction that impair[s] the rights of a non-party, C&C Dance Studio[?] 2. Whether the trial court erred in ruling that the C&C Dance Studio violated the Prince George s County zoning ordinance[?] 3. Whether the trial court erred in finding that the co venants were enforceable[?] 4. Whether the trial court erred in finding that the City was not estopped from enforcing, or had not waived enforcement of, the covenants[?] 5. Whether the covenants should be deemed void as a violation of state law[?] 9 that the Covenants were valid and enforceable must be vacated and the case remanded for further proceedings. In those furth er proceed ings, the Circuit Court would revisit the question of the Coven ants validity vis-a-v is their purpose in light of a different standard than that applied originally by the Circuit Court. The Court of Special Appeals concluded that the continuing vitality of a restrictive covenant is determined by the reasonab le probab ility that the parties will be able to achieve the goals of the Covenants within a reasonable period of time. 11 (emphas is added). Therefore, the panel of the intermediate appellate tribunal opined that the Circuit Court incorrectly emphasized the theoretical p ossibility that the Maryland Science and Technology Center will be developed on the property as the standard for determining the validity of the Covenants. (emp hasis added). Thus, a remand was necessary to consider the facts under the correct legal standard. 11 Evid ently, the purpose of the Covenants, as viewed by the Court of Special Appeals, was that the Maryland Science and Technology Center [would] be developed on the proper ty. The court, however, did not state expressly whether it meant that the purpose was strictly to develop th e land in conjunction with the U niversity of Maryland, as MIE posits, or whether the purpose was broader in nature and directed more generally towards the development of a generic science and technology park, with or without the University s involvem ent, as the City asserts . Because the intermediate appellate court quoted exte nsiv ely, and did no t find clear erro r in, the Circu it Court s findings of fact, which determined that the purposes of both the Agreement and the Covenants were to have the Property developed as a science and techno logy center with ancillary uses. . . . [in which] [t]he University s participation was preferable . . . but was not a deal breaker, we conclude that the intermediate appellate court adopted the finding of the trial court as to the purpose of the Covenants. 10 The interm ediate appe llate court, with relative ease, disposed of the other questions raised by MIE. F irst, as to the City s fa ilure to join the Dance Studio as a named defendant to its action, the court opined that the non-joinder was not a ground for reversal because the Dance Studio w as aware sufficiently of th e litigation related to its interest in its leased space on the Prope rty, evidenced b y the fact that the o wner of the busines s testified at trial, effectively giving the Dance Studio its day in court. Second, the appellate court held that the trial court did not abuse its discretion in addressing the noncompliance of the Dance Studio s use with the underlying actual zoning classification of the Property assigned by the County because MIE s trial counsel essentially invited a ruling on that question during closing arguments. Third, although the appellate court wa s not persu aded that th e Circuit Court erred or abused its discretion in rejecting [MIE s] waiv er argu ment, it nevertheless directed that the Circuit Court reexamine the issue on remand in light of events elapsing since judgment was entered by the trial court. Finally, the court held that the City s enforcement of the Cove nants, by virtue o f the restrictions placed on the use of the Property, did not affr ont o r usu rp the zon ing a utho rity ve sted in Pr ince Geo rge s Co unty. The City petitioned us for a writ of certiorari on the question of whether the Court of Special Appea ls identified an incorrect standard for determining the continuing validity of the Covenants. MIE filed a Cond itional Cross-Petition requesting that we review the remaining issues decided against it by the Court of Special A ppeals. W e granted b oth petitions. 394 Md. 47 8, 906 A.2d 94 2 (2006). 11 III. STANDARD OF REVIEW We review the factual findings of the Circuit Court for clear error, observing due regard to the opportunity of the trial court to judge the credibility of th e witne sses. Maryland Rule 8-131(c). In addition, we must consider the evidence in the light most favorable to the prevailing p arty and decide not whether the trial judge s conclusions of fact were correct, but only whether they were su pported by a preponderance of th e evide nce. Colandrea v. Wilde Lake Cm ty. Ass n, 361 M d. 371, 393-94, 761 A.2d 899, 911 (2000) (quoting Urban Site Venture II Ltd. P ship v. Levering Assocs. Ltd. P ship, 340 Md. 223, 229-30, 665 A.2 d 1062, 1 065 (199 5)) (citations om itted); Murphy v. 24th St. Cadillac Corp., 353 Md. 480, 497, 727 A .2d 915, 923-24 (1 999); In re Adoption/Guardianship No. 3598, 347 Md. 295, 331, 701 A.2d 110, 128 (1997). Thus, we examine the Circuit Court s findings of fact in a light most favorable to the City for substantial evidence to confirm such findings. Review of the legal questions decided below is not so deferential. We examine de novo issues of law as decided based on the C ircuit Co urt s sus tainable finding s of fac t. In re Anthony W., 388 Md. 251, 260, 879 A.2d 717, 722 (2005); Ins. Co. of N. Am. v. Miller, 362 Md. 361, 372, 765 A.2d 587, 593 (2001) (citing Heat & Po wer C orp. v. A ir Prod s. & Chem. Inc., 320 Md. 584, 591, 578 A.2d 1202, 1205 (1990)). This is true of a court s interpretation of a contra ct, Myers v. Kayhoe, 391 Md. 188, 198, 892 A.2d 520, 526 (2006), of which a co venan t is a spec ies. Colandrea, 361 Md. at 395, 761 A.2d at 912 (cited by Burns v. Scottish Dev. Co., 141 Md. App. 67 9, 695-96 , 787 A.2d 786, 795 (2001)); Boyle v. 12 Peabody Heights Co., 46 Md. 623, 628 (1877). Thus, the interpretation of a restrictive covenant, including a determination of its continuing vitality, is subject to de novo review as a legal q uestion . See Chestnut Real Estate P ship v. Huber, 148 Md. App. 190, 201, 811 A.2d 389, 395 -96 (2002). We generally review the issuance of an injunction by a trial court for an abuse of discretio n. Colandrea, 361 Md. at 394, 761 A.2d at 911. IV. DISCUSSION The existence of the Co venants is not disputed. In pa rticular, MIE has not challenged the existence of the Covenants for want of a necessary legal element of a covenant that runs with the land.12 County Comm rs v. St. Charles Assocs. Ltd . P ship, 366 Md. 426, 454, 784 12 Although MIE obliquely calls into question the content and form of the Covenants, it has not mounted a full-fledged attack on the valid creation of the Co venants. MIE declares: The Covenants do not contain any of the provisio ns ordinarily found in a declaration of covenants. For example, the Coven ants contain no specified duration, no provisions for termination or renewal, and no mechanisms for enforcement or amendm ent. Indeed, other than recitals referring to the conditional annexation, the Cove nants consist of n othing bu t a portion of the then-existing Prince George s County zoning code limiting development within [the Property] to the [uses it enumerated]. Regardless of whe ther the Covenants are atypical for their species, MIE is incorrect on several allegations regarding a lleged def iciencies in the Covenants. The Covenants state that they shall run with the land perman ently or until terminated or modified by the parties by recording a termination or modification statement duly exe cuted b y all the pa rties. (emphasis added). Also, although the Covenants incorporated or referred to many of the (contin ued...) 13 A.2d 545, 562 (2001) (quoting Merc antile-S afe De posit & T rust Co ., 308 Md. 627, 632, 521 A.2d 734, 736 (1987)) ( [T]he four elements necessary to create a covenant that can run with the land [are]: (1) the covenant touch and concern the land; (2) the original covenanting parties intend the covenant to run; [] (3) there be some privity of estate[;] and [] (4) the covenant be in writing. ). There is also no question that the law of Maryland has longrecognized properly created restrictive covenants as permissible encumbrances on land. See, e.g, Miller v. Bay City Prop. Owners Ass n, 393 Md. 620, 632-33, 903 A.2d 938, 945 (2006) (cataloging cases); Colandrea, 361 Md. at 398, 761 A.2d at 913; Steuart Transp. Co. v. Ashe, 269 Md. 74, 88, 304 A.2d 788, 796-97 (1973) (citing McKenrick v. Sav. Bank of Baltimore, 174 Md. 118, 128, 197 A. 580, 58 4-85 (193 8)); Marke y v. Wolf, 92 Md. App. 137, 148, 607 A.2d 82, 88 (1992) (citing Jones v. Northw est Real E state Co., 149 Md. 271, 280-81, 131 A. 446, 450 (1925)); see also Gnau v. Kinlein, 217 Md. 43, 48 -49, 141 A.2d 4 92, 495 (1958); Turner v. Brocato, 206 Md. 336, 352-53, 111 A.2 d 855, 86 4 (1955); Middleton Realty Co. v. Roland Park Civic League, Inc., 197 M d. 87, 97, 78 A.2d 20 0, 205 (19 51); Oak Lane Corp. v. Duke, 196 Md. 136, 139, 75 A.2d 80, 81 (19 50); Levy v . Dund alk Co ., 177 Md. 636, 647, 11 A.2d 4 76, 481 (1940). A. The Legal Standard for Determining Challeng es to the O ngoing V alidity of Restrictiv e Coven ants 12 (...continued) zoning uses provided in the E-I-A zoning in which the Property was classified initially by the County, there are at least six o riginal or mo dified E-I-A permitted zo ning uses s pecifically tailo red to the purp ose e nvis ione d for the develop men t con cept for the Prope rty. 14 The primary dispu te in this case is th e proper legal standard for assessing the continuing vitality of a restrictive covenant that facially has perpetual existence. B efore addressing that question directly, we first shall recount the manner in which restrictive covenan ts are read and interpreted generally by Maryland courts. In Belleview Construction Co. v. Rugby Ha ll Commun ity Ass n, 321 Md. 152, 157-58, 582 A.2d 493, 495 -96 (1990), we said: In construing covenants, [i]t is a cardinal principle . . . that the court should be governed by the intention of the pa rties as it appears or is implied from the instrument itself. The language of the instrume nt is properly con sidered in connection with the object in view of the parties and the circumstances and conditions affecting the parties and the property . . . . This principle is consistent with the general law of contracts. If the meaning of the instrum ent is not clear from its terms, the circumstances surrounding the execution of the instrument should be considered in arriving at the intention of the parties, and the apparent meaning and object of their stipulations should be gath ered fro m all po ssible so urces. If an ambiguity is present, and if that amb iguity is not clearly resolved by resort to extrinsic evidence, the general rule in favor of the unrestricted use of property will prevail and the ambiguity in a restriction will be r esolved ag ainst the party see king its enforcement. The rule of strict construction should not be employed, however, to defeat a restrictive covenant that is clear on its face, or is clea r when c onsidered in light of th e surrounding circumstances. The courts seem to have ge nerally recogn ized that there is no public policy against a fair and reasonable construction, in the light of surrounding circumstances, of restrictions des igned, in general, to accomplish the same beneficial purposes as zoning. The courts, it would seem, are under a duty to effectuate rather than defeat an intention which is clear from the context, the 15 objective sought to be accomplished by the restriction and from the result that would arise from a different construction. (citations omitted). Th is explication of the method of construing restrictive covenants has been accep ted as th e stand ard in M aryland. SDC 214, LLC v. Lon don Towne Prop. Ow ners Ass n, 395 Md. 424, 434, 910 A.2d 1064, 1069-70 (2006); Lowden v. Bosley, 395 Md. 58, 67, 909 A.2d 261, 266 (200 6); Miller, 393 Md. at 634-35, 9 03 A.2d at 946-47 ; Colandrea, 361 Md. at 400-01, 761 A.2d at 914. In particular, our recent cases have identified Belleview as the semina l case addre ssing the ev olution of o ur coven ant jurisprudence from a purely strict construction approach to that of a reaso nablen ess app roach. See, e.g., SDC 214, LLC, 395 Md. at 434, 910 A.2d at 1070; Lowden, 395 M d. at 67, 909 A.2d at 26 6; Miller, 393 Md. at 634-35, 903 A.2d at 946-47; Markey, 92 Md. A pp. at 150-5 2, 607 A .2d at 88-89 ; see also St. Charles Assocs. Ltd . P ship, 366 Md. at 446-48, 784 A.2d at 557-58. The essential difference between the competin g principle s of constru ction is revealed when e mployed to constru e an am biguou s restrictiv e cove nant. Strict construction requires that an ambiguous covenant be read narrowly in favor of the free alienability and use of land w ithout re gard fo r extrins ic evide nce be aring o n the inte nt of the parties. Steuart Transp. Co., 269 Md. at 87-89, 304 A.2d at 796-97 ; Norris v. Williams, 189 Md. 73, 76, 54 A.2d 331, 332 -33 (1947 ); Whitmarsh v. Richmond, 179 Md. 523, 527, 20 A.2d 161, 163 (1941) (citing Ferguson v. Beth-Mary Steel Corp., 166 Md. 666, 672, 172 A. 238, 240 (1934)). On the other hand, reasonable construction permits the consideration of th e circumstances surrounding the adoption of the ambiguous covenant to effectuate the 16 ascertainab le intent of the parti es. SDC 214, LLC, 395 Md. at 434, 910 A.2d a t 1069-70; Lowden, 395 Md. at 67, 909 A .2d at 266; Miller, 393 Md. at 634-35, 903 A.2d at 946-47; Colandrea, 361 Md. at 400-01, 761 A.2d at 914. The rule of reasonable construction has not replaced the rule of strict construction, but has bee n engra fted on to it. Markey, 92 Md. App. at 164, 607 A.2d at 95. Thus, in construing an ambiguous covenant, courts should consider extrinsic evidence relating to the intent of the parties, but, should that fail to cast sufficient light on the analysis, the rule of strict con struction is enga ged. Belleview, 321 Md. at 158, 582 A.2d at 496. Extrinsic evidence is only utilized when the intent of the parties and the purpose of a restrictive covenant cannot be divined from the actual language of the covenant in question, necessitating a reasonable interpretation of the language in light of the circumstances surrounding its adop tion. SDC 214, LLC, 395 Md. at 434-36, 910 A.2d at 1070-71 (refusing to employ the rule of reasonable construction when no ambiguity was present in the restrictive covenant and ap plying the plain language of the covenant); Miller, 393 Md. at 634-35, 637, 903 A.2d at 946-47, 948 (outlining the evolution of the reasonable construction rule and foregoing its application in construing a covenant because the words used [were] clear and unam biguous ); see also St. C harles Ass ocs. Ltd. P s hip, 366 Md. at 447, 784 A.2d at 557-58 (quoting Markey, 92 Md. App. at 153, 607 A.2d at 90) ( In interpreting words used to create restrictions, the court should ende avor to ascertain the real purpose and intention of the parties and to discover the purpose from the surrounding circumstances at the time of 17 the creation of the restriction, as well as from the w ords used. ) (empha sis removed); Belleview, 321 Md. at 157-58, 582 A.2d at 495-96 (stating that if an instrumen t is not clear from its terms that the wider circumstances should be considered to ascertain the intent of the parties and o nly then, if the am biguity is not so resolved, should the instrument be construed strictly). 1. The Purpose of the Covenants As our cases direct, we begin our analysis of whether the Covenants in this case remain valid and enforceable with an examination of the Covenants purpose as indicated by their actual langua ge. SDC 214, LLC, 395 M d. at 433, 91 0 A.2d a t 1069; Miller, 393 Md. at 637, 903 A.2d at 94 8; Belleview, 321 Md. at 157, 582 A.2d at 495. Where the language of the instrument containing a restrictive coven ant is unam biguous, a court shou ld simply give effect to that language unless prevented from doing so by public policy or some established principle of law. SDC 214, LLC, 395 Md. at 433, 910 A.2d at 1069 (quoting Miller, 393 Md. at 637, 903 A.2d at 94 8); see also Lowden, 395 Md. at 66, 909 A.2d at 26566; Huber, 148 Md. App. at 202, 811 A.2d at 396 ( [R]estrictive covenants are meant to be enforced as written. ). The presence or absence of ambiguity in a contract (such as a restrictive covenan t)13 is a question of law which we review de novo. See United Servs. Auto. 13 As discussed previously, restrictive covenants, where there is a covenantor and covenantee, are a species of contract. Th us, they are interpreted in a like manner a s other types of con tracts. SDC 214, LLC v. London Towne Property Owners A ss n, 395 Md. 424, 434, 910 A.2d 1064, 10 70 (2006 ); Colandrea v. Wilde Lake Cmty. Ass n, 361 Md. 371, 400, 761 A.2d 899, 914 (2000) (citing Belleview Constr. Co. v. Rugby Hall Cmty. Ass n , 321 Md. (contin ued...) 18 Ass n v. Riley, 393 Md. 55, 79, 899 A.2d 819, 833 (2006) (discussing the interpretation of contracts generally). We conclu de, as a matter of law, that the language of the Covenants and the companion Agreem ent is clear an d unamb iguous as to the intent of its p arties. Contra ry to MIE s assertions, neither instrument requires the Property be developed in conjunction exclusively with the U niversity of Maryland. Rather, the Agreement very clearly states that [i]t is the current intention of the [D evelopers] to improve the Prope rty and to sell portions thereof for mixed use commercial development . . . . (emphasis added). In its later discussion of the City s obligation to support the development of the Property, the Agreement referred to the pro ject a s a s cien ce an d tec hnology, research and office park, again, without reference to the University of Maryland.14 Indeed, the only refere nce to the U niversity in either instrument was in the name to be bestowed on the development: the University of Maryland Science and Technology Center, which the Agreement states may be changed by the Developers as they deem appropriate. The intent of the parties and the purpose of the Covenant is clear: to develop a research park, with or without the involvement of the University of Maryland. Both the Agreement and the Covenants originally enumerated 14 permitted uses, each a ddressing that purpose . Had the D evelopers, M IE s prede cessors in 13 (...continued) 152, 156-58, 582 A.2d 493, 495 -96 (1990)). 14 The University of Maryland Foundation, Inc., one of the original Developers, although affiliate d with t he Un iversity of Marylan d System , is a separate, n on-profit corporation. 19 title, wished to protect themselves from a perpetual restrictive covenant in order to account for certain contingencies (such as the withdrawal of the University of Maryland from the project or future unfavorable market conditions), they could have done so by including safeguards in the language of the Covenants. For whatever reason, no such precautions were undertaken and MIE assumed title to the Property subject to the Covenants. We may not invalidate a plainly written covenant to save a party from what may prove to be a poor business decision.15 Higgin s v. Barnes, 310 M d. 532, 540 , 530 A.2d 724, 728 (1987); see also Miller, 393 Md. at 638, 903 A.2d at 948. Even if the instruments were ambiguous, the Circuit Court was not clearly erroneous in its factual finding as to the purpose of the Covenants. 16 As discussed previously, we owe a great measure of deference to the factual findings of the Circuit Court. Thus, we do not overturn its findings of fact absent clear error. We find no such error here. The trial judge was privy to the examination of several witnesses, both expert a nd lay, yielding extensive admitted testimony and other com petent and relevant evidence as to the purpose of the 15 MIE argues, nev ertheless, that the City waive d enfo rceme nt of the Cove nants. We addres s this arg umen t, infra Part IV.C. 16 When ambiguity is fo und in a contract, it becomes a question of fact to decipher the intent of the parties in forming the instrumen t. McLean, Koehler, Sparks & Hammond v. Schnepfe , 309 M d. 399, 410 , 524 A.2d 86, 91 (19 87); Shapiro v . Massen gill, 105 Md. App. 743, 754-55, 661 A.2d 202, 208 (1995). Deciphering that intent requires close examination of testimony and other evidence, which is a task b est perf ormed by the trial c ourt. See Steuart Transp. Co. v. Ashe, 269 M d. 74, 89-91 , 304 A.2d 788, 797 -98 (1973 ) (refusing to set aside as clear error the factual findin gs of a chancellor on the question of w hether there was mutual intent to restrict the uses o f a certain plot of land). 20 Covenants. We do not second-guess the Circuit Court s evaluation of the Covenants purpose given the trial cou rt s unique position to weigh the credibility of the evidence and testimony add uced at trial. Moreover, we agree with the Court of Special App eals s rejection of MIE s assignment of error that the Circuit Court improperly limited MIE s ability to present its case by refusing to expand the number of days originally designated for trial. As a general proposition, [t]rial judges have the widest discretion in the conduct of trials, and the exercise of that discretion should not be d isturbed on appeal in the a bsence of clear abu se. Thus, a trial judge maintains considerable latitude in controlling the conduct of a trial subject on ly to an abuse of discretion standard. Tierco Md., Inc. v. Williams, 381 Md. 378, 426, 849 A.2d 504, 534 (2004) (quoting Johns Hopkins Hosp. v. Pepper, 346 Md. 679, 700, 697 A.2d 1358, 1368 (1997)) (citations om itted). This is als o true with respec t to th e numbe r of d ays allotted for trial. See Reed v. Balt. Life Ins. Co., 127 Md. App. 536, 568-69, 733 A.2d 1106, 1123 (1999) (finding no abuse of discretion in a trial court s extension of trial days from that allotted by the administrative judge). Following the pre-trial conference, at which time the trial was set for three days based on MIE s representation that it intended to call six fact witnesses and two expert witnesses, MIE did not petition the court prior to trial for additional days to accommodate more witnesses. Rather, MIE waited until the morning of the first day of trial to broach this subject. T hus, the Circ uit Court did not abuse its discretion in denying 21 MIE the opportunity to produce additional witnesses, which w ould have extended the length of the trial beyond the limit established at the pre-trial conference. 2. The Continuing Vitality of the Covenants in Light of their Purpose Once the proper existence and purpose of a restrictive covenant is established, the onus falls on the party seeking its annulment to demonstrate that, notwithstanding the clear purpose, the covenant shou ld no longer be recognized as valid an d enforceable. In determining whether the Covenants remain valid and enforcea ble in relation to their purpose, the Court of Special Appeals placed the burden on the City to prove that there is a reasonab le possibility that the Maryland Science and Technology Center will be developed on the property. This was incorrect. The burden to prove the validity of a restrictive covenant devolves upon the claimed beneficiary of the restriction only where [it is] not specifically expressed in a dee d, to show by clear and satisfactory proof that the common grantor intended that [it] should affect the land retained as a part of a uniform general scheme of develo pmen t. Steuart Transp. Co., 269 Md. at 88, 304 A.2d at 797 (quoting McKenrick v. Sav. Bank of Balt., 174 M d. 118, 1 28, 197 A. 580 , 584-8 5 (193 8)). In oth er wor ds, a covenantee bears the burden of proving validity only when there is doubt as to w hether a covenant actually encumbers a particular tract of land. That is not the case here. The proper legal standard fo r this inquiry is to examine whether, after the passage of a reasonable p eriod of tim e, the continu ing validity of the covenan t cannot fu rther the purpose for which it was formed in light of changed relevant circumstances. 22 The intermediate appellate court looked to the eminent domain case of State Roads Commission v. Kamins, 82 Md . App. 552 , 560, 572 A .2d 1132 , 1136 (19 90), for the appropria te legal standard require d in the c ase at ba r. Relying on Kamins, the Court of Special Appeals stated that the circuit co urt must . . . determine whether there is a reasonab le probab ility that the parties will be able to achieve the goals o f the C ovena nts with in a reas onable period of time . This formulation was the incorrect legal standard for determining the validity of restrictive covenants. First, the intermediate appellate court adopted (wrongly) a standard applicable to eminent domain c ases whic h does no t translate so rea dily to the analysis of covenan ts because of the distinct objectives inherent to each. We alluded, in Rogers v. State Roads Comm n, 227 Md. 560, 568, 177 A.2d 850, 854 (1962), to the false analogy drawn in that case by the Court of Special Appeals between eminent domain and covenant cases. In an eminent domain case where the fair market value of the subject property is at issue, one factor that influences this value is the reasonable probability of a change in zoning classification within a reasonable time. J. William C ostello Profit S haring Tr ust v. State Roads Comm n, 315 M d. 693, 7 03, 556 A.2d 1102, 1107 (1989). A property owner who wishes to attain as much as possible in damag es for the co ndemna tion of his o r her prope rty may seek to show that there is a reasonable possibility of rezoning. Pro of of this factor, though, relies on considerations outside the owner s control, focusing mostly on the character of the surrou nding a rea. See, e.g., State Roads Comm n v. Warriner, 211 Md. 480, 486-87, 23 128 A.2d 248, 252 (1957) (considering population growth in the area, the expansion of commercial area in the vicinity of the subject property, the demand for property for industrial use in the area, the proximity of a tract already zoned as light industrial, the adaptability of the tract to such use, expansions of volu me a nd acces s to ro ads a nd highw ays in the v icini ty, and the opinions of expert witnesses as to the highest and best use of the land); State Roads Comm n v. Kamins, 82 Md. App. 552, 561-62, 572 A.2d 1132, 1137 (1990) (considering the development of adjo ining lan d). Thus, the owner cannot influence inappropriately his own destiny because fulfillment of the standard is based on objective criteria. When the eminent domain standard of reasonable probability is applied to analysis of a covenant, how ever, the owner is empowered to influence the outcome of the question because th e standard is now satisfied by subjective criteria within the own er s control. In a case where the validity of the covenant is at issue, the reasonable probability of the covenant achieving its purpose within a reasonable time may be decided who lly by the conduct of the owne r. If the owner wishes to be freed of the covenant s restrictions, all he or she must do is refuse to abide by them, showing that the cov enant s pu rpose is moot. It is untenable that a covenantor has the power unilaterally to defeat a covenant to which he or she has agreed to be bound. The objectives of covenant law are better served by the standard we announce toda y. The standard of changed circumstances restores the goal of objectivity in evaluating the ongoing validity of covenan ts by linking the re sult to objectiv e factors ou tside of the p roperty owner s control. In this w ay, the chang ed circum stance stan dard for co venant an alysis 24 achieves an outcome similar to that achieved by the reasonable probability standard for eminent domain cases. Second, the intermediate appellate court apparently misconceived the operation of the rule of reason able constru ction of restric tive coven ants by subjec ting e very aspect of such covenants, including their validity, to a reasonableness inquiry. Specifically, the court applied a rule meant to ascertain the intent of the parties to a covenant (its construction) to determine its continuing validity by evaluating the reasonable chances of accomplishing its purpose. This is not the intended application of the reasonable construction rule. Because we believe that this is the standard that the Circuit Co urt applied, rea ching a co rrect result, we agree with the trial court s finding that the Covenants remain valid and enforceable. Our cases establish that chief among the factors considered in evaluating the present circumstances relevant to determining the continuing validity of a restrictive coven ant is whether there has been a radical change in the neighborhood causing the restrictions to outlive their usefulness. Chevy Chase Village v. Jaggers, 275 Md. 309, 316, 275 A.2d 167, 171 (1971); see also Steuart Transp. Co., 269 Md. at 97, 304 A.2d at 801-02 (quoting Jaggers, 275 Md. at 31 6, 275 A.2d at 17 1); Rogers v. State Roads Comm n, 227 Md. 560, 567-68, 177 A.2 d 850, 85 4 (1962); Gnau, 217 Md. at 51-52, 14 1 A.2d a t 497; Texas Co. v. Harker, 212 Md. 188, 196-97, 129 A.2d 384, 389 (1957); Needle v. Clifton Realty Corp., 195 Md. 553, 558 -59, 73 A .2d 895, 89 7-98 (195 0); Norris, 189 M d. at 78, 54 A.2d at 333-34; 25 Talles v. Rifman, 189 Md. 10, 15-16, 53 A.2d 396, 398 (1947); Gulf Oil Corp. v. Levy, 181 Md. 488, 494-96, 30 A.2d 740, 743-44 (1943); Whitmarsh, 179 Md. at 529, 20 A.2d at 164. A dramatic change in the character of a neighborhood, thou gh, is not the o nly circumstance to be considered. In some cases, the covenantee no longer exists, thus defeating the purpose of the c ovena nt. See, e.g., Whitmarsh, 179 Md. at 528-29, 20 A.2d at 163-64 (holding that covenant personal to a defunct comp any, there being no one to enforce the covenant, should be invalidated); Plack v. Weber, 190 Md. 431, 433, 58 A.2d 489, 489-90 (1948) (holding v oid a cove nant bene fitting a statuto rily dissolved company). Maryland courts also have recognized that the equitable doctrine of comparative hardship may be applied by a court to absolve a defendant of violating a restrictive coven ant and ref use to enjoin the use barred by the co venan t. Colandrea, 361 Md. at 396, 761 A.2d at 91 2; Jaggers, 275 Md. at 320, 275 A.2d at 17 3; Grubb v. Guilford Ass n, 228 Md. 135, 140, 178 A.2d 886, 888 (1962 ). The exercise of that doctrine, however, is appropriate only when the violation is committed innocently or mistakenly and enforcement of the covenant would visit much greater harm on the violator co mpared to the slight am ount of h arm the be neficiary of the covenant would experience if the covenant was not enforced.17 Easter v. Dundalk Holding Co., 199 Md. 303, 305, 86 A.2d 404, 405 (1952). Neither of these defenses has been 17 We note that the fact that the land subject to restrictions wo uld be mo re valuable without the restrictions is not controlling o n a determ ination of w hether a co venant sh ould be deemed valid in t his ana lysis. Texas Co. v. Harker, 212 Md. 188, 201, 129 A.2d 384, 391 (1957). 26 mounted by MIE. We doubt either could be established on this record. We focus, then, on the radical neighborhoo d change factor. Importantly, the particular state of affairs bearing on the potential f or a coven ant to fulfill its purpose must be viewe d with respect to the passage of time. Generally, if an unambiguous covenan t specifies its du ration for a tim e certain, then courts shou ld hold the parties to their bar gain. Calomiris v. Woods, 353 Md. 425, 445, 727 A.2d 358, 368 (1999) ( In the absence of fraud, duress, mistak e, or some c ountervailin g public po licy, courts should enforce the terms of unambiguous written contracts without regard to the consequences of that enforceme nt. ); Post v. Bregman, 349 Md. 142, 169, 707 A.2d 806, 819 (1998); Devereux v. Berger, 253 Md. 264 , 269, 252 A.2d 4 69, 471 (1969); Central Sav. Bank of Balt. v. Post, 192 Md. 371, 381, 64 A.2d 275, 279 (1949) ( [Equitable principles] may affect the construction or performance of contracts, but ordinarily they do not ignore or override the terms of law ful contrac ts. ); R ICHARD R. P OWELL , 5 P OWELL ON R EAL P ROPERTY ¶ 678, a t 60-12 3 (199 0). But see Norris, 189 Md. at 78-79, 54 A.2d at 333-34 (voiding under equity principles a restrictive covenant set for 50 years duration after 30 years due to changes in the character of the neighborhood vitiating completely the purpose of the covenant). In instances where a covenant does not specify the duration of the restriction or a covenant prescribes an indefinite duration, however, courts, under eq uity principles, may limit th e cove nant s d uration to a reas onable period of time . Gulf Oil Corp., 181 Md. at 49 3, 30 A.2d at 743; Whitmarsh, 179 Md. at 529-30, 20 A.2d at 16 4; see also 27 Anne Arundel County v. Crofton Corp., 286 Md. 666, 673, 410 A.2d 228, 232 (1980) (stating that when a contract does not specify the time for performance, a reasonable time will be implied ). Although the passage of a period of time deemed reasonable will vary according to the particular purposes of the covenant, we observe that given the enduring nature of real property and the lon ger expan ses of time typically associated with analysis of questions bearing on interests in land,18 see, e.g., Fitzpatrick v. Merca ntile-Safe D eposit & Tru st, 220 Md. 534, 541, 155 A.2d 702, 705 (1959) (stating that the Rule [Against Perpetuity] is not concerned with the duration of estates, but the time of their vesting. ) (footnotes omitted and emphas is added), what is deemed reasonable tends to be a relatively generous portion of time. Compare King v. Waigand, 208 Md. 308, 117 A.2d 918 (1956) (upholding covenant after passage of 64 yea rs); Middleton Realty Co., 197 Md. 87, 78 A.2d 200 (upholding covenant after passage of 54 years); Grubb, 228 Md. 135, 178 A.2d 886 (upholding covenant after passage o f about 47 years); Steuart Transp. Co., 269 Md. 74, 304 A.2d 788 (upholding covenant after passag e of 41 years) ; Jaggers, 261 Md. 309, 275 A.2d 167 (upholding covenant after passage of 40 years); Harker, 212 Md. 188, 129 A.2d 384 (upholding covenant after passage of 32 years); Peabod y Heights Co. of Ba lt. City v. Willson, 82 Md. 186, 32 A. 1077 (1895) (upholding covenant for second time after passage o f approx imately 25 years); Schlicht v. Wengert, 178 Md. 629, 15 A.2d 911 (1940) (upholding covenant after 18 Real covenants, such as the Covenants in this case , are an in terest in la nd. See Mercantile-Safe Deposit & Trust Co. v. Mayor & City Council of Baltimore, 308 Md. 627, 641, 521 A.2d 734, 741 (1987) ( The view that covenants running with the land are indeed property interests is entirely consistent with Maryland decisions. ). 28 passage of about 1 8 years ); Rogers v . State Roads Comm n, 227 Md. 560, 177 A.2d 850 (1962) (upholding covenant upheld after passag e of 15 years), with Gulf Oil Corp., 181 Md. 488, 30 A.2d 740 (voiding covenant after passage of appro ximately 90 years ); Esso Standard Oil Co. v. Mullen, 200 Md. 487, 90 A.2d 192 (1952) (voiding covenant after passage of about 45 years); Talles, 189 Md. 10, 53 A.2d 396 (voiding covenant after passage of about 35 years); Whitmarsh, 179 Md. 523, 20 A.2d 161 (voiding covenant after passage of about 34 years); Ford v. Union Trust Co. of Md., 196 Md. 112, 75 A.2d 113 (1950) (voiding covenant after approximately 24 years). While the cases referred to above reflect that Maryland courts have invalidated some restrictive covenants at vintages as young as 20 to 50 years, we caution parties bound by such agreeme nts against challenging perennially their validity in hopes that some bright line expiration date has been reached. We are not speaking of perishable food items here. The passage of time alone does not evidence decay in this scenario. It is not necessarily so that the validity usually of covenants are compromised with each passing year. Rather, the question of validity is a combination of a reasonable period of elapsed time and frustration of purpose in light of changed circumstances occurring o ver that time. T o that point, w e note that those covenants invalidated in our cases 20 to 50 years after their creation differed substantially from their uph eld counte rparts becau se of the ex tent of the ch ange in circumstances that had occurred in the former, completely frustrating the purpose of the covenan t. Compare Esso, 200 Md. at 49 0, 90 A.2d at 1 93 (v oiding resid entia l only 29 covenant after 45 years, lo oking to th e broader surroundings of the affected land and concluding the the neighborhood is now dominantly and progressively commercial ) (emphas is added); Talles, 189 Md. at 15, 53 A.2d at 398 (invalidating covenant requiring detached housing use upon finding that on practically all of the improved property surrounding Block 13, there have been erected row houses, so that the entire neighborhood has become a row house community ) (emphasis added); Whitmarsh, 179 Md. at 525, 20 A.2d at 162 (voiding covenant limiting land for residential uses only when practically a ll of the properties adjacent to the property here involved now are being used for commercial purpose ) (emphas is added); Ford, 196 M d. at 117-18 , 75 A.2d a t 115 (affir ming chancellor s ruling that pe rvasive com mercial dev elopmen t and the ph ysical impossib ility of residential development of the land made re sidentia l use on ly coven ant void ), with Middleton Realty Co., 197 Md. at 94, 97, 78 A.2d at 203 (upholding residential use only covenant owing to intention of the parties as shown b y their conduct over a period o f more than fifty years, and by their activity in a determined and successful resistance to business encroach ment and finding that residential developmen t was still possible); Grubb, 228 Md. at 140, 178 A.2d at 888 (finding, after 47 years, no evidence of change in the neighborhood sufficient to invalidate the restrictive covenant ); Jaggers, 261 Md. at 317, 275 A.2d at 171 (holding that minimal deviations from the original plan are not sufficient to show a change in the neighborhood that is either complete or radical ) (e mphasis a dded); Steuart Transp. Co., 269 M d. at 97, 304 A.2d at 80 2 (conclud ing that the character of the [affected land] 30 remains unchanged and the restrictions imp osed on th e beach a rea afford the same b enefits to the lot owners today as they did when imposed by the [original beneficiaries 41 years ago] ). In the present case, at the time of trial in March 2004, approximately 19 years had passed since the Covena nts were executed in December 1985.19 We find no error in the Circuit Court s determination that [t]here has been no radical change to the character of the neighborhood so as to defeat the purpose [] embodied in the Covenants and the Annexation Agree ment. 20 We do not disturb a trial court s findings of fact on the question of changed circumstances absent clear err or. Steuart Transp. Co., 269 Md. at 97, 304 A.2d at 802; Pollack v. Bart, 202 Md. 172 , 176, 95 A.2d 86 4, 866 (1953). The Covenants pu rpose of supporting the development of a science and technolog y research park in accorda nce with the 14 uses specified in the Covenants and Agreement has not been obviated by either the absence of the University of Maryland from participation in the project or surrounding physical chang es to the neigh borho od. Thus, the C ovenants remain va lid and enforceable. B. Enforcement of the Covenants by the City does not Constitute Illegal Contract Zoning 19 MIE, through c ounsel, exaggera ted the age o f the Cov enants in its Motion to Amend Scheduling Order, filed on 5 Sep tember 20 03, by stating tha t it was ap proximate ly twenty five (25) year[s] old . . . . In actuality, the Covenants were not q uite 18 years old at the time of MIE s a ssertion. At th e time this op inion is filed, the Covenants will not have reached their 22 nd birth day. 20 Further, based on our review of the fact-finding by the trial judge, there has been no change in circumstances to the extent noted in our cases where covenants were deemed unenf orceab le after 2 0 to 50 ye ars of e xistenc e. 31 MIE claims that the imposition of the Covenants in connection with its annexation of the Property constitutes a sort of illegal contract zoning by a municipality, contrary to our decision in Mayor & Council of Rockville v. Rylyns Enterprises, Inc., 372 Md. 514, 814 A.2d 469 (2002). In Rylyns, the City of Rockville entered into a written Annexation Agreement with the owners of a plot of land located in M ontgom ery County to no t only bring the land within the limits of the City, but also to rez one that lan d to an I-1 (Service Industrial) classification. 372 Md. at 524, 577, 814 A.2d at 474, 506-07. We held that the contractual agreement between the owners of the land and the City, which poss esse d zoning auth ority, 21 constituted illegal contract zoning. Contract zoning occurs when an agreement is entered between the ultimate z oning auth ority and the zoning applicant/property owner which purports to determine contractua lly how the property in question will be zoned, in derogation of the legal prerequisites for the grant of the desired zone. Rylyns, 372 Md. at 547, 814 A.2d at 488. Because the City of Rockville granted the I-1 zoning classification to the subject property via the Annexation Agreement, without observing the proper procedures and criteria for rezoning the property, it impermissibly contracted away its zonin g autho rity. Rylyns, 372 Md. at 575, 814 A.2d at 505. In the process of contracting away its responsibility in the public interest, the City allow[ed] a property owner to obtain a special privilege not 21 The City of Rockville implemented its delegated z oning auth ority in Rockv ille City Code, § 25-2. See Maryland Code (1957, 2003 Repl. Vol.), Article 66B, § 4.01, f or the sour ce of that a utho rity. 32 available to others, and disrupt[ed] the comprehensive nature of the z oning p lan . . . . Rylyns, 372 M d. at 547 , 814 A .2d at 48 8 (citatio ns omi tted). MIE asserts that, in a f ashion sim ilar to the City of Rockville s actions in Rylyns, the City of Bowie has engaged in a form of illegal contract zoning, accomplished by the Coven ants and Ag reement w ith the Developers of the Property, in contravention of Prince George s Cou nty s zoning authority. As MIE s theory goes, the County s zoning prerogatives are disrupted because the Covenants prohibit a number of the uses permitted by the E-I-A zoning classification initially assigned to the Property by the County. Since the time the Covenants were executed, Prince George s County, under its zoning power exercised by the Coun ty Council in its capacity as the district council for that part of the county within the Regiona l District, 22 amended the E-I-A zoning district legislation to permit a mixe d use p lanned comm unity. 23 There was also a subsequent change granted in the zoning classific ation of th e Pro perty from E-I-A to M-X-T Mixed Use, Transportation Oriented. Because these changes would permit the Dance Studio s use on the Property, along with man y othe r use s not contemp lated by the Covenants , MIE arg ues that the C ovenants illegally impose land use limitations that are different from the County s. MIE s argumen t is without m erit. First, we note that Rylyns dealt with a municipa lity invested with zoning authority, which is the only reason the prohibition on contract zoning 22 Maryland Code (1957, 2003 Repl. Vol.), Art. 28, § 8-101. 23 Prince George s County Code, § 27-500. 33 was implicated. T he City of B owie poss esse s no s uch zoning a utho rity, 24 so it has no zoning authority to co ntract aw ay as did the City of Rockville in Rylyns. Contract zoning, which requires an agreement between the ultimate zon ing autho rity and the zoning applicant/pro perty owne r, cannot take place wh en neither o f the parties to the agreem ent is an ultimate zo ning autho rity. Indeed, [o ]ur appellate cases con sistently have he ld that it is the identity of the contracting parties that is the critical issue. Rylyns, 372 Md. at 577-78, 814 A.2d at 507. To that point, MIE s attempt to extend the holding of Rylyns by arguing that the City of B owie and Prince G eorge s C ounty are somehow linked so that the City s actions have interf ered with th e Coun ty s ultimate zonin g authority is una vailing. The simple fact is that the C ounty was n ot a party to the C ovenants or the Ag reement. We were presented with a similar argument in City of Greenbelt v. Bresler, 248 Md. 210, 236 A.2d 1 (1967). In Bresler, the City of Greenbelt, which possessed no zoning auth ority, entered into covenants with private landowners, who ag reed to com ply with certain dwelling unit limitations on a parcel of property as an inducement to obtaining [a] favora ble recommendation from the C ity on its petit ion f or re zoning o f the prop erty. Bresler, 248 Md. at 212, 236 A.2d at 2. In concluding that no contract zoning had taken place, our predecessors found it compelling that [i]n the instant case the district council, the deciding agen cy, is in no manner a party to the contract. Bresler, 248 Md. at 215-16, 236 A.2d at 4. 24 MIE stated in its brief that the City of Bow ie posse sses lim ited zon ing auth ority. This is incorrect. The only municipality in Prince George s County invested with zoning authority is the City of L aurel. Prince G eorge s C ounty v. Mayor & City Council of Laurel, 262 Md. 17 1, 179 n.1, 277 A .2d 262, 266 n.1 (19 71). 34 Furthermore, the City of B owie is w ithin its rights to attempt to ad dress via co venants its concerns with the us e of land w ithin its munic ipal limits, shou ld a land owner wish to be a party to such an agreement. The Rylyns Court pointed out that [a]greements between the landowner and governmental agencies who do not wield the final zoning authority or entities extrinsic to the formal zoning process . . . may be permissible. 372 Md. at 547, 814 A.2d at 489 (citing Funger v. Mayor & Council of the Tow n of Som erset, 249 Md. 311, 328, 239 A.2d 748, 757 (1968) and Rodriguez v. Prince George s County, 79 Md. App. 537, 553, 558 A.2d 742, 750 (1989)); see also Bresler, 248 Md. at 215 -16, 236 A.2d at 4 ( We think there is a significant distinction between those cases where the contract is made between the developer and the z onin g authority, and those cases involving a contract entered into in good faith between the develo per and a m unicipality which does not have control over the classification and who se authority is limited to recommend ation. ). Contrary to MIE s assertions, covenants may be more restrictive than the zoning classification imposed by the externa l zoning authority. Th is is so becau se the cove nants exist as independent co ntrols on p roperty. Jaggers, 261 Md. at 319, 275 A.2d at 172 (quoting Martin v. Weinberg, 205 Md. 519, 527-28, 109 A.2d 576, 579 (1954) ( Contractual restrictions are neither abrogated nor enlarged by zoning restrictions. )); Perry v. County Bd. of Appeals , 211 Md. 294, 299, 127 A.2d 507, 509 (1956) (holding that [a zoning] ordinance does not overrid e or defea t whateve r private rights exist and are legally enforceable through a restrictive cov enant); Sea Watch Stores Ltd. Liab. Co. v. Council of Unit Owners of Sea 35 Watch Condo., 115 Md. App. 5, 43, 691 A.2d 750, 768 (1997); 5 EDWARD H. Z IEGLER, J R., R ATHKOPF S T HE L AW OF Z ONING AND P LANNING, § 82:2 (4th ed. 2001) ( When a zoning restriction and a private covenant are in conflict, the more restrictive of the two p revails. ). Coven ants would be pointless if they could not restrict the uses of a pro pert y to a greater degree than permitted by the underlying zoning of property. As long as the covenant is as or more restrictive, and n ot less restrictive, than the underlying zoning classification, the goals of zon ing are n ot frustr ated. See Schu ltz v. Pritts, 291 Md. 1, 20, 432 A.2d 1319, 1330 (1981) ( Zoning provides a tool by which to establish general areas or districts devoted to selected uses. ) (emphasis added); Arundel Corp. v. B d. of Zoning Appeals , 255 Md. 78, 84, 257 A.2d 142, 146 (1969) ( [T]he policy of zoning regulations is to restrict rather th an increase any non-conforming uses. ) (emphasis added); Grant v. Mayo r & City Council of Baltimore, 212 Md. 301, 307, 129 A.2d 363, 365 (1957) ( [T]he earnest aim and ultimate purpose of zoning was and is to reduce nonconformance to conformance as speedily as possible with due regard to the legitimate interests of all concerned, and the ordinances forbid or limit expansion of nonconforming uses . . . . ) (emphasis added). We are bound to interpret both the Covenants and the Agreement as written. The original parties to the Covenants and Agreement could have structured those instrumen ts to permit the list o f allowab le uses to expand or contract with the uses allowed by the zoning classification establish ed for th e Prop erty by the C ounty. They did no t. We ma y not add to 36 the instruments that which the consenting parties neglected to bargain for in the course of their dealings. C. The C ity s Alleged W aiver of the Coven ants MIE alternatively claims that it is not bound by the Cove nants beca use the City waived its right to enfo rce the instrum ent. 25 This waiver argument is based on four grounds. First, MIE states that, prior to its acquisition of the Property, the City allowed several uses on the Property that w ere inconsis tent with the Coven ants restrictions. In particular, MIE cites as examples the operation of a sculpting studio and a private residence known as the Melford House on the Property. Second, MIE points to the C ity s voluntary extinguishment of the Covenants as to two subdivided parcels of the Property on which buildings were constructed for the fed eral govern ment s Institu te of Def ense An alysis and Census Bureau. Third, it is asserted that representatives of the City manifested orally to MIE that the Covenants would not be enforced in the event that MIE purchased and developed the Prop erty. Finally, after M IE purch ased the pro perty, it is contended that the City permitted tenancies in the flex building space o f a home imp rovement contractor, a tutoring business, a kidney d ialysis cen ter, a medical clinic, a church, a vending business, and a sleep clinic. MIE alleges that these tenancies are contrary to the City s interpretation of the Covenants. 25 The City c onte nds m istak enly that MIE did not preserve its waiver argument because it failed to assert it in the Court of Special Appeals. In fact, MIE raised the principles of waiver and estoppel in its Answer at the trial court level and argued in its brief before the Court of Special Appeals that the City had waived its right to enforce the Covenants. 37 Maryland appellate co urts have lo ng recog nized the eq uitable defe nse of w aiver in restrictive coven ant case s. Jaggers, 261 Md. at 318-20, 275 A.2d at 172-73; Harker, 212 Md. at 195, 129 A.2d at 388; Kirkley v. Se ipelt, 212 Md. 127, 136, 128 A.2d 430, 435 (1957); King, 208 Md. at 313, 117 A.2d at 92 0-21; Schlicht v. Wengert; 178 Md. 629, 635, 636, 15 A.2d 911, 913, 914 (194 0); Linder v. W oytowitz, 37 Md. App. 652, 658-59, 378 A.2d 212, 216 (1977); Speer v. Turner, 33 Md. App. 716, 727 -29, 366 A .2d 93, 100 -01 (1976 ); Liu v. Dunnigan, 25 Md . App. 178 , 190-92, 33 A.2d 33 8, 345-46 (1975); see also Bean v. Steuart Petroleum Co., 244 Md. 459, 468-69, 224 A.2d 295, 300 (1966 ) (discussing the general principles of estoppel in relation to the enforcement of a restrictive cov enant); Borssuck v. Pantaleo, 183 Md. 148, 154, 36 A.2d 527, 530 (1944) (same). In this context, waiver deems unenfor ceable a covenant because some word or act of the covenantee communicated to the covenantor that the covenant would not be enforc ed. Speer, 33 Md. App. at 728, 366 A.2d at 101(citing Gould v. Transamerican Assocs., 224 Md. 285, 294, 167 A.2d 905, 909 (1961)). The defense is manifested in two forms: (1) waiver by acquiescence, which involves a covenantee abiding the violative actio ns of the co venantor d efendan t,26 and (2) waiver by abandon ment, which en tails the coven antee abidin g the violative actions of others besides the covenantor defendant which are taken as also waiving impliedly violative actions of the 26 The covenan tor defend ant is the party whose conduct the covenantee actually seeks to enjoin. It is often the case that there is more than one covenantor to a covenant and, indeed, that multiple covenantors are violating the covenant, but only one is sought to be enjoined. 38 covenantor defenda nt. 27 Kirkley, 212 Md. at 136, 128 A.2d at 435. Our cases, slathere d with a layer of common sense,28 dictate that in order for waiver to occur, the covenantee must be aware of the covenanto r s acts or u ses and their po ssible vi olative n ature. Jaggers, 261 Md. at 318-19, 275 A.2d at 172; Speer, 33 Md . App. at 72 7, 366 A .2d at 100; see also Bean, 244 Md. at 468-69, 224 A.2d at 300; Borssuck, 183 Md. at 153-54, 36 A.2d at 530. The question of whether waiver has occurred is a question of fact, Creveling v. Gov t Employees Ins. Co., 376 Md. 72 , 96, 828 A .2d 229, 24 3 (2003); Bean, 244 M d. at 469, 22 4 A.2d a t 301; Linder, 37 Md. App. at 658, 378 A.2d at 21 6, which is reviewed for clear erro r. This case involves an allegation of waiver by acquiescence because, although MIE alleges that a variety of other entities that actually are carrying on assertedly violative uses on the Prope rty, only MIE is a party to the Covenants; MIE was the entity to approve the tenancies of the businesses 27 Waiver by abandonment is similar to the change in circumstances standard we discussed supra, but with two distinguishing factors: where the inconsistent use is taking place and by whom. Waiver by abandonment concerns violative uses of the land subject to a restr ictiv e cov enan t carr ied o ut by covenantors other than the one sought to be enjoined. The change in circumstances standard often involves changes to the surrounding neighborhood of the subject land that are inconsistent with the covenant s restrictions, but are neither carried out on the su bject land itself, nor by any covenantor. 28 In order for someone to acquiesce to something , they must hav e know ledge of it. Whiting v. State, 389 Md. 334, 361, 885 A.2d 785, 801 (2005) ( Knowledge and consent are elements of acquie scence. ); see also Pence v. Langdon, 99 U.S. 578, 581 (1878) ( Acquiescence and waiver are always questions of fact. There can be neither without knowledge. The terms import this foundation for such action. One cannot waive or acquiesce in a wrong while ignorant that it had been committed. Current suspicion and rumor are not enough. There must be knowledge of facts which will enable the party to take effectual action. Nothing short of this w ill do. ); B LACK S L AW D ICTIONARY 25 (8th ed . 1999); T HE C OMPACT O XFORD E NGLISH D ICTIONARY 13 (2d ed. 1991). 39 perpetrating the violative uses; and MIE, as landlord, is the appropriate party to be enjoined by the C ity. 29 We find no evidence of clear error in the Circuit Court s judgment that the City did not waive its right to enforce the Covenants. On the first ground asserted by MIE, there was simply not enough evidence adduced by MIE to compel acceptance of its claim that the presence of the Melford House and a sculpting studio on the Property was inconsistent with the C ovenants . The party seek ing to prove waiver bears the burden of proof of establishing that defense. Canaras v. Lift Truck Servs., Inc., 272 Md. 337, 361 , 322 A.2d 866, 879 (1974); see also Creveling, 376 Md. at 102, 828 A.2d at 247 (discussing estoppel). MIE s only proof that the aforementioned uses violated the C ovenants was a ref erence to testimony by Joseph Meinert, Planning Director for the City of Bowie, w ho reviewed u ses on the Property for consistency with the Covenants . Meinert testified that he believed that the historic Melford House was a consistent use and did not violate the Covenants. He further testified that the City was unaware of the sculp ting studio u se until the sculptor approached the City regarding a law enforcement matter related to his studio.30 An unknown amount of time passed between commencement of his use of the space and the vandalism report. Meinert warned the 29 Whether the kind of waiver attributed to this case is of the acquiescence or abandonment variety is merely a technical matter. The sub stantive result is the same in either instance on the record here. 30 App aren tly, the sculptor was distressed about some vandalism that had occurred in the space he used as a studio and to his sculpting implements. It was only then that the City became aware of his use of the space. 40 sculptor that his use may not be legal for his lack of a use and occupancy permit and other trappings of the formal plan approval process, but did not pursue the m atter further. This is an inadequate basis upon which to hold that the Circu it Court w as clearly errone ous in its judgment that no waiver occurred. MIE next poin ts to the fact tha t the City extingu ished the C ovenants applicability with regard to certain parcels of the Property acquired by the federal government for the construction of the Institute for Def ense An alysis and Census Bureau buildings.31 This was achieved by the City execu ting and rec ording in the land record s of Prince George s County a Declaration of Covenant Extinguishment and Reinstatement, which provided that the parcel acquired by the federal government was released from the encumbrance of the Covenants until such time as any non-federal entity held an interest therein.32 This limited extinguishment was accomplished by the means prescribed in the Agreement and the 31 The Circuit Court concluded that [t]he Federal Government s presence at the site was in keeping with the Covenants. [The Federal Government s] insistence on a Declaration of Exting uishment during their possession of a parcel at the Center does not constitute a waiver of the Covenants. To the contrary, the extinguishment was a waiver of limited effect and duration. The case of Speer v. Turner, 33 Md. App. 716, 366 A.2d 93 (1976), establishes that waivers may be lim ited and the covenan t remain en forceable as to conduct excee ding th at waiv ed. In Speer, a neighbor waived the enforcement of a restrictive covenant on the height of a house being built by a landowner, agreeing to a height of no more than 15 and one-half feet. 33 Md. App. at 727, 366 A.2d at 100. When the landowner breached the terms of the waive r by erectin g his ho use to a ultimate height o f 24 fe et, id., the Court of Specia l Appeals held that the neighbor was not estopped from pursuing relief for the brea ch. Speer, 33 Md. App. at 729, 366 A.2d at 101. 32 The extinguishm ent also cov ered a parc el acquired by the State of M aryland, a fact not discussed by MIE nor, as a result, this opinion. 41 Covenants: in writing and [] signed by the party against whom the enforcement of such waiver, modification or amendment is sought, and then only to the extent set forth in such instrument. The waiver, signed by all concerned parties, was personal to the federal government and thus , may n ot be exte nded by M IE to emb race its ac tivities on the P rope rty. Furthermore, because MIE asserts waiver by acquiesce nce, the City s g rant of a w aiver to anothe r is irrelev ant. Kirkley, 212 Md. at 136, 128 A.2d at 435. MIE s third ground for establishing waiver is unavailing for a reason similar to that underlying our rejection of the second ground: a purported oral waive r of the Co venants is ineffective when the Covenants specify that their waiver must be accomplished in writing. MIE asserts, based on d eposition testim ony of Edw ard St. John , President of MIE, tha t he was told by MIE s Development Director, Ramon Benitez, who in turn was told by City of Bowie officials, that the Covenants were waived for the federal government and should not prevent MIE from develop ing the Prope rty. 33 This wa s an oral com municatio n and, under the circumstances, could not be an effective waiver. Moreover, the Circuit Court found no waiver on this ground based on its evaluation of the competent evidence. We find no clear error in the C ircuit Court s judgmen t. 33 The City argues that this testimony consisted only of self-serving and hearsay declara tions. We exp ress no op inion as to the merits of the City s unpreserved at trial, and thus waived, hearsay objection to St. John s deposition testimon y. Maryland Rules 2-415(g ), 2-517(a); Mayor & City Council of Baltimore v. Theiss, 354 Md. 234, 257-58, 729 A.2d 965, 978 (1999); see also Supreme Builders, Inc. v. Redmiles, 250 Md. 446, 456, 243 A.2d 500, 505 (1968); Sagner v. Glenangus Farms, Inc., 234 Md. 156, 162, 198 A.2d 227, 280 (1964). 42 On MIE s final w aiver ground, we n ote that the record does not demonstrate that the City had the req uisite know ledge of th e allegedly viola tive uses of the Prope rty in the flex building space occurring afte r MI E pu rcha sed the Prope rty. There was no determination by the Circuit C ourt tha t the use s violate d the C ovena nts. Upon our examination of the record, we observe n othing dem onstrating cle arly that this is the case. E ven if the uses violated the Covenants, MIE did not prove satisfactorily that the C ity was awa re of them such that it could acquiesce in their existence. In fac t, evidence w as adduc ed by the City that n ot all tenancies on the Property are or were brought to the City s attention, including many, if not all, of those to which M IE refers in its fourth and fina l ground for establishing w aiver. MIE suggests tha t we shou ld uphold the Court of Special Appeals s limited remand to allow the Circuit Court to consider additional evidence on the w aiver argum ent. This is unwarranted. The intermediate appellate court permitted reconsideration of the waiv er defense solely because it was remanding the case on the question of th e Co venants validity. Because we find n o error in the C ircuit Court s analysis of the latter po int, no rema nd is necessary or warranted, obviating the exe rcise of discr etion by the interm ediate appe llate court in allowing consideration of further waiver evidence. D. The N on-Joinde r of The D ance Stud io MIE s final argum ent is that the C ity failed to join to its suit the Dance Studio, which it believes to be a necessary party. Maryland Code (1 974, 2006 Repl. Vol.), Courts & Judicial Proceedings Article, § 3-405(a)(1) requires that when declaratory relief is sought, 43 a person who has or claims any interest which would be affected by the declaration, shall be made a p arty. Further, M aryland Rule 2-211 pro vides, in relev ant part: (a) Persons to be joined. Except as otherwise provided by law, a person w ho is subject to service of process shall be joined as a party in the action if in the person's absence (1) complete relief cannot be accorded among those already parties, or (2) disposition o f the action m ay impair or impede the person's ability to pro tect a claimed interest relating to the subject of the action or may leave persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations by reason of the person's claimed interest. These rules are intended to assure that a person s rights are not adjudicated unless that person has had his day in court and to prevent multiplicity of litigation by assuring a determination of the entire controversy in a single proceeding. Bodna r v. Brinsfield , 60 Md. App. 524, 532, 483 A.2d 1290, 1295 (1984) (quoting Bender v . Dep t of P ersonnel, 290 Md. 345, 351, 430 A .2d 66, 69-70 (198 1)). MIE contends that the decla ratory judgme nt affects the Dance Studio s interest in its leasehold interest and use of a portion of the Property because the judgment stated that the Dance Studio is not a permitted use under the Covenants, the Annexation Agreement, and the Amen dments thereto . . . . Thus, MIE argues, because the Dance Studio was not joined as a party defen dant to the law suit by the City, the objectives of the joinder requirement were frustrated. The Court of Special Appeals found implicitly that the Dance Studio had a 44 cognizab le interest in the su it, a conclusion which w e accept arguendo, but opined that the non-joind er was no t fatal. In excusing the non-joinder, the Court of Special Appeals applied an exception to the joinder requirement: persons who are directly interested in a suit, and have knowledge of its pendenc y, and refuse o r neglect to ap pear and a vail themse lves of their rights, are concluded by the proceedings as effectually as if they were named in the record. Bodnar, 60 Md. App. at 532, 483 A.2d at 1295 (quoting Williams v. Snebly, 92 Md. 9, 21, 48 A. 43, 48 (1900)). T he interme diate appella te court con cluded tha t the Danc e Studio had its day in court by virtue of the fact that: (1) th e Studio w as aware that the litigation re lated to its interest, and (2) the owner and director of the Studio testified at the trial. MIE disagrees with the intermediate appellate court s interpretation of this exception, given the facts of the present case. Specifically, MIE argues that the Dance Studio did not get to offer evidence substantiv ely about the issues in the suit. It contends that the scope of the issues expanded at trial to include the question of whether the Studio s use comported with the zoning c lassi fica tion for the Prope rty. We agree with the Court o f Special A ppeals s co nclusion tha t the Danc e Studio fa lls within the non-joinder exception discussed in Bodnar. In doing so, we identify as the controlling principles the non-joined party s knowledge of the litigation affecting its interest and its ability to join that litigation, but failure to do so. In several cases applying the exception recognized in Bodnar, the Court relied on the fact that the non-join ed party 45 participated as a witness in the litigation affecting its interest, emphasizing the non-joined party s knowledge of the relev ant litigat ion. See, e.g., Reddick v. State, 213 Md. 18, 30, 130 A.2d 762, 768 (1957); Rody v. D oyle, 181 Md. 195, 200, 29 A.2d 290, 293 (194 2); Snavely v. Berman, 143 Md. 75, 77, 121 A. 842, 84 3 (1923); Abramson v. Horner, 115 Md. 232, 246, 80 A. 907, 912 (1911). MIE incorrectly attempts to extend these illustrations of knowledge (for a witness in a suit would surely be aware of its existence) into a requirement that not only must the non-joined party have testified at the relevant trial, but also must have testified substantive ly about its interest as affected by the suit. The exception is more general, however, focusing primarily on the non-join ed party s aw areness of a lawsuit dire ctly affecting its interests and that non-joined party s failure to ente r the suit desp ite its ability to do so. MIE treats the figure of s peech d ay in court too literally. There is no requirement that the non-joined party have been a witness, much less have testified on the issues affecting its interest. Accordingly, we are not persuade d by MIE s attempts to distinguish Reddick and Snavely on this basis. In the present case, Cheryl Brennan, the owner of the Dance Studio, by virtue of having submitted a n affidav it and testifying at trial in the present case, undeniably was aw are of the law suit aff ecting h er intere sts. With that k nowled ge, she had the oppor tunity to seek counsel and join the lawsuit. She did not do so. Thus, the well-recognized exception to nonjoinder binds the Danc e Studi o to the C ircuit Co urt s jud gmen t. Having reviewed the points of error raised by MIE, we conclude that the Circuit Court did not ab use its discretion in 46 rendering a declaration of the con tinuing vitality of the Covenants and granting conforming injunctiv e reli ef in favo r of the C ity. JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH DIRECTION TO AFFIRM THE JUDGMENT OF THE CIRCU IT COURT FOR PRINCE GEORGE S COUNTY; COSTS IN THIS C OURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY MIE. 47

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