Esslinger v. Baltimore City

MOTZ, Judge. This case involves application of a number of res judicata and collateral estoppel principles. (i) On July 30, 1986, appellant, Donald F. Esslinger, a home owner in Baltimore City, applied to the City’s Board of Municipal and Zoning Appeals (Board or Zoning Board), for a conditional use permit to retain a free-standing (8 foot by 9V2 foot) satellite dish of solid material, which he had already installed on his property. After giving public notice and inspecting the premises, the Board held a hearing on October 28, 1986, in which it heard testimony from Esslinger and those opposing the application.

On November 5, 1986, the Board issued a written opinion disapproving the application. The Board explained its reasoning as follows: ⁶¹¹ The Board, after having given due regard and consideration to the nature and condition of all the adjacent uses and structures and the facts in this case, is of the opinion that the application should be rejected. The Board is in agreement with the protestants that the dish is unattractive on the site at its present location and are concerned with the disruption to the telephone and television signals of the neighbors. The Board, in making this determination, has considered the nature of the proposed site, including its size and shape, the traffic patterns, the surrounding area, the proximity to dwellings, churches, etc., the accessibility of the premises for fire and police protection; the accessibility of light and air, etc.; the type and location of adequate utilities, the preservation of cultural and historic landmarks, the Urban Renewal Plans approved by the Mayor and City Council, all standards and requirements contained in this Ordinance, the intent and purpose of this Ordinance as set forth in Chapter 1, and all other matters considered to be in the interest of the general welfare of the community.

With due consideration to the guides and standards set forth in Sections 11.0-5a and 11.0-5c of the Zoning Ordinance and to the reports of the several City Departments as required by the Zoning Ordinance, the Board finds that the proposed use would menace and endanger the public health, security and general welfare. Esslinger then appealed to the Circuit Court for Baltimore City where he claimed, inter alia, that the Zoning Board’s decision was not supported by substantial evidence and that the Zoning Ordinance, Article 30 of the Baltimore City Code, as it related to satellite dish antennas (the Satellite Dish Ordinance), had been pre-empted by 47 C.F.R. § 25.104 (1986), a Federal Communications Commission Regulation (FCC Regulation). After a hearing on December 14, 1987, at which Esslinger was represented by counsel, the circuit court found that there was substantial evidence to support the Board’s decision and that the Satellite Dish Ordinance had not been pre-empted by the FCC Regu ⁶¹² lation. The grounds for the latter decision are not absolutely clear.

The circuit court apparently found that the Satellite Dish Ordinance did not improperly differentiate between satellite receive-only antennas and other antennas and that, in any event, it met the reasonableness tests set forth in the FCC Regulation. Esslinger did not appeal that decision. On February 21, 1989, Esslinger applied to the Board a second time; this time seeking approval to erect the identical satellite dish at the identical location. Before the Board, Esslinger raised the issue of pre-emption and submitted copies of the FCC Regulation for the Board’s review.

After considering the evidence before it, the Board on February 28, 1989, again disapproved Esslinger’s application, finding that the antenna failed to meet the conditional use standards of the Satellite Dish Ordinance and that it would detrimentally affect the general welfare of the community. Esslinger did not appeal the Board’s decision. Neither res judicata nor collateral estoppel was raised at the hearing before the Board and these principles were in no way relied upon by the Board in disapproving Esslinger’s application. On July 16, 1991, Esslinger made a third attempt to obtain Board approval for his proposed satellite dish.

Esslinger again argued that the Satellite Dish Ordinance had been pre-empted by the FCC Regulation. Once again, however, the Board disapproved Esslinger’s application for a permit. Esslinger appealed that decision to the Circuit Court for Baltimore City, raising for the second time before that court, the issue of pre-emption. The City filed a motion for summary judgment, arguing that there were no disputed issues of fact and that it was entitled to judgment as a matter of law on, inter alia, res judicata and collateral estoppel grounds.

The trial court refused to grant summary judgment on res judicata or collateral estoppel grounds but instead found that the Satellite Dish Ordinance was not pre-empted by the FCC Regulation and that there was evidence to support the Board’s decision and so affirmed that decision. Esslinger appealed to this Court and, ⁶¹³ on February 22, 1993, in an unreported opinion we held that the circuit court erred in refusing to grant summary judgment on res judicata grounds and so reversed and remanded for an entry of summary judgment in favor of the Board on that basis. Donald F. Esslinger v. Bd. of Municipal and Zoning Appeals of Baltimore City, No. 826 September Term 1992. On December 5, 1991, Esslinger filed a complaint in the United States District Court for the District of Maryland against the Board and various departments and employees of the City seeking declaratory and injunctive relief on these same issues.

The basis for this complaint was the 1989 application for, and denial of, a conditional use permit. The City filed a motion to dismiss based on grounds of abstention, res judicata, and collateral estoppel. After a hearing, the District Court, on June 8, 1992, dismissed Esslinger’s suit on abstention grounds. The record does not reflect the rationale for the abstention ruling but it well may have been the status of Esslinger’s appeal of the 1991 Zoning Board decision, i.e., that action was pending in the state courts.

On February 19, 1991, Esslinger filed the complaint in the case at hand, which is, except for two paragraphs alleging federal jurisdiction and venue, identical to the complaint dismissed on abstention grounds by the federal court. The basis for it is, once again, the 1989 application for, and denial of, a conditional use permit. In his complaint, Esslinger alleges that this is a “civil rights action brought pursuant to 42 U.S.C. § 1983 to redress violations of Plaintiffs rights under the first, ninth and fourteenth amendments to the United States Constitution.” Specifically, he “challenges Defendants’ refusal to allow him to erect and maintain a satellite receiving dish” on “his residential premises in Baltimore City” and maintains that portions of the Baltimore Zoning Ordinance “which classify free-standing satellite receiving dishes ... as conditional uses” violate the First Amendment “right to receive information,” the Fourteenth Amendment rights to due process and equal protec ⁶¹⁴ tion, and are pre-empted by the FCC Regulation and so violate the Supremacy Clause. Esslinger seeks declaratory and injunctive relief, compensatory and punitive damages and attorneys fees.

The City filed a motion to dismiss the entire action as barred by res judicata and collateral estoppel. On May 11, 1992, the circuit court granted the City’s motion to dismiss. On appeal, Esslinger raises five questions, which we have reordered as follows: 1. Whether a plaintiff suing under 42 U.S.C. § 1983 must exhaust State remedies prior to filing suit. 2.

Whether, if indeed State remedies must be exhausted before suing under 42 U.S.C. § 1983 , such remedies include judicial review of an administrative agency’s decision. 3. Whether the Defendants waived the defenses of res judicata and collateral estoppel (1) by their laches in failing to set up the defenses, (2) by joining issue on the very questions previously litigated, and (3) by voluntarily opening an investigation of matters which they might have claimed to be concluded. 4. Whether the defense of res judicata is inapplicable because Esslinger’s 1992 civil rights action involved different evidence and a different res from his previous zoning case. 5. Whether the Court of Appeals’ decision in Olsen v. Mayor and City Council of Baltimore, 321 Md. 324 (1990), constituted an “intervening change in the applicable legal context” within the meaning of Restatement (Second) of Judgments § 28(2) (1980) so as to permit relitigation of Esslinger’s previous challenge to Baltimore City’s Satellite Dish Ordinance.

(ii) It is now clearly established that a plaintiff suing under 42 U.S.C. § 1983 — either in state or federal court— need not exhaust his administrative remedies prior to bring ⁶¹⁵ ing his § 1983 action. See Felder v. Casey, 487 U.S. 131, 146-150 , 108 S.Ct. 2302, 2311-2313 , 101 L.Ed.2d 123 (1988); Patsy v. Bd. of Regents, 457 U.S. 496, 508-512 , 102 S.Ct. 2557, 2563-2565 , 73 L.Ed.2d 172 (1982). See also Maryland-National Cap. Park & Planning Comm’n v. Crawford, 307 Md. 1 , 12-15 (1986).

Accordingly, even if exhaustion of administrative remedies ordinarily requires a party to seek judicial review of the decision of an administrative agency, Esslinger was not required to seek judicial review of the 1989 Zoning Board decision prior to filing the present civil rights action under 42 U.S.C. § 1983 . (iii) Esslinger asserts that the principal defenses raised by the City, res judicata and collateral estoppel, were waived by the City’s failure “to raise them during the proceedings that culminated” in the 1989 Zoning Board proceedings. In other words, Esslinger asserts that, because in 1989 the Zoning Board did not sua sponte rely on the circuit court’s 1987 decision affirming the Zoning Board’s 1986 decision, the City has somehow waived its res judicata and collateral estoppel defenses, even though the 1989 Zoning Board decision was never appealed to or reviewed by a circuit court. We note initially that it is not at all clear that the City was a party before the Zoning Board; if it was not, it is hard to see how it could waive a defense.

Moreover, and perhaps more importantly, Esslinger has not cited any authority that holds that a res judicata or collateral estoppel defense is waived by failure to assert it before a Zoning Board, particularly when the initial action was decided more than a year before. The Baltimore City Zoning Ordinance provides that: If an application is disapproved by the Board, thereafter the Board shall take no action on another application for substantially the same proposal on the same premises until after 12 months from the date of the final determination by the Board or any Court of competent jurisdiction. ⁶¹⁶ Baltimore, Md., Code art. 30, § 11.0-3.h. (1983). It is well established that, in deciding an application, a zoning board is to consider all pertinent factors enumerated in the applicable zoning ordinance, see Heath v. Mayor and City Council of Baltimore, 187 Md. 296, 305 , 49 A.2d 799 (1946), and that a zoning decision is subject to revision if a change in factual circumstances is demonstrated.

See Cardon Investments v. Town of New Market, 302 Md. 77, 90-92 , 485 A.2d 678 (1984). In light of these principles and the language of § 11.0-3.h, it seems unlikely that the General Assembly intended to permit a Zoning Board to dismiss an application filed more than a year after the Board’s denial of a previous application on the ground that the previous decision had res judicata or collateral estoppel effect. If the defense could not have been successfully raised before the Board, the failure to raise it can hardly constitute waiver of it. Perhaps for these reasons, the Court of Appeals has not hesitated to hold res judicata applicable in a zoning context to bar a subsequent action, even though res judicata does not seem to have been not raised as a defense before the Zoning Board.

See, e.g., Heller v. Segner, 260 Md. 393 , 272 A.2d 374 (1970); Whittle v. Bd. of Zoning Appeals of Baltimore Cty., 211 Md. 36 , 125 A.2d 41 (1956). (iv) Esslinger asserts that, if not waived, the defense of res judicata is, in any event, inapplicable here. He argues that his present § 1983 action involves different evidence and a different res from that involved in his previous zoning case. Under Maryland law, the requirements of res judicata or claim preclusion are: 1) that the parties in the present litigation are the same or in privity with the parties to the earlier dispute, 2) that the claim presented in the current action is identical to the one determined in the prior adjudication, and 3) that there was a valid final judgment on the merits. ⁶¹⁷ Cassidy v. Bd. of Education, 316 Md. 50, 57 , 557 A.2d 227 (1989).

If all three elements are present then the final judgment in the first claim bars the entire subsequent claim. There is no dispute here as to the first or third elements: the same parties or their privies are involved in both the zoning case and the present action and there was a final judgment in the zoning case. Both of Esslinger’s arguments challenging the applicability of res judicata focus on the second element: whether the two claims are identical. His principal argument on this point is that they are not identical because the “same evidence” will not support his former zoning case and his present civil rights action.

Specifically, he asserts that, in addition to the evidence needed to prevail in the zoning case, in this civil rights action he will need to present evidence to prove (1) defendants were acting under “color of state law,” (2) he was deprived of a right “secured by the U.S. Constitution” and (3) “damages and attorneys fees.” Thus, Esslinger argues, because the “same evidence” will not support both actions, the two claims are not identical and res judicata does not apply. The most essential difficulty with this argument 1 is that six years ago the Court of Appeals concluded that the “same evidence” test “improperly narrow[s] the scope of a ‘claim’ in the preclusion context.” Kent Cty. Bd. of Educ. v. Bilbrough, 309 Md. 487, 494 , 525 A.2d 232 (1987). The Court, in a careful opinion, authored by Judge Rodowsky, approved a different approach for determining a “claim” for preclusion purposes, the “transaction” approach as set forth in § 24 of the Restatement (Second) of Judgments (1982) (hereinafter “Restatement”).

See Bilbrough, 309 Md. at 498 , 525 A.2d 232 . Section 24 provides: ⁶¹⁸ (1) When a valid and final judgment rendered in an action extinguishes the plaintiffs claim pursuant to the rules of merger or bar (see §§ 18, 19), the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. (2) What factual grouping constitutes a “transaction”, and what groupings constitute a “series”, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage. Under the “transaction” approach, it is clear that the claim in the 1987 zoning case is identical to the present claim.

Indeed, it is undisputed that both arise from precisely the same transaction, i.e., Esslinger’s attempt to place a free-standing satellite dish on his property. The facts of the two actions are thus related in “space, origin and motivation.” Both involve Esslinger’s request for and the Zoning Board’s denial of a conditional use permit to allow the same satellite dish on the same property. The only difference between the 1987 zoning action and the 1992 civil rights action is that the latter protests a 1989 Zoning Board decision not to grant Esslinger a conditional use permit so that he could erect the dish and the former involved a 1986 Zoning Board decision not to grant Esslinger a conditional use permit so that he could retain the same dish. 2 Mary ⁶¹⁹ land courts have long recognized that such small differences in the posture of the zoning request do not prevent application of res judicata. See, e.g., Century I Condominium Ass’n, Inc. v. Plaza Condominium Joint Venture, 64 Md.App. 107, 113-14 , 494 A.2d 713 (1985) (earlier decision governing height and conditional use exceptions acted as res judicata in later case involving building permit for same structure).

Accordingly, the claim presented in this civil rights action is identical to that determined in the prior adjudication; all three res judicata elements are thus present. When this is so “a plaintiff may not relitigate a claim for relief by switching legal theories.” Bilbrough, 309 Md. at 500 , 525 A.2d 232 (quoting IB James W. Moore et al., Moore’s Federal Practice ¶ 0.410[1] at 361 (2d ed. 1984)). Both § 24 of the Restatement and the Court of Appeals in approving the transactional test set forth there, however, make it clear that “[ejquating claim with transaction” is “justified only when the parties have ample procedural means for fully developing the entire transaction in the one action going to the merits to which the plaintiff is ordinarily confined.” Bilbrough, 309 Md. at 499 , 525 A.2d 232 (quoting Restatement § 24 cmt. a). Accordingly, we turn to the question of whether the parties did have “ample procedural means” for fully developing the entire transaction in the 1987 zoning case. ⁶²⁰ (v) The principal Maryland discussion of the question of whether the “procedural means” in the initial action were “ample” to permit the parties to develop fully the entire transaction is contained in Shum v. Gaudreau, 317 Md. 49 , 562 A.2d 707 (1989).

See also Rowland v. Harrison, 320 Md. 223 , 577 A.2d 51 (1990). In Shum , a tenant asserted that a landlord’s action in the circuit court “for the cost of repairing damage done to the leased premises” was barred by the landlord’s earlier action “for repossession of premises and unpaid rent,” which was within the exclusive jurisdiction of the Maryland District Court. Shum, 317 Md. at 51 , 562 Á.2d 707. Because “a summary ejectment action is limited to a judgment for repossession of premises and rent actually due” the landlord “could not have joined a ... general contract damages claim in that proceeding.” Id. at 59 , 562 A.2d 707 .

For this reason, the Shum court held the summary ejectment action did not afford the landlord “ample procedural means for developing the entire transaction” and so did not bar the second action. Id. at 59-60 , 562 A.2d 707 . Tellingly, however, the Court further noted that some of the claims made-in the second action, i.e., for septic tank maintenance, “are deemed additional rental”; since the District Court did have jurisdiction in the summary ejectment action over claims for rent, these claims were “barred by claim preclusion.” Id. at 66 , 562 A.2d 707 . Here the initial action was a Zoning Board decision, affirmed in an on-the-record appeal by the circuit court, in which Esslinger asserted, inter alia, that he should have been permitted to place a satellite dish in his yard and the Satellite Dish Ordinance under which he was denied this permit was itself contrary to federal law.

The present action is a civil rights action brought pursuant to 42 U.S.C. § 1983 , in which Esslinger makes precisely the same assertions. The fact that the present action is brought pursuant to § 1983 does not make res judicata principles automatically inapplicable. Indeed, it is settled that even a federal court must hold that a § 1983 claim is barred by a prior ⁶²¹ decision of a state court, if the courts of the state would have given the prior decision preclusive effect. Migra v. Bd. of Education, 465 U.S. 75, 85 , 104 S.Ct. 892, 898 , 79 L.Ed.2d 56 (1984).

See also University of Tennessee v. Elliott, 478 U.S. 788, 796 , 106 S.Ct. 3220, 3225 , 92 L.Ed.2d 635 (1986). Although, the extent to which principles of res judicata and collateral estoppel apply to unreviewed administrative decisions may be “unclear under Maryland law,” compare Sugarloaf Citizens Ass ’n v. Northeast Md. Waste Disposal Auth., 323 Md. 641 , 658 n. 13, 594 A.2d 1115 (1991) with Batson v. Shiflett, 325 Md. 684, 701-708 , 602 A.2d 1191 (1992), it is crystal clear that a final judgment of a circuit court affirming a decision of an administrative agency, like the 1987 judgment here, is entitled to full preclusive effect. See, e.g., Fertitta v. Brown, 252 Md. 594, 599 , 251 A.2d 212 (1969); Woodlawn Area Citizens Ass’n v. Comm’s for Prince George’s Cty., 241 Md. 187, 195-96 , 216 A.2d 149 (1965); Lawrence N. Brandt, Inc. v. Montgomery Cty., 39 Md.App. 147, 157-159 , 383 A.2d 688 , cert, denied, 282 Md. 735 (1978). Thus, the initial action here is conclusive “not only as to all matters that have been decided in the original suit, but as to all matters which with propriety could have been litigated in the first suit.” Rowland, 320 Md. at 229 , 577 A.2d 51 , and numerous cases cited therein (emphasis in original).

In the initial zoning action, Esslinger did not assert “all matters” that he now asserts. Specifically, he did not assert that the Satellite Dish Ordinance violated the First or Fourteenth Amendments or 42 U.S.C. § 1983 , nor did he request compensatory and punitive damages and attorneys fees, all of which he now claims. Certainly, Esslinger could have raised all the constitutional claims and the § 1983 claim 3 in the circuit court in 1987 as a basis for reversing ⁶²² the Zoning Board’s 1986 decision, obtaining a license for his dish and having the zoning ordinance declared unconstitutional. See Baltimore, Md., Code art. 30, § 11.0-3.1.

(1983) (a person aggrieved by the decision of the Zoning Board can appeal to the circuit court on the ground that the decision was “unlawful, in whole or part, and specifying the unlawful grounds thereof”); Maryland