Jack v. Foster Branch Homeowners Ass'n No. 1, Inc.

Adkins, J., delivered the opinion of the Court. In 1976, appellant Dr. Joseph Jack sought a variance from the off-street parking requirements of the Harford County zoning ordinance. The zoning hearing examiner denied the request. The Board of Appeals reversed.

The Circuit Court for Harford County reversed the Board and thus denied the variance. In 1980, Dr. Jack applied for a modification, reduction or waiver of the off-street parking requirements. The hearing examiner granted the application. The Board of Appeals affirmed.

Once again, the Circuit Court for Harford County reversed, this time on the ground that Dr. Jack’s second application was barred by the doctrine of res judicata. Whether the earlier circuit court decision produced an estoppel by judgment is the issue on appeal. We think it did not, and reverse. ³²⁷ Facts Dr. Jack is a physician who maintains his professional office in the garage portion of his residence. Under § 8.031 of the Harford County zoning ordinance, a physician’s office is a permitted accessory use in the zone in which Dr. Jack’s home is located.

Section 16.021 of the ordinance requires eight off-street parking spaces per physician to be furnished in connection with any physician’s office. Unable or unwilling to supply eight parking spaces on his property, Dr. Jack in 1976 sought a variance, under §§ 20.47, 20.471, and 20.472 of the ordinance, to permit him to operate his office with only four off-street parking spaces. These sections provide: 20.47. VARIANCES.

Where, by reason of the exceptional narrowness, shallowness or unusual shape of a specific piece of property on the effective date of this Ordinance, or by reason of exceptional topographic conditions, or other extraordinary situation or condition of such piece of property, or the use or development of property immediately adjoining the piece of property in question, the literal enforcement of the requirements of this Ordinance would involve practical difficulty or would cause unnecessary hardship — unnecessary to carry out the spirit and purpose of this Ordinance — the Board shall have power upon appeal in specific cases, filed as hereinbefore provided, to authorize a variance from the terms of this Ordinance, so as to relieve such hardship, and so that the spirit and purpose of this Ordinance shall be observed and substantial justice done. In authorizing a variance, the Board may attach thereto such conditions regarding the location, character and other features of the proposed structure or use as it may be necessary in the interest in the furtherance of the purposes of the Ordinance and in the public interest. In authorizing a variance, with attached conditions, the Board shall ³²⁸ require such evidence and guarantee or bond as it may deem to be necessary, that the conditions attached aré being and will be complied with. 20.471 No such variance in the provisions 'or requirements of this Ordinance shall be authorized by the Board unless the Board finds, beyond reasonable doubt, that all the following facts and conditions exist: a. That there are exceptional or extraordinary circumstances or conditions applying to the property in question, or to the intended use of the property, that do not apply generally to other properties or classes of uses in the same zoning district. b.

That such variance is necessary for the preservation and enjoyment of substantial property rights possessed by other properties in the same zoning district and in the same vicinity. c. That the authorizing of such variance will not be of substantial detriment to adjacent property, and will not materially impair the purposes of this Ordinance or the public interest. 20.472 No grant of a variance shall be authorized unless the Board specifically finds that the condition or situation of the specific piece of property, or intended use of said property, for which variance is sought — one or the other in combination — is not of so general or recurrent a nature to make reasonably practicable the formulation of a general regulation for such conditions or situation. Electing to proceed without counsel, Dr. Jack appeared before the hearing examiner. No transcript of that hearing appears in the record in this case, but the hearing examiner found that: Under Section 20.47 of the Zoning Ordinance of Harford County, an applicant must show that there is some special and unusual topographic condition of his property or that it is exceptionally narrow, ³²⁹ shallow or of an unusual shape or of an extraordinary situation or condition or of the use or development of property immediately adjoining the pieces of property in question which makes a practical difficulty or causes unnecessary hardship.

The intention of the ordinance is that the hardship caused to the owner is from the character of the land itself.... The criterion used for determining hardship is whether the restriction when applied to the property in the setting of its environment is so unreasonable as to constitute an interference with all reasonable rights of use... . Unnecessary hardship which will support the granting of a variance must relate to the land and not the owner. .. . There is not a scintilla of evidence in this case that the land and residence cannot be used as a residence but only that it cannot be used as a residence and office without the requisite number of parking spaces.

Here financial hardship is not sufficient nor is the simple fact that an applicant will be unable to realize a business advantage without [a variance]. The facts of this case as presented by the Applicant do not meet the burden of proof necessary for the granting of a variance and the request is, therefore, denied. Dr. Jack then retained counsel (not his counsel in this appeal) and appealed to the Board of Appeals (the County Council). The Board found that Dr. Jack was not legally required to have eight off-street parking spaces.

Without making specific findings of fact, that agency further found that Dr. Jack had met the requirements for a variance specified in § 20.471 of the ordinance. The Board of Appeals thereupon granted the variance. ³³⁰ Neighbors of Dr. Jack appealed this decision to the Circuit Court for Harford County. Dr. Jack’s lawyer failed to file an answer to the petition of appeal, Maryland Rule B9, and did not participate in the appeal. The circuit court reversed the Board of Appeals and denied the variance.

It held that the zoning ordinance did require eight off-street parking spaces for a .physician’s office and that the hearing examiner’s exposition of the law had been correct. Although the court found: It is true that the evidence revealed that Dr. Jack’s activities did no appreciable harm, that any street parking traceable to them did not pose a real problem, that blacktopping his front yard to provide the necessary space might constitute a cure worse than the disease, and that his availability resulting from the location of his office in a residential area was probably more in the public interest than the strict enforcement of the Zoning Ordinance.. . it, nevertheless, found that a variance should not have been granted, for the reasons stated by the hearing examiner. It reversed the Board and denied the variance. From the judgment of the circuit court, which was entered in 1979, Dr. Jack took no appeal.

Instead, equipped with his present counsel, he in 1980 filed an application for modification, reduction, or waiver of the off-street parking requirements. This application was filed under § 16.025 of the ordinance, rather than under the variance section which had provided the basis for the 1976 application. Section 16.025 provides: 16.025 The Board of Appeals may authorize, subject to the provisions of Section 20.4, a modification, reduction or waiver of the foregoing requirements, [relating to off-street parking] if it should find that in the particular case appealed, the peculiar nature of the residential, business, trade, industrial or other use, or the exceptional shape or size of the property or other exceptional situation or condition, ³³¹ would justify such modification, reduction or waiver. As he had in 1976, Dr. Jack again asked for permission to operate his office with less than eight off-street parking spaces.

The hearing officer held that § 16.025 was less restrictive than §§ 20.47 and 20.471 because under it Dr. Jack would be entitled to a modification of the off-street parking requirements "because of the peculiar nature of the residential business ... or otherwise, or because of the exceptional shape or size of the property, or other exceptional situation or condition.” 1 She found "nothing exceptional about the shape of Dr. Jack’s property” and that "there is nothing peculiar in the nature of his business....” But she also found "an exceptional situation or condition” in that Dr. Jack’s property is simply not large enough to accommodate an off-street parking area in the rear of his house because of the extreme slope in his rear yard.... In addition . . . there was sufficient testimony . .. that there is sufficient on-street parking on Haverhill Road to accommodate the increase in parking which may be generated as a result of Dr. Jack’s medical practice. After the Board of Appeals ratified and adopted the entire recommendation of the hearing examiner, another visit to the Circuit Court for Harford County ensued. In 1982, the court reversed the Board and denied the relief requested by Dr. Jack.

The basis for the judgment was that the previous circuit court decision was res judicata. The court said: In applying the law to this case . .. there is no evidence in the record to show any substantial change in conditions [between the first judgment ³³² and the second application], as required by Marshall v. Fitzgerald [ 47 Md. App. 319 , 423 A.2d 967 (1980), cert. den. 289 Md. 737 (1981)]. The previous decision, in Case No. 2109, involved the same basic issue whether Dr. Jack could operate his medical practice in his home, as an accessory use, without complying with the off-street parking requirements. The decision in that case was adverse to him on that issue, and in the absence of a substantial change in conditions is a bar to further litigation on this same issue.

Estoppel by Judgment In this case, as in Brandt v. Montgomery County Comm, on Landlord-Tenant Affairs, 39 Md. App. 147 , 383 A.2d 688 , cert. den. 282 Md. 735 (1978), we are dealing with the effect of a circuit court judgment on a subsequent administrative proceeding. Thus, we need not examine the decisions on the application of the doctrine of res judicata to the decisions of administrative agencies, 2 or those relaxing certain aspects of the doctrine with respect to administrative decisions under some circumstances, Cecil County v. Racine, 24 Md. App. 435 , 332 A.2d 306 (1975). As Judge Wilner pointed for the Court in Klein v. Whitehead, 40 Md. App. 1 , 389 A.2d 374 , cert. den. 283 Md. 734 (1978), res judicata, and the related doctrine of collateral