Esslinger v. Baltimore City

• Citation: 95 Md.App. 607,622 A.2d 774
• Decision Date: 01 September 1992
• Docket Number: No. 1125,1125
• Parties: Donald F. ESSLINGER v. BALTIMORE CITY, Maryland et al. ,
• Court: Court of Special Appeals of Maryland

Page 607

95 Md.App. 607

622 A.2d 774

Donald F. ESSLINGER v. BALTIMORE CITY, Maryland et al.

No. 1125, Sept. Term, 1992.

Court of Special Appeals of Maryland.

April 5, 1993.

Thomas A. Bowden (Anthony P. Palaigos and Blum, Yumkas, Mailman, Gutman & Denick, P.A., on the brief), Baltimore, for appellant.

Sandra R. Gutman, Principal Counsel (Neal M. Janey, City Sol., on the brief), Baltimore, for appellee.

Argued before MOYLAN, FISCHER and MOTZ, JJ.

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 9 1/2 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 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 Regulation. 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 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 Plaintiff's 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 protection 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 bringing 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)

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