Gertz v. Anne Arundel County

• Decision Date: 01 September 1994
• Docket Number: No. 13,13
• Citation: 339 Md. 261,661 A.2d 1157
• Parties: Robert E. GERTZ v. ANNE ARUNDEL COUNTY, Maryland. ,
• Court: Maryland Court of Appeals

Page 261

339 Md. 261

661 A.2d 1157

Robert E. GERTZ v. ANNE ARUNDEL COUNTY, Maryland.

No. 13, Sept. Term, 1994.

Court of Appeals of Maryland.

July 21, 1995.

Susan S. James Mayer (James L. Mayer, on brief), Columbia, for petitioner.

Francis M. Gasperich, Crownsville, for amicus curiae.

Judson P. Garrett, Jr., County Atty. (Robert M. Pollock, Sr. Asst. County Atty., on brief), Annapolis, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

RAKER, Judge.

In this case we are asked to decide whether the conduct of Anne Arundel County in enacting and enforcing an ordinance regulating sanitary landfills, passed as emergency legislation after a judgment in favor of a landowner against Anne Arundel County, gives rise to a cause of action under 42 U.S.C. § 1983 (1988). We must also decide whether, under the doctrine of res judicata, the judgment bars Anne Arundel County from subsequently applying the ordinance to landfilling activity on the property. We answer both questions in the negative.

I.

This appeal arises out of an action for declaratory and other relief filed by Robert E. Gertz ("Gertz") in the Circuit Court for Anne Arundel County. He sought a declaratory judgment that Bill No. 28-90 ("the Ordinance"), entitled "AN EMERGENCY ORDINANCE concerning: Zoning and Environmental Health--Applications for Sanitary Landfills, including Rubble Landfills," does not apply to his landfilling activity. In response, Anne Arundel County ("the County") filed a counterclaim, seeking an injunction to enjoin Gertz's activities until he obtained a landfill permit required by the Ordinance.

The landfilling activity at issue here involves Gertz's plan to establish a farm on his property in Anne Arundel County to be used as a horse boarding operation. To that end, he was filling ravines on his property with raw tree materials to establish pasture land. The fees he charged others to accept their organic fill served as his primary source of income.

The present suit over whether the Ordinance applies to Gertz is rooted in two earlier events. First, in 1985, the parties settled a grading permit dispute by entering into a Consent Agreement (the "Agreement") that allowed Gertz to dump, place, dispose, or otherwise store on his land loads from off-site of raw tree material for his farming and/or personal use. ¹ It stated in pertinent part:

1. That [Gertz], except for his and/or occupant's farming and/or personal use, shall not dump, place, dispose, or otherwise store any bulk loads from off-site of raw tree material consisting of root material, brush, tree limbs and stumps or otherwise dispose or store any rubble originating off-site on the Property which is the subject of this proceeding, unless otherwise or subsequently specifically permitted by law.

* * * * * *

7. That this Consent Order shall be binding on the heirs, assigns and successors in interest of the parties.

(Emphasis added.) Gertz and the County later agreed to a slight modification of the Agreement following continued disputes and erosion problems.

Second, in 1989, after a dispute arose between the parties as to the nature of Gertz's activities under the Agreement, the County filed a Petition for Contempt in the Circuit Court for Anne Arundel County. On December 21, 1989, the Honorable Martin A. Wolff found Gertz not in contempt, ruling that his landfilling activity was farming and permissible under the Agreement ("the Wolff decision").

On April 23, 1990, the County enacted Bill No. 28-90, "[a]n emergency ordinance," which amended Articles 14 and 28 of the Anne Arundel County Code and created new requirements for sanitary landfills. See Anne Arundel County Code Art. 14, §§ 4-101 to 4-109 1987-1993 (Environmental Health), Art. 28, §§ 1-101(55B), 1-101(57), 11-112(a), 12-242 1993-1994 (Zoning). Specifically, the definition of "sanitary landfill" was modified to include the planned disposal of "rubble." Id. art. 14, § 4-101(f)(2). Rubble is defined, in part, as stumps, brush, roots, and topsoil. See C.O.M.A.R. 26.04.07.11B, 26.04.07.13B. Thus, rubble includes the raw tree materials that Gertz was using to fill his ravines.

Gertz was advised in a letter dated June 4, 1990, that he was using his property as a "rubble landfill" and that he was required by the new Ordinance to obtain a sanitary landfill permit to continue this use. He then filed a declaratory judgment action, and the County responded with a counterclaim for injunctive relief.

After the circuit court issued an interlocutory injunction, Gertz filed an Amended Complaint containing four counts. Count One, claiming breach of contract (of the Consent Agreement), alleged that the County breached its contract with him by enacting legislation and pursuing injunctive relief that prohibited his landfilling activity. He averred that his activities constituted farming, as previously determined by the circuit court (the Wolff decision), and, as such, are his contractual right. In Count Two, specific performance, Gertz asked the circuit court to order the County to specifically perform its contract by allowing him to continue his filling activity without the necessity of a sanitary landfill permit. In Count Three, the declaratory judgment claim, Gertz asked the court to declare that "[his] fill activities are allowable by law and under the Contract; that [he] need not obtain a permit under Bill 28-90; that retroactive application of Bill No. 28-90 is a violation of [his] constitutional rights; [and] that requiring [him] to obtain a permit and [the County's] work stoppage is an unconstitutional taking of [his] property." Finally, in Count Four, invoking 42 U.S.C. § 1983, Gertz averred that as a result of the County's enactment of the Ordinance and subsequent injunctive action, the County unconstitutionally impaired his contract rights and violated his property rights under the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution and Article 24 of the Maryland Declaration of Rights. ²

Both parties filed motions for summary judgment. The circuit court, the Honorable Warren B. Duckett, Jr., presiding, found in favor of Gertz on the declaratory judgment count, and issued an order stating that Gertz had a vested right in his landfilling activities and that the County was estopped from enforcing the Ordinance against him ("the Duckett decision"). The interlocutory injunction was dissolved. Judge Duckett did not, however, address the breach of contract claim or the 42 U.S.C. § 1983 claim.

The matter was then set before the Honorable Bruce C. Williams, who granted final judgment in favor of the County. Judge Williams ruled that all of the issues in the case, liability as well as damages, were before him. Following an evidentiary hearing, and contrary to the ruling of Judge Duckett, Judge Williams concluded that the provisions of the Ordinance applied to Gertz. He ruled that the Consent Agreement did not permit Gertz to run a commercial landfill for profit, and found that his filling activity went beyond farming and constituted a commercial landfill operation. Finding no breach of the Consent Agreement, Judge Williams concluded there was no interference with a vested right and thus no proof of a claim under 42 U.S.C. § 1983.

Gertz appealed and, in an unreported opinion, the Court of Special Appeals held (1) that the 1989 Wolff decision was res judicata as to the issues before Judge Williams, and (2) that 42 U.S.C. § 1983 is inapplicable in this case. According to the intermediate appellate court, the only issues before Judge Williams were whether, as a result of the acts by the County damages could be awarded under either breach of contract or § 1983. The court reasoned that res judicata barred Judge Williams from reconsidering the nature of Gertz's filling activity, i.e., whether he was running a landfill or whether he was farming. The court concluded that because Gertz's activities had not changed since Judge Wolff found that he was farming, the only issue before Judge Williams was whether the agreement had been breached and, if so, the nature of the damages. Those issues were remanded to the circuit court. In addition, the Court of Special Appeals found that based on the law of the case doctrine, the Duckett decision that the Ordinance did not apply to Gertz precluded Judge Williams from revisiting that question. Having concluded that the Ordinance did not apply to Gertz, the court found § 1983 inapplicable in this case.

We granted Gertz's petition for a writ of certiorari on the 42 U.S.C. § 1983 claim and the cross-petition of the County on the applicability of the doctrine of res judicata. We shall first consider whether the Court of Special Appeals erred in holding that under the doctrine of res judicata, the Wolff decision barred the County from regulating the disposal of rubble on Gertz's farm.

II.

A.

Gertz's argument that res judicata applies in the case sub judice starts with the Wolff decision. In 1989, Judge Wolff ruled that Gertz was not in contempt of court. In his opinion, he stated:

Now, I can see where the County's going. The County's saying, you are running a landfill, not farming. That's basically the County's position, is it not?

Following the County's agreement, the court continued:

Okay. If that is the problem, then they can pass ordinances, requiring any off-site filling, whether it be for farming or not, over two truckloads, or whatever it be, needs a permit. But, they're trying to do it in another way, which is not reasonable. Because, at least in this case, he's allowed to farm. And, that was an exception that's cut off. So, if the County wants to stop this practice, it may be a good idea, if that's what they want to do, or to control the practice, is to have some ordinance which would control it. This Consent Agreement does not. It calls for farming.

(Emphasis added.)

Gertz argues that res judicata...