183 A. 531 | Md. | 1936
This is an appeal in a third proceeding on applications for a use of a lot of ground in Baltimore City which the buildings engineer and the board of zoning appeals refused in each instance. The appellee, who was the applicant, owns a lot in a residential use district of the city, and has leased it to the United States for a substation post office there. A first application for a permit for the use, made in January, 1933, was refused because it was *247
considered to be a business use, prohibited for such a district by the zoning ordinance of the city. In October of the same year the second application was made by the appellee for the same use, and from the refusal in that instance, on the same ground, an appeal was prosecuted to the Baltimore City Court, as permitted by law. Applestein v. Baltimore,
By the Act of 1935, ch. 448, an appeal to this court in proceedings under the zoning ordinance was allowed, and on September 20th, 1935, the owner made her third application for the same use. It is conceded that there had been no change in the proposal, either in the use planned, or in the neighborhood conditions; and there was none in the relevant ordinances. The Baltimore City Court, on appeal, however, this time reversed the action of the board of zoning appeals. The city now appeals to this court.
The effect of the decision on the earlier appeal to the Baltimore City Court presents a foremost question. No appeal having been allowed from that decision, it is questioned whether the rule of res judicata ordinarily applicable could give it a binding effect, now that the case has reached this court under the Act of 1935. The rule is not so qualified. It is a rule limiting parties to one final decision from the courts on one controversy between them. "An existing, final judgment or decree rendered upon the merits, and without fraud or collusion, by a court of competent jurisdiction, upon matters within its jurisdiction, is conclusive of the rights of the parties or their privies, in all other actions or suits in the same or any other judicial tribunal of concurrent jurisdiction, on *248
the points and matters in issue in the first suit." Christopherv. Sisk,
The fact that the decision on the earlier application was rendered by a court of inferior jurisdiction does not detract from its binding force under the rule, when the controversy is brought upon a further appeal. A right of further appeal was not necessary to constitute the earlier decision a complete, final adjudication. In Johnson Steel Street Rail Co. v. Wharton,
The Baltimore Zoning Ordinance, No. 1247, approved March 30th, 1931, par. 32 (d), provides that "If an application is disapproved by the Board of Zoning Appeals, thereafter the Board shall take no further *249 action on another application for substantially the same proposal, on the same premises, until after six months from the date of such last disapproval." The latest application by the owner here was made after the lapse of six months from the date of the preceding one, and it is urged that this clause is authority for repeated applications on the same facts, with the same right of appeal to the courts; and it is contended that the right of another appeal could only signify a repeated examination of the questions raised by the application. This means that the rule of res judicata is dispensed with by the terms of the ordinance. For the decision of this case we need not determine exactly what was within the contemplation of the clause in its reference to subsequent submission of substantially the same application to the board of zoning appeals. We do not interpret it to dispense with the rule, so as to provide that, after an owner has submitted to the courts on appeal the questions of the character and classification of his use, and the correctness of its exclusion, and has obtained a decision that it is a business use, rightly excluded from the particular neighborhood, he can continue asking every six months for judicial decisions on exactly the same questions. If that were the meaning, this court, under the Act of 1935, as well as the trial court, would be required to examine and decide the case as often as the owner might wish to bring it up, allowing six months' intervals in his activities. The words seem to us to require no such interpretation, and we think it would be unreasonable to attribute that purpose to the Legislature.
Our decision is that, on any repeated application after the first decision on appeal below, the owner must take it as settled that the proposed use is a business use, excluded by the existing ordinance from the neighborhood, as it was at the time of the decision in the first appeal to the trial court. This disposes of all questions now presented, for they were all involved then in the general question of exclusion of the use, whether they were actually raised or not. "It is not necessary that issue should have been taken on the precise point which is *250
controverted in the second case. * * * A decree is res judicata
in respect to all matters of defense existing, and which were available to the defendant at its date." Trayhern v. Colburn,
Judgment reversed, with costs and order of the board of zoningappeals reinstated. *251