Opinion
CIVIL NO. H-00-3037
January 30, 2001
MEMORANDUM OPINION
In this civil action, two property owners have sued the City of Baltimore and six other named defendants, alleging that their constitutional rights were infringed when they were charged with certain zoning violations. Suit has been brought under 42 U.S.C. § 1983, and claims have been asserted under the First and Fourteenth Amendments to the United States Constitution. Besides the City of Baltimore, plaintiffs have named as defendants the City's Board of Municipal and Zoning Appeals (the "Zoning Board"), the City's Department of Housing and Community Development (the "DHCD"), Zoning Administrator David Tanner ("Tanner"), Baltimore City Police Officer Logan Starr ("Officer Starr"), Hunting Ridge Community Assembly, Inc. ("Hunting Ridge") and Louis J. Cantori ("Cantori").
The City of Baltimore, the Zoning Board, the DHCD and Tanner will herein be referred to collectively as the "Baltimore City defendants."
Pending before the Court are the following motions:
(1) Motion to dismiss of defendants Hunting Ridge and Cantori;
(2) Motion to dismiss of Officer Starr; and
(3) Motion to dismiss of the Baltimore City defendants.
Memoranda in support of and in opposition to these motions have been filed by the parties. A hearing has been held in open court. For the reasons stated herein, all three pending motions to dismiss will be granted.
IBackground Facts
Plaintiff Frederick R. McFadden and his wife Jean L. McFadden own and reside in a home located at 705 Dryden Drive in the City of Baltimore. Defendant Cantori is a neighbor, and defendant Hunting Ridge is an association of neighbors in the West Baltimore community where the MacFaddens reside. On a date before April 7, 2000, the MacFaddens placed three signs in their front yard. One sign was four feet by three feet in size and depicted Adolph Hitler and some of his followers with an accompanying short text. The second sign was one foot by one and one-half feet and contained a lengthy religious message. The third sign was one foot by three inches and contained the text "Why Worry? God's in Control." On April 7, 2000, defendant Tanner, acting as Zoning Administrator for the Department of Housing and Community Development of the City of Baltimore, issued a Violation Notice and Order requiring the MacFaddens to remove their signs within ten days. The zoning violations included "1. Free standing sign erected on premises — not permitted." and "2. Excessive signage, signage exceeds permitted sign area." That same day, April 7, 2000, defendant Starr, a Baltimore City Police Officer, issued a citation against the MacFaddens ordering them to remove the three signs in question and either pay a fine or appear for a hearing before the City's Baltimore Environmental Control Board. The Violation Notice advised the MacFaddens that they had the right to request administrative review of the notice within ten days. In particular, the notice stated: "Zoning violations may be appealed to the Board of Municipal and Zoning Appeals within ten days."
The document in question was entitled "Code Violation Notice and Order" and cited violations of various City Codes and Ordinances listed therein.
The MacFaddens did not thereafter remove the signs nor did they challenge the violation notice by appealing to the Zoning Board. Accordingly, the City of Baltimore filed on June 8, 2000 an action against the MacFaddens in the District Court of Maryland for Baltimore City, charging them with violating zoning provisions of the Baltimore City Code. Mayor and City Council of Baltimore v. MacFadden, et al., Case No. 22364-00 (Dist.Ct. of Md. for Balto. City). On January 11, 2001, a trial was held in that case before Judge Timothy Doory. After hearing testimony and argument, Judge Doory ruled in favor of the Mayor and City Council of Baltimore and ordered the MacFaddens to remove the larger sign erected by them. The MacFaddens have appealed that decision to the Circuit Court for Baltimore City.
The Baltimore City defendants concede that the two smaller signs do not violate provisions of the City Zoning Ordinance. Only the larger sign remains at issue.
This civil action was filed in this Court On October 10, 2000.
IIPlaintiffs' Claims
In Count 1 of the complaint, plaintiffs have charged defendants with violating their First Amendment rights to display on their property signs of a personal, political or religious nature. It is alleged that defendants Starr and Tanner acted unreasonably and intentionally and with reckless disregard for the MacFaddens' First Amendment rights. It is also alleged that the City of Baltimore acted unreasonably and with reckless disregard for the MacFaddens' rights by filing and maintaining a suit against the MacFaddens to enforce the zoning order. It is further alleged that defendants Cantori and Hunting Ridge, by conspiring and willingly participating in actions taken by the other defendants, also violated plaintiffs' First Amendment rights. In Count 2, it is alleged that defendants created and enforced unreasonable and unduly burdensome review procedures and thereby violated due process rights of the plaintiffs secured by the Fourteenth Amendment. According to Count 2, the City of Baltimore further violated plaintiffs' due process rights by using duplicitous enforcement mechanisms to prosecute the MacFaddens. In both Count 1 and Count 2, plaintiffs seek special damages, compensatory damages and punitive damages. In addition, plaintiffs ask the Court to award them attorneys' fees and costs. Counts 3 and 4 seek declaratory and injunctive relief. Plaintiffs ask this Court to declare that provisions of the Baltimore City Code and the City's zoning rules and regulations are unconstitutional and in violation of plaintiffs' First Amendment and due process rights. In addition, plaintiffs ask this Court to enter an injunction prohibiting the City of Baltimore and its agencies from enforcing the City's ordinances, rules, regulations and procedures.
IIIClaims Against The Baltimore City Defendants
Relying on this Court's opinion in Kent Island Joint Venture v. Smith, 452 F. Supp. 455 (D.Md. 1978), the Baltimore City defendants argue, inter alia, that plaintiffs' claims against them should be dismissed pursuant to the doctrine of abstention. This Court would agree. Plaintiffs are here challenging the enforcement of Baltimore City zoning regulations. Under circumstances like those alleged in the complaint, the dispute in this case is essentially a local matter as to which federal intervention is "both unwise and unwarranted." Kent Island, 452 F. Supp. at 463. The Supreme Court has identified three general categories of cases where abstention is appropriate. First, there is Pullman abstention pursuant to the doctrine announced in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941). Second, there is Burford abstention discussed in Burford v. Sun Oil Co., 319 U.S. 315 (1943). Younger abstention, the third category arises pursuant to Younger v. Harris, 401 U.S. 37 (1971). Abstention under Pullman is appropriate to avoid deciding a federal constitutional issue where the case may be disposed of by a decision on questions of state law. Kent Island, 452 F. Supp. at 461. A Burford type abstention is appropriate to avoid needless state-federal friction caused by federal interference with the administration by the state of its own purely local affairs. Id. The two doctrines overlap and mix together to form the basis for abstention in particular cases. Id. This is especially true in cases filed in federal court which challenge state attempts to implement local land use policy. Id.
Younger abstention is not applicable in this case.
Particularly applicable here is the Fourth Circuit's decision in Fralin Waldron, Inc. v. City of Martinsville, 493 F.2d 481 (4th Cir. 1974). The Fourth Circuit there affirmed the decision of the district court which had abstained on both Pullman and Burford grounds. In that case, a developer of land had claimed that local government officials had acted arbitrarily and unreasonably in refusing to grant zoning approval for the development of a parcel of land. Relying upon both Pullman type and Burford type abstention principles, a panel of the Fourth Circuit stated:
All of [plaintiff's] claims raise legitimate questions involving municipal zoning ordinances, the correct construction of local land use law as to special use permits, and the delineation of the proper scope and exercise of local administrative discretion. Understandably, the courts of Virginia have extensive familiarity and experience with such matters, and we believe that they should have the initial opportunity to pass upon them. A state adjudication may well avoid the necessity of a decision on the federal constitutional question presented as well as avoid needless friction in federal-state relations over the administration of purely state affairs.493 F.2d at 482-83.
There are many other courts which have applied the principles of Pullman and Burford in ordering abstention in cases challenging state land use policy. In Meredith v. Talbot County, Maryland, 882 F.2d 228 (4th Cir. 1987), the appellants had sought in federal district court damages or injunctive relief against Talbot County and its Planning Officer for their refusal to allow subdivision and residential development of certain lots located on the Miles River. Judge Black of this Court ruled that abstention was required under both the Burford and the Pullman abstention doctrines and dismissed the complaint. The Fourth Circuit affirmed. Citing Kent Island with approval, the Fourth Circuit held that the application of both of these abstention doctrines was appropriate. 828 F.2d at 231. As Judge Black had ruled, Burford abstention was proper because appellants' claims raised questions that implicated the land use policies of Talbot County, and Pullman abstention was appropriate because the interpretation of local laws could avoid appellants' federal constitutional claim. Id. To the same effect are Caleb Stowe Associates, Ltd. v. County of Albermarle, Virginia, 724 F.2d 1079, 1080 (4th Cir. 1984); Browning-Ferris, Inc. v. Baltimore County, Maryland, 774 F.2d 77, 79 (4th Cir. 1985); Ad Soil Services, Inc. v. Board of County Com'rs of Queen Anne's County, 596 F. Supp. 1139, 1143 (D.Md. 1984).
The common thread in all of these decisions is an abiding deference to state courts where there have been challenges to local zoning law. Land use regulation by zoning is "distinctly a feature of local government" which is outside the general supervisory power of federal courts. Hill v. City of El Paso, 437 F.2d 352, 357 (5th Cir. 1971). A land use decision involves matters entirely within the realm of state and local governments which are singularly familiar with issues thereby raised. Kent Island, 452 F. Supp. at 462. As the district court had noted in the Fralin case, if a federal court were to sit as a board of zoning appeals from actions by local governmental officials, needless conflict would result with the administration by the state courts of concerns with which they have infinitely more expertise and experience. Fralin Waldron, Inc. v. City of Martinsville, 370 F. Supp. 185, 190-91 (W.D.Va. 1973).
The central issue in this case is the reasonableness of a Baltimore City zoning law which restricts the size of signs on privately owned property. This Court concludes that the dispute here is strictly a local matter as to which federal intervention is both unwise and unwarranted. Plaintiffs have argued here that the City's regulatory scheme is vague and confusing, that the City's size limitations on signs are too restrictive and that the City's permit process is onerous and unconstitutional. The reasonableness of the zoning restrictions challenged here is clearly a question of state law, the resolution of which would avoid or modify related federal constitutional issues. Kent Island, 452 F. Supp. at 463. Accordingly, a Pullman type abstention is appropriate. This Court further concludes that a Burford type abstention is also appropriate. State land use policy is a sensitive matter subject to comprehensive local regulation. An unseemly conflict between two sovereignties would result, including the unnecessary impairment of state functions, if this federal court were to exercise its jurisdiction in an area of important state domestic policy like that involved here. Id.
Application of the Pullman and Burford doctrines is particularly appropriate in this case because there is pending at this time before the Circuit Court for Baltimore City an action involving many of the same issues as those raised here. Following a trial held on January 11, 2001, the District Court of Maryland rendered a decision ordering the MacFaddens to remove the one sign at issue. The MacFaddens' appeal of that decision is presently pending before the Circuit Court for Baltimore City. Either side in that case would have the right to challenge the Circuit Court's decision by seeking certiorari in the Court of Appeals of Maryland. This Court concludes that the zoning issues in question should be decided by courts of the State of Maryland rather than by a federal court.
The question remains whether this Court should retain jurisdiction pending the state adjudication of the issues or whether it should now dismiss the claims asserted against the Baltimore City defendants. In Burford situations, the usual procedure is to dismiss. Kent Island, 452 F. Supp. at 464. Since this Court's decision to abstain is based on both Pullman and Burford grounds, the Court concludes that the better approach would be to dismiss the claims in question at this time. See 17 Wright, Miller Cooper, Federal Practice and Procedure: Jurisdiction § 4245; Meredith, 828 F.2d at 232. Dismissal will avoid the uncertainty and delay caused by piecemeal adjudication where jurisdiction is retained. Id. Burford type abstention requires that a federal court not merely delay a decision, but completely avoid interfering with state policy. Id.
For all these reasons, the claims asserted by plaintiffs against the Baltimore City defendants will be dismissed without prejudice.
IVClaims Against Defendant Starr
Defendant Starr is a Baltimore City Police Officer. On April 7, 2000, Starr served a citation on plaintiffs ordering them to remove the signs and either pay a $50 fine or appear for a hearing before the City of Baltimore Environmental Control Board. Plaintiffs allege that defendant Starr unreasonably, intentionally or maliciously and without justification issued the citation against the MacFaddens.
In support of his motion to dismiss, defendant Starr argues that plaintiffs are not entitled to seek a recovery against him under § 1983. According to defendant Starr, he is entitled to qualified immunity because, in performing a discretionary function, a government official is shielded from civil liability to the extent that his conduct does not violate clearly established statutory or constitutional rights which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Before it can be determined whether defendant Starr is entitled to qualified immunity under the circumstances here, it must first be determined whether the citation was arbitrarily and unconstitutionally issued, or whether it was based on valid zoning law. If plaintiffs are able to show that the citation was based on the "pure content" of the signs erected on the MacFaddens' property, they would be able to present to this Court their claims that the Baltimore City defendants and also defendant Starr violated their First Amendment rights. On the other hand, if the citation was issued pursuant to clearly established and valid law of the Baltimore City Code or other applicable City zoning ordinances, then Starr would be entitled to assert the defense of qualified immunity. Since this Court has abstained from determining whether the zoning decision in question was a valid one, this Court must also abstain from deciding whether plaintiffs' claims against defendant Starr may go forward. Accordingly, the claims asserted by plaintiffs against defendant Starr will also be dismissed without prejudice.
VClaims Against Defendants Hunting Ridge and Cantori
Both defendant Hunting Ridge and defendant Cantori are private parties. Plaintiffs allege that these two defendants acted under color of state law by petitioning, conspiring and actively participating in efforts undertaken by the City to prosecute the MacFaddens and force them to remove their signs. According to plaintiffs, a private party may be held liable under § 1983 if there is a sufficiently close nexus between the private individual and the State or if the private individual has conspired with State officials to deny the plaintiffs' constitutional rights.
Unless plaintiffs are able to show that the conduct of the Baltimore City defendants was wrongful, they would not be able to seek a recovery against defendants Hunting Ridge and Cantori based on their contention that these defendants were State actors or conspirators. For the reasons stated herein, this Court has abstained from deciding whether plaintiffs are entitled to seek relief against the Baltimore City defendants and defendant Starr because of the actions taken by them against the plaintiffs. For similar reasons, the Court must also abstain from deciding whether defendant Hunting Ridge and defendant Cantori were State actors or conspirators who participated in wrongful conduct of the Baltimore City defendants. If the Baltimore City defendants did nothing wrong, plaintiffs may not proceed against defendant Hunting Ridge or defendant Cantori under either a nexus theory or a conspiracy theory. Accordingly, plaintiffs' claims against defendant Hunting Ridge and defendant Cantori will also be dismissed without prejudice pursuant to the doctrine of abstention.
For the reasons stated, the motion to dismiss of defendants Hunting Ridge and Cantori will also be granted.
VI Conclusion
For all the reasons stated, this Court has concluded that it should abstain from deciding any of the claims asserted by the plaintiffs against the seven named defendants. The Court is satisfied that, to avoid interfering with State land use policies, it should not retain jurisdiction in this case pending the adjudication of similar issues in the state courts. Accordingly, all of plaintiffs' claims against all named defendants will be dismissed without prejudice. An appropriate Order will be entered by the Court.