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April 25, 1984

Jack B. TANCREL and Lillian Tancrel, Plaintiffs,
MAYOR AND COUNCIL OF the TOWNSHIP OF BLOOMFIELD and Frank R. Domenick, Director of Community Development of the Township of Bloomfield, Defendants

The opinion of the court was delivered by: LACEY

 Plaintiffs in this action are owners of residentially zoned property in Bloomfield, N.J. They have owned a large motor home since 1977. On August 13, 1979, the Mayor and Council of Bloomfield passed an ordinance reading as follows:

Recreational vehicles must be parked in rear yards only and at a distance of 15 feet from any adjoining residence. A setback of 3 feet must be maintained from rear and side property lines. (Zoning Ordinance § 5.1.9)

 Plaintiffs' motor home is too large to be driven to the rear of their property. Defendants have enforced the ordinance against plaintiffs. *fn1" Plaintiffs applied for a zoning variance, but were turned down.

 Plaintiffs brought a complaint in lieu of a prerogative writ in state Superior Court. The trial court overturned the denial of a variance, finding a pre-existing nonconforming use. "The Tancrels' appeal to the Law Division added a constitutional attack on the ordinance to the two previous grounds asserted before the Zoning Board. The Law Division found no constitutional impairment to the validity of the ordinance." Tancrel v. Mayor, No. A-2537-80T2, slip op. at 2 (App.Div. Jan. 12, 1982). The Appellate Division reversed the decision of the Law Division and reinstated the town's denial of the variance. It also found that the Tancrels' constitutional claims were insubstantial:

The Tancrels challenged the constitutionality of the ordinance before the Law Division but failed to produce any evidence whatsoever in support of their contention, either as to the facial unconstitutionality or the unconstitutionality of the ordinance as it applied to them. The regulation of the parking of such vehicles has been constitutionally upheld by this court. Livingston Tp. v. Marchev, 85 N.J.Super. 428 [205 A.2d 65] (1964), certif. den. 44 N.J. 412 [209 A.2d 145] (1965). We conclude that the constitutional argument is without merit. *fn2"

 Id., slip op. at 3-4. The state Supreme Court denied certification.

 Plaintiffs then brought this action under 42 U.S.C. § 1983 in federal court. They claim that the ordinance is unconstitutional on its face and that defendants have discriminatorily enforced the ordinance, in violation of the due process and equal protection clauses of the fourteenth amendment. Defendants move to dismiss. For the purposes of this motion, they concede plaintiff's statement of the facts (as they must), but argue that the claims are precluded by res judicata doctrines.


 In Allen v. McCurry, 449 U.S. 90, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980), the Court held that state res judicata doctrine may bar § 1983 claims already pressed in state court in a later federal action. The holding rested on the full faith and credit statute, 28 U.S.C. § 1738, and found that 42 U.S.C. § 1983 did not impliedly repeal that statute, 449 U.S. at 99, 101 S. Ct. at 417. That was so even though § 1983 was enacted partly out of a concern that state courts would not protect federal rights. Id. Accord, Kremer v. Chemical Constr. Corp., 456 U.S. 461, 476, 102 S. Ct. 1883, 1894, 72 L. Ed. 2d 262 (1982). Thus the effect of the earlier state court judgment depends on the issue preclusion effect that the judgment would have in state court. Kremer, 456 U.S. at 482, 102 S. Ct. at 1897-98; Allen, 449 U.S. at 96, 101 S. Ct. at 415. *fn3"

 I have no doubt from the Appellate Division decision that the factual issues before the state court, which were found to have "no merit," are the same ones before me today. Moreover, the state court rendered a final judgment and the disposition of the constitutional claim was necessary to that judgment. Relitigation is precluded. See State v. Redinger, 64 N.J. 41, 312 A.2d 129 (1973); Donegal Steel Foundry Co. v. Accurate Prods. Co., 516 F.2d 583 (3d Cir.1975) (applying New Jersey law); Feniello v. Univ. of Penn. Hosp., 558 F. Supp. 1365 (D.N.J.1983). Thus I would find, for example, the issue of discriminatory enforcement to be foreclosed.

 There is a slight ambiguity as to whether the claims pressed and decided in state court were federal constitutional claims. If so, they are unquestionably barred. See, e.g., Donegal, supra, 516 F.2d at 588; City of Plainfield v. Pub. Serv. Elec. & Gas Co., 82 N.J. 245, 257-59, 412 A.2d 759 (1980). Since the facial challenge is a purely legal issue, and the discriminatory enforcement claim a mixed question of law and fact, I consider also the claim preclusion aspect of the state res judicata doctrines. My resolution of that issue subsumes the issue preclusion aspect, and renders moot any doubts as to the claims actually presented in state court.


 In the recent case of Migra v. Warren City School Dist. Bd. of Ed., 465 U.S. 75, 104 S. Ct. 892, 79 L. Ed. 2d 56 (1984), the court extended the Allen holding to encompass claim preclusion. A federal civil rights claim that could have been, but was not, presented in a previous state court action, can be precluded in a federal court action in accordance with state claim preclusion doctrine. The Third Circuit case of Davis v. United States Steel Supply, 688 F.2d 166 (3d Cir.1982), cert. denied, 460 U.S. 1014, 103 S. Ct. 1256, 75 L. Ed. 2d 484 (1983) had largely settled the issue in any event. In that case, plaintiff had filed a municipal antidiscrimination complaint and appealed an administrative determination to state court. Losing there, plaintiff asserted a 42 U.S.C. § 1981 claim in ...

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