Applying Res Judicata Principles to Zoning Applications

Ordinary res judicata principles do not translate perfectly to the zoning context. Typically, when a plaintiff brings a claim to court, the claim seeks relief for a set of events that have already happened. Applications for variances, special use permits, or other administrative relief from the zoning ordinance do not necessarily focus on past events; instead, the applicant must demonstrate that statutorily specified conditions exist on the date of the application. Suppose, for instance, a landowner applies in 2009 for a variance to permit expansion of a single-family house into a two-family house to accommodate an elderly parent in separate quarters. That application might differ from a similar application in 2005 because, among other things, the neighborhood might have changed, the economic climate might be different, or the proposed dimensions of the expanded house might be smaller (or larger). All of these differences might arguably be relevant to a board considering a variance application. How, then, should res judicata principles apply to the 2009 variance application?

Deference to ZBA Determinations

When the ZBA itself decides that circumstances have not changed since a prior application for similar relief, and that the landowner is not, therefore, entitled to consideration of a new application, courts generally should ' and do ' defer to the ZBA's determination. That was the situation in Matter of Calipai, supra. In 2000, the landowner had sought and received a variance to permit her to convert her garage into a bedroom to meet the needs of her severely disabled son. The ZBA, however, conditioned the permit on the landowner's agreement to restore the garage should any change in circumstances occur. In 2007, after the landowner's son died, she applied to the board to delete the condition requiring restoration of the bedroom into a garage. The ZBA permitted her to continue using the bedroom for three years, with a right to apply for a further extension after that time, but adhered to its requirement that she restore the garage upon sale. When the landowner challenged the condition, the ZBA contended that its 2000 determination barred the challenge. The Appellate Division ultimately agreed, noting that the condition that had changed ' the death of landowner's son ' “cannot be viewed as unanticipated.”

Applying res judicata principles in cases like Calipai is consistent with the general principle that courts should defer to zoning boards of appeal in considering variance applications. Thus, in Matter of Ifrah v. Utschig, 98 NY2d 304, the Court of Appeals indicated that “a determination of a zoning board should be sustained upon judicial review if it has a rational basis and is supported by substantial evidence.” When a zoning board determines that the facts before it are identical to the facts before the ZBA on a prior application, principles of deference make it easy for courts to uphold the ZBA's determination. And courts have generally reached the same result as the court in Calipai: when the ZBA determines that the circumstances surrounding the current application are the same as those surrounding a prior application, courts typically uphold the ZBA's determination on res judicata grounds. See, e.g., Matter of Kam Lee v. Zoning Board of Appeals, 1 AD3d 600 (“it was withing the province of the ZBA to conclude that the petitioner's second application ' did not present changed circumstances warranting its reconsideration of the merits of petitioner's application”); Matter of Freddolino v. Village of Warwick Zoning Board of Appeals, 192 AD2d 839; Jensen v. Zoning Board of Appeals, 130 AD2d 549 (landowner cannot avoid bar of res judicata by alleging that proof of hardship presented during second application was better than proof submitted on first application).

Court Reluctance

Courts are more reluctant to apply res judicata principles to sustain zoning board determinations when the ZBA did not itself rely on res judicata to deny a landowner's application. For example, in Matter of Gonzalez v. Zoning Board of Appeals, 3 AD3d 496, the court annulled the ZBA's denial of an area variance, even though the ZBA, in defending the article 78 proceeding, relied on its prior denials of two other variance applications for the same parcel. The court emphasized that the ZBA had not relied on res judicata when considering the current variance, and held that “[j]udicial review of an administrative determination is limited to the grounds invoked by the agency in making its determination.” Id. at 498. This position, too, is consistent with deference to a ZBA's fact determinations; no deference when the ZBA has not even considered whether the current application presents circumstances different from the previous application. Cf. North Shore Steak House, Inc. v Board of Appeals, 30 NY2d 238 (rejecting a res judicata claim when prior application was made 12 years earlier and the trial court, but not the ZBA, had relied on res judicata).

ZBA Departures from Prior Determinations

When the ZBA decides to depart from a prior determination, one might expect courts to defer to the ZBA determination that circumstances have changed, and therefore to hold res judicata principles inapplicable. In these circumstances, however, courts have, on more than one occasion, held that the ZBA was obligated to adhere to its prior determination, although not using res judicata language to support that conclusion. Lucas v. Board of Appeals, supra, is the most recent example. In 1991, a landowner had applied for a variance to subdivide a single lot into two lots, one of which would have been nonconforming. The ZBA denied the variance. In 2006, a subsequent owner made a similar application, and the ZBA granted the variance, citing a different legal standard for grant of an area variance. The building inspector then granted a building permit while a neighbor's challenge to the variance was still pending. The Supreme Court granted the article 78 petition, and the Appellate Division affirmed, holding that where “a zoning board is faced with an application that is substantially similar to a prior application that had been previously determined, the zoning board is required to provide a rational explanation for reaching a different result.” Id. See also Matter of Campo Grandchildren Trust v. Colson, 39 AD3d 746 (overturning denial of an area variance when a similar variance had been granted to the same landowner five years earlier).

Lucas and Campo Grandchildren Trust do not explicitly rely on res judicata doctrine. But by imposing on the ZBA an obligation to offer an explanation for the departure from the ZBA's decision on a prior application, the court in each case declined to defer to the ZBA's determination that the new application was not equivalent to the prior application. Missing from each opinion was an explanation of what justification would suffice for the ZBA to depart from its prior determination. That explanation awaits further case law development.

Stewart E. Sterk is Editor-in-Chief of this newsletter.

In two recent cases, the Second Department has dealt with a recurring problem in zoning law: What constraint does precedent place on the decision-making authority of a zoning board of appeals? More particularly, what obligations does a zoning board of appeals (ZBA) have when a landowner applies for a variance or special permit that is substantially similar to a variance or permit the ZBA has previously denied? Matter of Calapai v. Zoning Board of Appeals (NYLJ 1/12/09, p. 33., col. 5) and Matter of Lucas v. Board of Appeals (NYLJ 12/29/08, p. 29., col. 1) shed light on this question.

Res Judicata

The Res judicata doctrine, which prevents parties from litigating claims that have been finally determined by a court, rests on a number of foundations. First, as a matter of fairness, a party seeking relief should not be allowed multiple bites at the apple. Parties should be encouraged to marshal all facts, evidence, and theories in a single litigation rather than presenting them one at a time, posing additional burdens both to defendants and to courts. Res judicata, also called “claim preclusion,” encourages parties to put their best foot forward, because if a plaintiff does not present available evidence or arguments in an action, the plaintiff will be barred from bringing a second action based on the same set of facts. At the same time, res judicata rests on the notion that a second court is no more likely to reach the “correct” result in a particular action than was the first court; if a party believes that a court has erred, it should correct the error through appeal in the first action, not by bringing a separate action.

Ordinary res judicata principles do not translate perfectly to the zoning context. Typically, when a plaintiff brings a claim to court, the claim seeks relief for a set of events that have already happened. Applications for variances, special use permits, or other administrative relief from the zoning ordinance do not necessarily focus on past events; instead, the applicant must demonstrate that statutorily specified conditions exist on the date of the application. Suppose, for instance, a landowner applies in 2009 for a variance to permit expansion of a single-family house into a two-family house to accommodate an elderly parent in separate quarters. That application might differ from a similar application in 2005 because, among other things, the neighborhood might have changed, the economic climate might be different, or the proposed dimensions of the expanded house might be smaller (or larger). All of these differences might arguably be relevant to a board considering a variance application. How, then, should res judicata principles apply to the 2009 variance application?

Deference to ZBA Determinations

When the ZBA itself decides that circumstances have not changed since a prior application for similar relief, and that the landowner is not, therefore, entitled to consideration of a new application, courts generally should ' and do ' defer to the ZBA's determination. That was the situation in Matter of Calipai, supra. In 2000, the landowner had sought and received a variance to permit her to convert her garage into a bedroom to meet the needs of her severely disabled son. The ZBA, however, conditioned the permit on the landowner's agreement to restore the garage should any change in circumstances occur. In 2007, after the landowner's son died, she applied to the board to delete the condition requiring restoration of the bedroom into a garage. The ZBA permitted her to continue using the bedroom for three years, with a right to apply for a further extension after that time, but adhered to its requirement that she restore the garage upon sale. When the landowner challenged the condition, the ZBA contended that its 2000 determination barred the challenge. The Appellate Division ultimately agreed, noting that the condition that had changed ' the death of landowner's son ' “cannot be viewed as unanticipated.”

Applying res judicata principles in cases like Calipai is consistent with the general principle that courts should defer to zoning boards of appeal in considering variance applications. Thus, in Matter of Ifrah v. Utschig , 98 NY2d 304, the Court of Appeals indicated that “a determination of a zoning board should be sustained upon judicial review if it has a rational basis and is supported by substantial evidence.” When a zoning board determines that the facts before it are identical to the facts before the ZBA on a prior application, principles of deference make it easy for courts to uphold the ZBA's determination. And courts have generally reached the same result as the court in Calipai: when the ZBA determines that the circumstances surrounding the current application are the same as those surrounding a prior application, courts typically uphold the ZBA's determination on res judicata grounds. See, e.g., Matter of Kam Lee v. Zoning Board of Appeals , 1 AD3d 600 (“it was withing the province of the ZBA to conclude that the petitioner's second application ' did not present changed circumstances warranting its reconsideration of the merits of petitioner's application”); Matter of Freddolino v. Village of Warwick Zoning Board of Appeals , 192 AD2d 839; Jensen v. Zoning Board of Appeals , 130 AD2d 549 (landowner cannot avoid bar of res judicata by alleging that proof of hardship presented during second application was better than proof submitted on first application).

Court Reluctance

Courts are more reluctant to apply res judicata principles to sustain zoning board determinations when the ZBA did not itself rely on res judicata to deny a landowner's application. For example, in Matter of Gonzalez v. Zoning Board of Appeals , 3 AD3d 496, the court annulled the ZBA's denial of an area variance, even though the ZBA, in defending the article 78 proceeding, relied on its prior denials of two other variance applications for the same parcel. The court emphasized that the ZBA had not relied on res judicata when considering the current variance, and held that “[j]udicial review of an administrative determination is limited to the grounds invoked by the agency in making its determination.” Id. at 498. This position, too, is consistent with deference to a ZBA's fact determinations; no deference when the ZBA has not even considered whether the current application presents circumstances different from the previous application. Cf. North Shore Steak House, Inc. v Board of Appeals, 30 NY2d 238 (rejecting a res judicata claim when prior application was made 12 years earlier and the trial court, but not the ZBA, had relied on res judicata).

ZBA Departures from Prior Determinations

When the ZBA decides to depart from a prior determination, one might expect courts to defer to the ZBA determination that circumstances have changed, and therefore to hold res judicata principles inapplicable. In these circumstances, however, courts have, on more than one occasion, held that the ZBA was obligated to adhere to its prior determination, although not using res judicata language to support that conclusion. Lucas v. Board of Appeals, supra, is the most recent example. In 1991, a landowner had applied for a variance to subdivide a single lot into two lots, one of which would have been nonconforming. The ZBA denied the variance. In 2006, a subsequent owner made a similar application, and the ZBA granted the variance, citing a different legal standard for grant of an area variance. The building inspector then granted a building permit while a neighbor's challenge to the variance was still pending. The Supreme Court granted the article 78 petition, and the Appellate Division affirmed, holding that where “a zoning board is faced with an application that is substantially similar to a prior application that had been previously determined, the zoning board is required to provide a rational explanation for reaching a different result.” Id. See also Matter of Campo Grandchildren Trust v. Colson , 39 AD3d 746 (overturning denial of an area variance when a similar variance had been granted to the same landowner five years earlier).

Lucas and Campo Grandchildren Trust do not explicitly rely on res judicata doctrine. But by imposing on the ZBA an obligation to offer an explanation for the departure from the ZBA's decision on a prior application, the court in each case declined to defer to the ZBA's determination that the new application was not equivalent to the prior application. Missing from each opinion was an explanation of what justification would suffice for the ZBA to depart from its prior determination. That explanation awaits further case law development.

Stewart E. Sterk is Editor-in-Chief of this newsletter.