Failure To Appeal First Zoning Board Decision Results In Application Of Factual Res Judica To Second Application For Similar Relief
November 26, 2018
In Voutsinas v. Schenone, 2018 NY Slip Op 07439 (2d Dept, November 17, 2018), the Appellate Division, Second Department, reminded land use practitioners of not only the importance of appealing decisions rendered by Town and Village Boards, including Trustees, Zoning and Planning Boards, even if not all of the findings of facts in the decision are adverse to the applicant, but also, the consequences that can be brought upon a second application made to the same board or body for similar relief.
In Schenone, the landowner and tenant (collectively “Petitioners”) made an application to the Village of Rockville Centre Zoning Board of Appeals (“Zoning Board”) seeking an off-street parking space variance in connection with a proposed two-story restaurant to be constructed in the Village. On March 12, 2014, the Zoning Board denied the application as presented. However, the Zoning Board agreed to grant an off-street parking space variance to construct a one-story restaurant finding that the Village could accommodate a parking variance in connection with the proposed square footage of a one-story restaurant. Petitioners did not appeal the March 12, 2014 Zoning Board decision.
Instead, Petitioners made a second application to the Zoning Board requesting to construct a two-story restaurant with valet service providing off-street parking at two nearby properties. In denying the second application, by decision dated November 21, 2014, the Zoning Board held that the two nearby properties were subject to recorded covenants and restrictions that barred the properties from providing off-street parking. Consequently, the Zoning Board denied the remaining request for a two-story restaurant relying on its March 12, 2014 decision stating that “absent the valet parking proposal, this second application was ‘not materially different’ from the petitioners/plaintiffs first application for a parking variance, and that it was bound by its March 12, 2014 determination finding that the “addition of a second floor created an undue parking burden in an already congested area of Rockville Centre.”
Petitioners appealed the November 21, 2014 Zoning Board decision. The Supreme Court upheld the Zoning Board decision and dismissed the petition. On appeal, the Second Department upheld the Supreme Court decision stating that ‘”[t]he principles of res judicata and collateral estoppel apply to quasi-judicial determinations of administrative agencies, such as zoning boards, and preclude the relitigation of issues previously litigated on the merits.” Hence, when the Zoning Board issued its March 12, 2014 determination that the Village could not accommodate the congestion resulting from a two-story restaurant at the site; this finding of fact, without an appeal, became binding in the context of this application.
On appeal, Petitioners argued that because they submitted revised building plans, the second application is different from the first application. The Second Department rejected this contention stating that “the revisions to the building plans submitted in support of their second application for a parking variance did not change the parking considerations attendant to each application.” In other words, the second application requested the same two-story restaurant and when the alternative parking solution was found to be untenable, the Zoning Board was essentially left with the same initial request made for a two-story restaurant and denied in the first March 12, 2014 Zoning Board decision.
The take away here is that findings of fact made by a Board of body become the equivalent of “law of the case.” As such, if there is any reason to believe that an amended application for similar relief will be sought, an appeal should be taken from the first decision, even if not all parts of the first decision are adverse to your application. Although the appeal may never need to be perfected, simply taking the appeal preserves a party’s rights.