Posted by: Patricia Salkin | December 4, 2012

NY Appellate Court Upholds Dismissal of Nonconforming Use Claim on Res Judicata Grounds

The Planning Board of the Town of Rochester issued permits in response to a landowner’s application to expand a preexisting nonconforming use.  The petitioner filed suit claiming the Board’s grant of the special use permit and SEQRA negative declaration were in violation of the local code, were arbitrary and capricious, and in violation of SEQRA and the state Open Meetings Law.  The Supreme Court, Ulster County, found no violation of the local code, found a rational basis for the grant of the special use permit, but also found the Board failed to satisfy SEQRA and the Open Meetings Law.  The petitioner did not challenge the findings concerning the local code or the permit, and the matter was remanded to the Board for reconsideration.  The Board and landowner cured all infirmities and the special use permit was issued again.  The petitioner then filed suit again in the Supreme Court, alleging the same violations of the local code and that the Board acted arbitrarily and capriciously.  The Supreme Court dismissed this second action, finding it barred by res judicata and collateral estoppel.  The Appellate Division, Third Department affirmed.

The court provided that res judicata bars “litigation of a claim that was either raised, or could have been raised, in a prior [proceeding] provided that the party to be barred had a full and fair opportunity to litigate any cause of action arising out of the same transaction and the prior disposition was a final judgment on the merits.”  The court also stated that collateral estoppel bars future litigation of an issue where there is a final determination on the merits, and a party had a full and fair opportunity to litigate the issue in question.

In looking to the facts of the case, the court determined the Supreme Court correctly found that the issues were, or could have been raised in the previous action, there was a full and fair opportunity for the petitioner to litigate any cause of action, and there was a final determination.  Contrary to the petitioner’s assertion, the second special use permit did not expand the rights of the permit holders.  In addition, the laws of the municipality had not changed.  Thus, the petitioner could not relitigate any issues concerning the special use permit, whether it be code violations or the rationality of the determination.

Petitioner also argued that res judicata and collateral estoppel should not have applied because he was not aggrieved by the Supreme Court’s ruling in the first action, and thus could not have appealed.  The Third Department disagreed with the petitioner, finding he was aggrieved by the Supreme Court in the first action, as half of his claims were denied.  The petitioner could have appealed the denial of the code violations and rationality components of the first action.

Feldman v. Planning Board of the Town of Rochester, 99 A.D.3d 1161 (3rd Dep’t, 2012).

The opinion can be accessed here.


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