Posted by: Patricia Salkin | January 6, 2020

NY Appellate Court Holds Doctrines of Res Judicata and Collateral Estoppel Precluded Re-litigation of Whether Costs of Completed Improvements Could be Included in Performance Bond Reduction

This post was authored by Matthew Loeser, Esq.

In 2004, the respondent Planning Board of the Incorporated Village of Muttontown approved the application of the petitioner, WB Kirby Hill LLC, for subdivision plat approval, on the condition that the petitioner post a performance bond in the sum of $14,000,565 for the completion of certain public improvements. In 2008, the amount of the performance bond was reduced to $7,215,059. Upon the petitioner’s application for discharge of the performance bond, the Planning Board recommended that the amount of the performance bond be reduced to $3,126,524. This amount included the costs of 3 uncompleted public improvements, and 10% of the costs of 28 completed public improvements. The respondent Board of Trustees of the Incorporated Village of Muttontown approved the Planning Board’s decision.

Following this, the Supreme Court annulled the determination. The Planning Board then recommended that the amount of the performance bond be reduced to $1,911,557. This amount included the costs of 4 uncompleted public improvements, as well as 10% of the costs of 12 completed public improvements – which was approved by the Planning Board. The Supreme Court then granted the second amended petition, annulled the determination on the ground that it failed to comply with the prior judgment, and remitted the matter to the Planning Board to determine the amount of the performance bond, which amount was to include only the costs to complete the public improvements. Additionally, the court determined that the Village respondents were not entitled to additional fees from the petitioner in connection with the discharge of the performance bond. The Village respondents appealed from this judgment.

On appeal, the court found that the Village respondents were barred by the doctrines of res judicata and collateral estoppel from relitigating whether the costs of completed items could be included in the amount by which the performance bond should be reduced. The court did not, however, agree with the Supreme Court’s holding that the petitioner was not responsible for any further fees or costs related to the discharge of the performance bond. It noted that while a municipality may charge reasonably necessary fees in conjunction with a subdivision application, it could not opine as to whether the fees charged to the petitioner in connection with the instant application were reasonable. Accordingly, the Supreme Court’s determination to grant the second amended petition and to annul the determination of the Board of Trustees was affirmed.

WB Kirby Hill, LLC v. Incorporated Village of Muttontown, 175 A.D.3d 1537 (2019)

 


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