| Matter of Feldman v Planning Bd. of the Town of Rochester |
| 2012 NY Slip Op 07180 [99 AD3d 1161] |
| October 25, 2012 |
| Appellate Division, Third Department |
| In the Matter of Daniel Feldman, Appellant, v Planning Board ofThe Town of Rochester et al., Respondents. |
—[*1] Mary Lou P. Christiana, Kingston, for Planning Board of the Town of Rochester, respondent. Jacobowitz & Gubitz LLP, Walden (John C. Cappello of counsel), for Real EscapesProperty, LLC and another, respondents.
Spain, J. Appeal from a judgment of the Supreme Court (Zwack, J.), entered February 29,2012 in Ulster County, which, in a proceeding pursuant to CPLR article 78, granted respondents'motions to dismiss the petition.
In 2004, respondent Planning Board of the Town of Rochester issued respondents RealEscapes Property, LLC and Simone Harari (hereinafter collectively referred to as respondents) aspecial use permit to expand the use and size of a residentially-zoned (R-1) historic residencelocated on Kyserike Road in Ulster County from an existing home-based spa into a membershipclub spa, including a 500-foot addition to the house. The Town's zoning ordinance was amendedin 2009, changing the zoning of the property to AR-3 residential agricultural district andremoving the definition of a "club membership." In 2010, respondents applied for a special usepermit to expand the spa facility, which then constituted a preexisting nonconforming use in anAR-3 zoned district. In October 2010, the Planning Board granted the special use permit withspecified conditions and modifications and petitioner, an adjacent neighbor, commenced a CPLRarticle 78 proceeding against the Planning Board and respondents seeking to annul the 2010[*2]special use permit and the State Environmental QualityReview Act (hereinafter SEQRA) negative declaration. Petitioner argued that the requestedexpansion of the nonconforming use violated the Town's zoning ordinance in several respectsand was irrational and arbitrary and capricious; he also contended that the Planning Boardviolated the Open Meetings Law and failed to comply with SEQRA.
Supreme Court issued a written decision which rejected as meritless all but two ofpetitioner's contentions, rejecting the claims of zoning violations, and held that the PlanningBoard's issuance of the permit was rationally supported by the evidence. However, the courtagreed that the Planning Board had violated the Open Meetings Law and failed to take therequisite "hard look" at the environmental impact of the proposal, particularly by failing toconsider the pond expansion and the impact upon the wetlands located on the property. On thatbasis, the court partially granted the relief in the petition, annulling the negative declaration andthe special use permit. Petitioner did not appeal that judgment.
Respondents thereafter submitted revised environmental forms and assessments addressingthe environmental impact of the proposed expansion and, in October 2011, the Planning Boardapproved the special use permit subject to slightly modified terms and conditions. Petitioner thencommenced the instant CPLR article 78 proceeding to annul the Planning Board's 2011 approvalof the special use permit, again arguing that the proposed expansion violated the Town ofRochester Zoning Code and that the Planning Board's approval was arbitrary and capricious,among other points. Petitioner did not challenge the environmental review. Supreme Courtgranted motions by the Planning Board and respondents to dismiss the proceeding, finding thatpetitioner's claims are barred by res judicata and collateral estoppel. Petitioner now appeals.
We are not persuaded by petitioner's arguments that Supreme Court erred in dismissing theinstant CPLR article 78 proceeding challenging the 2011 special use permit approval based uponprinciples of res judicata and collateral estoppel, given the issues raised (or raisable) and decidedin the prior special proceeding between the parties involving the same permit application toexpand the use of the subject property. "Res judicata will bar litigation of a claim that was eitherraised, or could have been raised, in a prior [proceeding] provided that the party to be barred hada full and fair opportunity to litigate any cause of action arising out of the same transaction andthe prior disposition was a final judgment on the merits" (Kinsman v Turetsky, 21 AD3d 1246, 1246 [2005], lvdenied 6 NY3d 702 [2005] [citations omitted]; see Matter of Martin v Central Off. Review Comm. of N.Y. State Dept. ofCorrectional Servs., 69 AD3d 1237, 1238 [2010]). That is, provided the proceedingsinvolved the same subject matter, "once a claim is brought to a final conclusion, all other claimsarising out of the same transaction or series of transactions are barred, even if based upondifferent theories or if seeking a different remedy" (O'Brien v City of Syracuse, 54 NY2d353, 357 [1981]; see Matter of Josey vGoord, 9 NY3d 386, 389-390 [2007]). Similarly, collateral estoppel "proscribes therelitigation of issues finally [and necessarily] determined in a prior proceeding so long as theparties were afforded a full and fair opportunity to litigate those issues in the prior proceeding"(Matter of Hassig v New York StateDept. of Envtl. Conservation, 6 AD3d 1007, 1008 [2004], lv dismissed anddenied 3 NY3d 736 [2004]; see Buechel v Bain, 97 NY2d 295, 303-304 [2001],cert denied 535 US 1096 [2002]; see See Why Gerard, LLC v Gramro Entertainment Corp., 94 AD3d1205, 1206 [2012]; Matter of Martin v Central Off. Review Comm. of N.Y. State Dept.of Correctional Servs., 69 AD3d at 1238).[*3]
Supreme Court correctly determined that the issues raisedin the current proceeding had already been raised, or could have been raised, in the priorproceeding, that petitioner had a full and fair opportunity in that prior proceeding to litigate anycause of action there, and that a final judgment on the merits had been issued (see Kinsman vTuretsky, 21 AD3d at 1246-1247). The prior proceeding determined that the use proposed inthe special use permit application was a lawful, permissible expansion of a preexistingnonconforming use that did not violate zoning laws or the comprehensive plan and that thePlanning Board's issuance of the permit was rationally based and not arbitrary and capricious.The permit was annulled only because of the SEQRA noncompliance, and petitioner does notnow challenge the subsequent environmental review and approval underlying the PlanningBoard's issuance of the instant 2011 permit. The zoning ordinance and comprehensive plan werenot modified in any relevant respect since the prior proceeding, and the Planning Board rationallyconcluded that the permit application itself had not been substantially modified or expanded andthat the modifications to the site plan and permit were "the result of the SEQRA review of [the]environmental significance [and impact mitigation] of the project." That is, the proposed usesand intensity of activities in the permit application remained the same and were approved by thecourt in the prior proceeding, and issues such as noise, traffic, parking, lighting and the scope ofspecial events had previously been raised and addressed.
The 2011 special use permit now challenged did not, as petitioner contends, expand thescope of the uses or the intensity of activities; rather, this permit added conditions designed tomitigate the environmental impact[FN*] of the permissible uses, related to noise, traffic, lighting, landscaping, access, wetlands andparking. Thus, the same claims raised here were or could have been raised in the priorproceeding, barring the instant claims even to the extent they are based upon different theories orseek a new remedy (see O'Brien v City of Syracuse, 54 NY2d at 357).[*4]
Further, the zoning and other issues related to theactivities and uses proposed in the permit were necessarily decided in the prior proceeding; theywere not dicta, as petitioner argues. Had Supreme Court determined previously that the requesteduses violated zoning or were not a lawful expansion of the preexisting nonconforming use, nofurther environmental review would have occurred or resulted in the issuance of the new permitin 2011 (see Buechel v Bain, 97 NY2d at 304).
We also find meritless petitioner's claim that application of the doctrines of res judicata andcollateral estoppel are unfair or incorrect on the premise that he could not have appealedSupreme Court's prior judgment because he was not aggrieved by it. Initially, CPLR article 78review of the Planning Board's 2010 grant of the special use permit was appropriate, as thePlanning Board had reached a definite position on the application that inflicted an actual,concrete injury on petitioner; thus, its administrative determination was final and binding(see CPLR 7801 [1]; Matter ofBest Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d30, 34 [2005]; see also Walton vNew York State Dept. of Correctional Servs., 8 NY3d 186, 194-195 [2007]; Matter of Properties of N.Y., Inc. vPlanning Bd. of Town of Stuyvesant, 35 AD3d 941, 942-943 [2006]).
Moreover, petitioner was aggrieved by Supreme Court's prior judgment (see CPLR5511; Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 544-545[1983]). While that determination annulled the special use permit, it did so only based uponSEQRA noncompliance, allowing for further environmental review of the application. Petitionerwas prejudiced by the denial of complete relief—i.e., by the denial of his claims that theproposed uses violated the zoning ordinance and were an unlawful, impermissibleexpansion—which, if granted, would have precluded any further administrativeconsideration of the application (seeMixon v TBV, Inc., 76 AD3d 144, 148-149 [2010]). Indeed, "an appeal may be takenwhen the judgment does not grant complete relief to the successful party [w]hen, for example, aspecific finding at [the] trial [level] might prejudice a party in a future proceeding by way ofcollateral estoppel" (Lincoln v Austic, 60 AD2d 487, 490 [1978], lv denied 44NY2d 644 [1978] [citation omitted]). Thus, while petitioner was partially successful in the priorspecial proceeding, he was nonetheless aggrieved by Supreme Court's judgment and had the rightto appeal therefrom and should have done so given its preclusive effect in future proceedings(see CPLR 5511; Mixon v TBV, Inc., 76 AD3d at 148-149). Consequently,petitioner has failed to meet his burden, as the party to be precluded from relitigating the issuespresented, of demonstrating "the absence of a full and fair opportunity to contest the priordetermination" (Buechel v Bain, 97 NY2d at 304). Accordingly, Supreme Court properlygranted the motions and dismissed the petition.
Rose, J.P., Kavanagh, Stein and McCarthy, JJ., concur. Ordered that the judgment isaffirmed, without costs.[*5]
Footnote *: For example, in the conditionsset forth in the new permit, the outdoor meditation pavilion is required to be enclosed and asix-foot solid privacy fence is to be constructed on the subject parcel's border with petitioner'sproperty, both intended to mitigate noise. The original proposal to expand the main building isreduced, and the number of events allowed in the outdoor enclosed pavilion is reduced from 16to 12, and amplified noise is limited to the interior of the pavilion. The hours in which specialevents are allowed in the pavilion remained the same (9:00 a.m. to 11:00 p.m.), and themaximum occupancy for the pavilion was not established (it had been 200 people in the 2010permit), leaving the code enforcement officer to determine the maximum occupancy for eachstructure. Six-foot evergreen trees are required to shield the parking lots, which are expanded toaccommodate the anticipated parking needs for special events. The remaining modificationspertain either to accommodating environmental or historic concerns and are not challenged here.In our view, Supreme Court correctly concluded that the incidental mitigation modifications andconditions imposed in the new permit did not undermine the applicability of the res judicata andcollateral estoppel doctrines.