KREISBERG v. SCHEYER (2006)

The Petitioners, Harvey Kreisberg and Ann Kreisberg, commenced this proceeding to annul and vacate a decision of the Zoning Board of Appeals on the ground that “ * * *said decision is arbitrary, capricious and unreasonable, illegal and without basis or evidence in the record* * * ” (Notice of Petition).   The Petitioners are the owners of a parcel of property located at 93 Tahlulah Lane, West Islip, New York and came into title ownership of the property by deed dated June 17, 1985.   The Petitioners seek a variance from the Respondents to expand their one car garage to a two car garage and their current proposed plan requires a variance from the required 14 feet side yard setback to a ten foot set back.

The previous owners of the property had submitted an application to add a two car garage in 1984, which application was denied by the Zoning Board of Appeals (see Petition ¶ 6).   The Zoning Board of Appeals decision that denied the 1984 application stated:

A review of the testimony and a personal inspection reveals that the applicant is the owner of a parcel of property 100 feet wide by 150 feet deep on Tahlulah Lane backing up to Wampum Lagoon.   There are two portions of the application. the applicant is requesting permission to add an addition to his dwelling (a 22′ x 32′ two car attached garage) to the front portion of his house but intruding into his side yard at least 6 feet closer to his neighbor's property leaving 8.9 feet instead of the required 14 feet.

The adjoining neighbor's home on that side is also 15 feet from the property line and conforming. The neighbor appeared at the hearing objecting that such an addition would be directly under his bedroom windows, there would be noise from the garage and it would affect his sunlight and ventilation on that side of his house.   People are entitled to rely upon the protection of the Zoning Ordinance as to spacing between property and in the opinion of the Board such an addition would also adversely effect the adjoining neighbor's property values by reduction of the side yard.

The applicant has adequate property to build a one car garage or a garage closer to the south side of the property and stay with the building line on the north side of his house.

Therefore, the Board finds that part of the application requesting permission to erect a garage 8.9 feet from a side yard instead of the required 14 feet and to have total side yards of 23.9 feet instead of 38 feet is denied.

Over twenty years after the denial by the Board in 1984, on July 7, 2004, the Petitioners filed an application with the Respondents seeking permission to expand their one car garage into a two car garage leaving a side yard of 5.23 feet instead of the required 14 feet.   Therefore the proposed garage would have been approximately 8.8 feet from the side yard.   The Zoning Board of Appeals, without a hearing, rejected the application made in 2004 citing the 1984 decision.   The letter received by the architect, James E. Nolan, stated:

The Board is in receipt of your letter dated July 12, 2004 regarding the above referenced application.   After a review of the file and the decision, which was filed with the Town Clerk, it is the determination of this Board that you have not shown substantial change nor have you presented any new facts that would justify a rehearing.   Therefore, after careful consideration, your request for a rehearing is denied.   Our original denial stands.

According to the Petition, “(o)n or about November 8, 2004, the Petitioners sought reconsideration and a hearing on their application for permission to erect a garage, this time for permission to leave a side yard of 10 feet instead of the required 14 feet.” (see Amended Petition ¶ 9).   This request constituted a change in the side yard variance requested and reduced by over a foot the variance sought by the Petitioner.   This request was in the form of a letter from James E. Nolan, the Architect, which stated:

I am requesting additional reconsideration of the above referenced application.   I have substantially changed the original request for a 5′-0″ side yard setback to a 10″(sic)-0″ set back which is a 50% capitulation.   I have checked with the Planning Department who informed me there were many approved examples of this setback in this zone.

My client has a great interest in improving his property and your assistance in this matter would be much appreciated.  (Exhibit F, Amended Petition)

On December 8, 2004, without a hearing, a letter was sent to James E. Nolan from Richard Scheyer which referred to the 1984 application by the prior owners of the property to add a two car garage and stated:

We have received your letter dated November 8, 2004 relative to the above referenced application.   After careful review of the prior case the Board find that there is not substantial change in the application which would justify a rehearing.

On March 29, 2005, the attorney for the Petitioners sent a letter to the Board of Zoning Appeals requesting reconsideration of the 2004 application and stating that the Petitioners' application was for a side yard setback of 10 feet as opposed to the original application in 1984 which was for a side yard setback of 8.9 feet (Amended Petition Exhibit I).

On April 21, 2005, the Petitioners received notification from the Board of Appeals denying the request for a rehearing and stating that “(i)t is the determination of this Board that you have not shown substantial change nor have you presented any new facts that would justify a rehearing” (Amended Petition Exhibit J).  The Court further notes that on this application, the Petitioners have submitted a letter from a neighbor located to his south which states that:

Harvey Kreisberg, my neighbor to the south, has showed me the plans he has to expand his garage from one-car to two cars.   I understand this will reduce the side set-back between the garage and my property line from 14 feet to 10 feet.   I have no problem with this and would recommend that his application for a variance be approved.   I believe the architectural changes he plans to make will enhance the overall look of the property and be a positive addition to the neighborhood.  (Petition Exhibit K)

The Respondents had moved to dismiss the Petition alleging that the 1984 decision of the Zoning Board of Appeals was entitled to res judicata treatment and the application of that principle prevents the Petitioners from seeking a rehearing from the Zoning Board of Appeals at this time.

 This Court, in its previous decision, requested that the Respondent provide the Court with a full and complete return for this case and the 1984 matter in order to permit it to compare the two applications.   While the Town has taken the position that the 1984 application and the 2004 application are substantially the same, the Court has the proposed drawing prepared by the architect James Nolan dated 11/19/ 04 and the drawing for the 1984 application and it is clear to this Court that while both applications request that the one car garage be expanded to a two car garage, the placement of the garage is different, the size of the garage in the second application is not as wide as the 1984 application, approximately five feet shorter, does not infringe into the side yard as far and does not include the proposed room addition to the back that the first application contained.

 The legal doctrine of res judicata does apply to quasi-judicial determinations of Zoning Boards of Appeals (see, Waylonis v. Baum, 281 A.D.2d 636, 723 N.Y.S.2d 55;  Timm v. Van Buskirk, 17 A.D.3d 686, 793 N.Y.S.2d 520) and a second application for identical relief by the same person or a person in privity with the first applicant would be barred by res judicata (see, Jensen v. Zoning Bd. of Appeals of Village of Old Westbury, 130 A.D.2d 549, 515 N.Y.S.2d 283 app'l den'd 70 N.Y.2d 611, 523 N.Y.S.2d 495, 518 N.E.2d 6;  Green v. Scheyer, 205 A.D.2d 535, 612 N.Y.S.2d 663).   The Court notes that where, on a second application, a landowner failed to present any new facts which materially changed aspects of the request, the Zoning Board of Appeals, pursuant to the Town Law could refuse to rehear the application (see, ELN Realty Corp. v. Zoning Bd. of Appeals of Town of Greenburgh, 261 A.D.2d 619, 690 N.Y.S.2d 700).   However as the Court noted in its previous decision, even if the two parties share interests in some respect, if they are not in privity in all respects necessary to satisfy the court of the fairness of applying the estoppel doctrine, the Court will not give res judicata effect to the first decision.   The applicant in 1984 and the Petitioners herein are not identical, the Respondents have not shown that the Petitioners herein were in privity with the 1984 applicants and now the Court has proof in the return that the facts involved in this application are not identical with the facts in the first application (see, Siegel, N.Y. Prac. § 463 (4th ed.)).

 A second application for similar relief presents a situation in which the Zoning Board of Appeals has some discretion as to the type of hearing, if any, that will be granted (see generally, Town Law § 267-a(12)).   As noted above, if the same applicant applies for identical relief without alleging that circumstances have changed, the Board may deny the application after summary consideration pursuant to the procedure set forth in the Town Law (see, Ardolino v. White, 286 A.D. 882, 142 N.Y.S.2d 253;  see also, Kennedy v. Zoning Bd. of Appeals of Village of Hastings-On-Hudson, 145 A.D.2d 490, 535 N.Y.S.2d 638).

 The Appellate Division will sustain a denial of a second application by the Zoning Board of Appeals without a hearing if the applicant makes no allegation which warrants a new hearing.   The Court must note that where a Planning Board has denied an application for a conditional use permit, a second application for relief is not barred by res judicata if the applicant presents significant changes in the plans and new evidence of lack of neighborhood opposition (see, Caper v. Parker, 271 A.D. 839, 66 N.Y.S.2d 10;  Morehouse v. Town of Horicon Planning Bd., 85 A.D.2d 769, 445 N.Y.S.2d 290;  Josato, Inc. v. Wright, 288 A.D.2d 384, 733 N.Y.S.2d 214).   Here the first request for a permit by an applicant was made in 1984 by persons other than the petitioners herein, the 1984 application involved factually distinguishable proposals for constructing a garage and the 1984 application was opposed by the neighbor to the south of the property (see, Gonzalez v. Zoning Bd. of Appeals of Town of Putnam Valley, 3 A.D.3d 496, 771 N.Y.S.2d 142;  see also Matter of Peccoraro v. Humenik, 258 A.D.2d 465, 684 N.Y.S.2d 588;  Kalpin v. Accettella, 160 A.D.2d 909, 554 N.Y.S.2d 632).   There is no indication in this record that there is opposition in the neighborhood and, in fact, the neighbor of the Petitioners whose property is located on the side of the Petitioners' house where the variance is requested has submitted a letter in support of the Petitioner's application.

 The Zoning Board of Appeals is authorized by statute to hold a rehearing to review any order by Town Law § 267-a(12) which states:

A motion for the zoning board of appeals to hold a rehearing to review any order, decision or determination of the board not previously reheard may be made by any member of the board.   A unanimous vote of all members of the board then present is required for such rehearing to occur.   Such rehearing is subject to the same notice provisions as an original hearing.   Upon such rehearing the board may reverse, modify or annul its original order, decision or determination upon the unanimous vote of all members then present, provided the board finds that the rights vested in persons acting in good faith in reliance upon the reheard order, decision or determination will not be prejudiced thereby.

Additionally, the doctrine of res judicata may not be used against one who was not a party to the first action because that would deny that person a hearing and raise issues of due process (see, Siegel, N.Y. Prac. § 458 (4th ed.);  Evergreen Bank N.A. v. Dashnaw, 246 A.D.2d 814, 668 N.Y.S.2d 256;  State v. Schenectady Chemicals, Inc., 117 Misc.2d 960, 459 N.Y.S.2d 971, aff'd and mod'f 103 A.D.2d 33, 479 N.Y.S.2d 1010).

 The burden of proof is upon the Respondents to show that res judicata applies and “ * * *any uncertainty as to what has actually been litigated must inure to the benefit of the appellant” (Griffen v. Keese, 187 N.Y. 454, 80 N.E. 367;  City Bank Farmers Trust Co. v. Macfadden, 13 A.D.2d 395, 216 N.Y.S.2d 215).

In the Memorandum of Law, the Respondents allege that on June 7, 2004 the Petitioners herein requested permission to erect an addition in the same location with a 5′ side yard setback.   While that request is attached as Exhibit B to the cross motion, and a denial is attached as Exhibit D to the cross motion, there is no showing that the relief requested in that application is the same as the relief requested in the instant Petition that is the subject of this litigation.

The Court cannot ascertain from these papers if the Petitioners initially asked for a rehearing of the 1984 decision of the Board of Zoning Appeals or if the Board of Zoning Appeals itself decided to treat the 2004 application as one for a rehearing.   Further, it appears that when the attorney for the Petitioners requested “reconsideration” for SCTM No. 500-477-2-27, the Board treated that request as one for a rehearing and denied on the basis of only that the application does not involve a substantial change from the 1984 application.

 While the Court recognizes that the Board of Appeals has broad discretion in considering applications for variances and that the Court's review is limited to determine whether the action taken was illegal, arbitrary or an abuse of discretion, this does not give the Board the authority to summarily deny a second application made over twenty years after the first application, for somewhat different, albeit related relief without at least affording the homeowner a hearing on the matter.   The homeowner herein has not been given the opportunity to provide the Board with evidence that his addition will not affect the character of the neighborhood and that the neighborhood residents are not in opposition.   While this Court will not ordinarily substitute its judgment for that of the Respondents, under these facts the Petitioners are entitled to a hearing from the Board on their application.   The matter is remitted to the Board with the directive that a hearing be ordered held on this matter to determine if a variance should be issued to the Petitioners.

SANDRA L. SGROI, J.