If an applicant is aggrieved by decision of their local zoning board, he or she may request a rehearing of the application.  It is commonly thought that a zoning board can only rehear an application if there are new facts or a change of law.  This assumption in not entirely correct, however, and does not stem from the Town Law provisions relating to zoning board procedures.

Town Law §267-a(12), which addresses the rehearing process simply provides that “[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.” See, Town Law §267-a(12).[1]  There is no requirement in the statute for new facts, a change to the application or a change in the law, in order for a zoning board to rehear an application.

So why is it commonly thought that new facts or a change in the law are necessary for rehearing?  The notion stems from the common law doctrine of administrative res judicata.  Administrative res judicata prevents a party from seeking the same relief from an administrative board or agency that has previously been determined in a prior applicationCalapai v. Zoning Bd. of Appeals of Village of Babylon, 57 A.D.3d 987 (2d Dept. 2008);  Freddolino v. Zoning Bd. of Appeals of the Village of Warwick, 192 A.D.2d 839 (3d Dept. 1993); Jensen v. Zoning Bd. of Appeals of the Village of Old Westbury, 130 A.D.2d 549 (2d Dept.), lv. denied, 70 N.Y.2d 611 (1987).

However, New York Courts have held that a zoning board’s authority to reverse an earlier determination is not subject to the requirement that there be new facts or circumstances presented, where the two determinations arise in the same proceeding.  See, Matter of Ireland v. Zoning Bd. of Appeals of Town of Queensbury, 195 A.D.2d 155, 158 (3d Dept. 1994).  In other words, while an applicant may not make repeated applications seeking the same relief, a zoning board has the express statutory authority to modify or annul its original determination, in the context of the same applicationSee, Matter of Ireland, 195 A.D.2d at 158 (emph. added).

Procedurally, the Town Law provides that a unanimous vote of all members of the board then present is required for a rehearing to occur.  Thereafter, a second unanimous vote of all members present is required upon rehearing in order for the board to reverse, modify or annul its original order, decision or determination  See, Town Law §267-a(12).

A rehearing of an application is best pursued before a written decision is issued and filed with the Town Clerk in order to avoid a statute of limitations problem since the statute of limitations for commencing a CPLR Article 78 proceeding challenging a decision of the zoning board is relatively short – only 30 days from the filing of the decision with the Town Clerk.  See, Town Law § 267-c(1).  An applicant who wishes to have its case reheard should be mindful of the fact that the rehearing process does not suspend the statute of limitations, and proceed with caution so as not to jeopardize his ability to challenge a zoning board’s decision while pursuing a rehearing of the application.

Last, a party seeking a rehearing of his application will also have to check the particular zoning board’s rules of procedure, since the zoning board may have its own rules relating to rehearings.  Such local rules have been upheld by the Courts.  See, Sammartino v. Scheyer, 24 A.D.3d 681 (2d Dept. 2005)(board acted properly in denying a second hearing where board had a rule providing that if an application is denied, new application cannot be accepted unless there is a substantial change in such application).

[1] The corresponding provisions of the Village Law and General City Law are Village Law § 7-712-a and General City Law § 81-a.