Yesterday, we briefly discussed the doctrine of res judicata and its application to local government boards of zoning appeals. Finley v Marshall County, decided by the Tennessee Court of Appeals about a year ago, made clear that this doctrine, which precludes appealing the same case several times, does apply in the context of zoning decisions.
I certainly don’t know the answer to this question, but one wonders how the doctrine would apply in the context of special exceptions (otherwise known as conditional use permits amongst other names) which are granted for a specific period of time. Many special exceptions are granted without a specific restriction in terms of how long the operation made last. But more and more these days, a special exception is granted for a specific period of time such as two years, three years, five years, or more.
Suppose a special exception has been granted for a period of five years. By granting the special exception, the board of zoning appeals has indicated that it complies with all of the requirements of the local zoning regulations. It may or may not impose additional conditions on the application. But let’s assume that five years later, the same applicant returns, and that the zoning regulations have not been changed. Finally, also assume that while there is opposition, the opposition is substantially similar to the opposition at the original hearing, and that no appeal was taken from the original hearing.. Is there sufficient evidence before the board of zoning appeals to deny the application? If the board granted the first time, under the same laws and the same facts, to the same applicant, does the doctrine of res judicata require the board to grant the permit upon request for renewal?
Let’s add one further wrinkle to this issue. Suppose there was an interpretation of the zoning regulations at the time of the original approval. Obviously the interpretation by the zoning board was favorable to the applicant or the permit would not of been granted. At the application hearing for renewal, the opponents again bring up the same legal issue concerning the interpretation of the same term in the ordinance. Is the zoning board bound by its previous interpretation? It would seem that unless some court has specifically overruled the board’s interpretation of the zoning regulation, or unless the local legislative body has change the terminology, that the board should continue interpreting the ordinance in the same manner.
I don’t know of any case law on this issue. But certainly it is pretty interesting. I’ve always thought that once a special exception permit has been granted by a zoning board, even if it is for a particular period of time, that upon applying for renewal, the applicant had a special claim to be treated fairly, given the investment in the property and the operation of a business for some period of time. Certainly, if the opponents of the applicant can demonstrate that the business has been running away detrimental to the surrounding properties, the board should pay close attention and make a decision with those contentions in mind. But if the business has been run appropriately, and if the only objections are similar to the ones made at the original hearing, it would seem difficult for the zoning board to deny the renewed application.