The Striking Down (by the Court of Appeals) of a Retroactive Zoning Ordinance Which Prohibited the Operation of a Landfill Did Not Require the Striking Down of a Subsequent Health and Safety Regulation Which Had the Same Effect

The Fourth Department determined that the striking down (by the Court of Appeals) of a 2005 retroactive zoning ordinance which prohibited the continued use of petitioner’s property as a landfill did not require the striking down of a 2007 health and safety regulation which had the same effect.  Because the two regulations are different in nature, the collateral estoppel doctrine is not available:

…[W]e agree with defendants that collateral estoppel does not apply here. “The doctrine of collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party’ ” … . The doctrine “applies only if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action’ ” … . “The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination” … . Here, the issue in this case—the legality of the 2007 Law as applied to plaintiffs—was neither raised by the parties nor decided by the Court of Appeals in Jones I. The issue before the Court of Appeals in Jones I was whether the 2005 Law was constitutional as applied to plaintiffs, i.e., whether the 2005 Law extinguished plaintiffs’ legal use of their land for the purpose of operating a C & D landfill on the entire parcel (see Jones I, 15 NY3d at 145-146). The Court of Appeals held that “the zoning ordinance at issue in this case [i.e., the 2005 Law], which restricted the development of landfills, does not apply to plaintiffs because they acquired a vested right to use their 50-acre parcel as a landfill for construction and demolition debris before the enactment of the zoning law” (id. at 142 [emphasis added]).

Although the 2005 Law and the 2007 Law both regulate landfill operations, they are not identical. The 2005 Law amended the Zoning Law to eliminate sanitary and demolition landfills as a permitted use in the AR-1 zoning district. The 2007 Law did not amend the Zoning Law to eliminate landfills in a particular zoning district but, rather, it enacted a Town-wide ban on solid waste management facilities. In concluding that the 2005 Law did not apply to plaintiffs, the Court of Appeals relied upon its [prior] decisions… . Those cases involve the nonconforming use doctrine, which shields vested property rights from the retroactive effect of zoning ordinances… .

The 2007 Law, however, is a health and safety regulation, not a retroactive zoning ordinance … . Unlike the 2005 Law, the 2007 Law does not “regulate[] the location of certain facilities within particular zoning districts” but, rather, it “generally regulat[es] the operation of [solid waste management] facilities in the interest of public safety and welfare” … . It is well established that “a municipality has the authority, pursuant to its police powers, to impose conditions of operation . . . upon preexisting nonconforming uses to protect public safety and welfare” (id.) and “may even eliminate [a] nonconforming use provided that termination is accomplished in a reasonable fashion” … . Jones v Town of Carroll, 2014 NY Slip Op 07780, 4th Dept 11-14-14