Res Judicata Before Municipal Land Use Boards: An Anniversary

On this date in 1959, the Supreme Court decided Russell v. Board of Adjustment of Tenafly, 31 N.J. 58 (1959). The case is one of the earliest to address the question of when a denial of a development application by a municipal land use board is res judicata so as to bar a subsequent application.

Plaintiff had filed suit to block a development application, asserting that a prior denial by the Board precluded a new application. The Law Division disagreed, but the Appellate Division reversed. The case then came to the Supreme Court.

Justice Burling wrote this opinion for a unanimous Court. In brief summary, he concluded that res judicata is applicable to Boards of Adjustment. However, “[t]hat the same owner and same property are involved in the second application for a variance is not alone sufficient to act as a bar; the objector must also show that the second application is substantially similar to the first, both as to the application itself and the circumstances of the property involved.” Thus, the question for the Board was “on a second application for a variance concerning the same property, is whether there has occurred a sufficient change in the application itself or in the conditions surrounding the property to warrant entertainment of the application.”

From there, the Court observed that “the above requirement [was to] be liberally construed in favor of the applicant[, which] would be in accord with the purpose of boards of adjustment to provide the necessary flexibility to the zoning ordinance.” And the Board’s judgment on the res judicata question, “as any other made by the board, will be overturned on review only if it is shown to be unreasonable, arbitrary or capricious.”

Here, the second application differed from the first in a number of respects. The applicant submitted new plans, which “provide for an increase of five feet in the proposed setback which, in the instant case, amounts to a 20% increase. Also the total area to be occupied by the dwelling has been decreased from 18% to 12%. There is a curve in the road which appears to diminish the impact of the dimensional difference between the proposed setback and the setback of the dwelling on the adjoining lot.” Given those circumstances, the Court deferred to the Board, reversed the Appellate Division, and upheld the approval.

Today, this ruling does not seem unusual. But in 1959, New Jersey land use law was still developing (and would later be revolutionized by passage of the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq.). The Russell ruling has been cited nearly 50 times since it was issued, including by the Supreme Court as recently as 2010 and by the Appellate Division as recently as 2022. It remains a guidepost in New Jersey land use jurisprudence.