June 30, 2025, Planning Board Special Meeting Transcript - WEHI

08/07/2025 02:56:42 PM Page 101 to 104 of 175 26 of 70 sheets 101 Meaning they bind the case for future incarnations of it1 that contain similar elements.2 MR. PLOCKER: I disagree.3 MR. AFRAN: You can disagree with the law if4 you want, but Planning Board decisions can have res5 judicata effects, therefore what happened in the prior6 application does have relevance, especially since7 there's some elements that are in common and therefore8 it is a relevant subject to go into. What weight the9 board gives, is the boards business, and what dispute10 the applicant takes to that and what rebuttal it gives11 is his business. But this is relevant and it is within12 the scope of what we would call the res judicata effect13 potentially of prior applications. So what happened14 there does have relevance. It depends of course on what15 the witness says, but things that were addressed,16 rejected, known to cause potential issues that are in17 common today or closely related today are relevant. We18 don't close our eyes and ears and minds and pretend19 something didn't happen before this very board. So it20 is relevant. I think we should let him speak and then21 objections or strikes could be made.22 MR. PLOCKER: Respectfully Chairman Bagoff,23 I believe that the doctrine of res judicata can apply to24 a land use hearing, but it is to prevent the25 102 re-litigation or rehearing in front of a board of1 identical, very similar applications. Here I don't2 think anybody in this room would dispute that any prior3 application regarding this block and lot was a very4 different proposal under a very different ordinance,5 under very different circumstances. So to the extent6 that certain decisions or rulings were made with respect7 to those therein different applications, they're highly8 irrelevant to these proceedings and highly prejudicial.9 MR. AFRAN: Well, first thing, you can't say10 somethings prejudicial until you've heard the testimony.11 Secondly, res judicata can apply to elements of two12 plans that are closely related. If the board denied the13 plan because of certain aspects of it and if those14 aspects are seen again here, even though this is now15 three and half times larger, those common elements could16 be subject to res judicata. So why don't we let the17 witness speak and then the board can decide how it wants18 to go.19 CHAIRMAN BAGOFF: So ladies and

alf times larger, those common elements could16 be subject to res judicata. So why don't we let the17 witness speak and then the board can decide how it wants18 to go.19 CHAIRMAN BAGOFF: So ladies and gentlemen20 here in the public and on zoom, res judicata means,21 correct me if I'm wrong, that --22 MR. AFRAN: The thing has been decided.23 CHAIRMAN BAGOFF: -- it has been decided and24 is a matter of judgement. So the question is, are there25 103 common elements to this application and the application1 that was presented to the Planning Board some 17, 182 years ago and how the decision was made then does it3 impact on the decision now.4 Ms. McGovern, I know my feelings on it but I5 am going to ask --6 MS. McGOVERN: So the elements required to7 establish a res judicata applies are that in order for8 the doctrine or res judicata to be applicable it must be9 shown that the second applications is substantially10 similar to the first. The same parties or their privies11 are involved. There must be no substantial change to12 the application itself or conditions surrounding the13 property. There must have been an adjudication on the14 merits in the first case. Both applications must15 involve the same cause of action.16 MR. AFRAN: You're reading a judicial res17 judicata.18 MS. McGOVERN: Yes, and that's applicable to19 land use and it goes into -- the case law on land use20 applications are, you've gone before a board, for21 example looking to build a building that's to close to22 the property line, you're looking for a variance for23 that and the board denies you. And you come back with24 the same type of application but instead of it being25 104 three stories tall, it's two stories tall, but it's1 still close to the property line. That's not2 substantially different. The board isn't going to hear3 it. They've already denied it. So I don't know the4 circumstances, I wasn't around back when that was going5 on, but I will leave it to whatever proffers are going6 to be made as to why this is a substantially similar7 application for res judicata to apply. I don't think8 that's what you're saying, I don't think it was similar,9 from what I understand, but if it was, that would be10 relevant.11 MR. AFRAN: Well, there are elements that12 are similar. I don't know if any members of the board13 were here on the board then, I don't think so. There14 are elements that are

t would be10 relevant.11 MR. AFRAN: Well, there are elements that12 are similar. I don't know if any members of the board13 were here on the board then, I don't think so. There14 are elements that are similar -- I'm sorry. There are15 elements that were similar and the plan is different in16 that it is a multifamily set of buildings rather than17 single family buildings and it is three and half times18 more units. So to the extent there were safety issues19 by the common elements such as roadways, access roads20 that are very similar to the current plan, the fact that21 it is different only means it's even more dense, but22 those safety issues would still be common questions.23 And if the board ruled against the plan when it was24 smaller because the access roads and roadways weren't25