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Appellate Court Overturns Five-Year Durational Limit for Historic Mim’s Restaurant’s Parking Lot

Wide-Scale Municipal Practice of Imposing Time Limits Seen as Harming Businesses by Restricting Property Rights

Christian Browne, a Partner with the Firm, successfully appealed a New York State Supreme Court decision that dismissed a restaurant's request to annul a five-year durational limit on the eatery's parking lot that extends into the Town's Residence District.

On April 22, 2015, the Board of Zoning and Appeals (BZA) imposed a five-year durational limit on an approval that allows Mim's Restaurant to provide parking in a part of its property that is within a residential zoning district.

The restaurant then commenced an Article 78 proceeding, seeking to annul the durational limit. On November 18, 2015, the New York State Supreme Court, Nassau County, denied the petition and dismissed the proceeding.

On October 19, 2016, the Supreme Court of the State of New York, Appellate Division, Second Judicial Department, overturned the lower court's decision. In its ruling, the Appellate Court stated that the BZA does not have the authority to impose the durational limit on the restaurant's parking lot because the Town Code does not confer any such power to limit the life of the approval.

Zoning boards routinely impose durational limits on various types of approvals given for commercial uses. Businesses often object to these time restrictions as being unfair and unnecessary burdens on their property rights because, by limiting the life of a zoning approval, zoning boards force businesses to regularly seek renewed permission for their ongoing operations.

"We are pleased with the Court’s decision," Mr. Browne said. "We believe it strikes the proper balance between the rights of a commercial property owner and the need for the Town to protect the interest of the surrounding neighborhood."

Nicholas J. Cappadora, an Associate with the Firm, assisted Mr. Browne on the case.

This was reported by Long Island Business News. Click here to read the article.

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