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He Who Hesitates
by Ron Davis

Inaction by opponents of a New York shopping center addition has cost them any chance of stopping the controversial project.

The shopping center is located in Potsdam, in upstate New York, and the addition now houses a Chinese restaurant that has been the focus of the controversy. Opponents of the project are residential neighbors who have objected on grounds that the restaurant location violates local zoning regulations.

In fact, the restaurant site is within 103 feet of a residential district, and the Potsdam building code requires that no restaurant can locate within 200 feet of any residential area. Nevertheless, when the restaurateurs initially proposed building the restaurant two years ago, the Potsdam building inspector granted the permit, though with the stipulation that they obtain a special-use permit as well.

The restaurateurs duly applied for the special-use permit. The local planning board in turn advised them that they would need approval from the Potsdam Zoning Board of Appeals for a zoning “variance.” Such a variance allows a nonconforming use of zoned property. But the granting of a variance required a public hearing, at which opponents of the project appeared and voiced their opposition to any zoning changes.

Ultimately, both the zoning board and the planning board granted the building applications. Construction of the shopping center addition began, and in March 2004 the restaurant opened for business.

Opponents continued their fight, however. They asked the courts to review the proceedings leading to construction of the restaurant.

A New York appellate court ruled, however, that the opponents of the project failed to follow proper legal procedures. Explained the judges, “Neighbors of the shopping center don’t dispute that the restaurant has been open and operational for more than a year, and there is nothing on the face of their appeal or in the record before us to suggest that they sought a court order to prevent construction on the then proposed restaurant site or to prevent the restaurant’s actual opening. Their inaction in that regard renders the controversy moot.” (Durham v. Village of Potsdam, 791 N.Y.S.2d 731)

Decision: March 2005
Published: April 2005



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