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One of the biggest challenges real estate developers face is dealing with overzealous municipal boards seeking to impose excessive restrictions on projects as a condition of granting land use approvals. Developers frequently agree to such restrictions in the form of restrictive covenants, only to realize afterwards that compliance with such restrictions is so costly that proceeding with the project is economically unfeasible. Such restrictions can be challenged in court, but where the developer has specifically agreed to the restrictions as part of a conditional approval, this challenge would be very difficult to win unless counsel can show the restrictions are illegal or violate public policy. See Summit School v. Neugent, 82 A.D.2d 463, 468 (2d Dep’t 1981). Counsel advising real estate developers faced with this situation may appear to have no choice but to recommend abandoning the project—until now.

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