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MCMINN v. TOWN OF OYSTER BAY

105 A.D.2d 46 (1984)

Robert McMinn et al., Appellants-Respondents, v. Town of Oyster Bay et al., Respondents-Appellants

Appellate Division of the Supreme Court of the State of New York, Second Department.

December 17, 1984

Attorney(s) appearing for the Case

Gerald P. Halpern, P. C. (Winifred Pasternack of counsel), for appellants-respondents.

Robert Schmidt, Town Attorney (Farrell, Fritz, Caemmerer, Cleary, Barnosky & Armentano, P. C. [George J. Farrell, Jr., and William D. Wall], of counsel), for respondents-appellants.

BRACKEN and BROWN, JJ., concur with LAZER, J. P.; O'CONNOR, J., dissents and votes to modify the judgment so as to declare that the ordinance in question is constitutional and valid as to the plaintiffs, with an opinion.

LAZER, J. P.

The issue is the constitutionality and statutory validity of a zoning restriction that, with a limited exception for two persons 62 years of age or over, restricts occupancy of one-family homes to persons related by blood, marriage or adoption. While the proffered theories of illegality are numerous, we conclude that the restriction is fatally unconstitutional because it violates the due process...

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