Development

Supreme Ct., Ontario County

(Doran, J.)

Landowner sought a judgment declaring that the village's regulation of fast food restaurants violated state law and the United States Constitution. The court granted summary judgment to the town, concluding that the village's regulation was not improper regulation of the owner, but was instead a proper regulation of land use.

Landowner plans to build a mixed-use building featuring commercial uses on the ground floor and residential uses on the second floor. One of the potential tenants for the ground floor space is a Subway restaurant. The village code prohibits Formula Fast-Food Restaurants (FFFRs) in the Central Business District. Landowner's parcel is located in that district. The code defines and FFFR as an establishment “required by contract, franchise or other arrangements, to offer two or more of the following.”

Among these are standardized menus, food sold over the counter in disposable containers and wrappers, and food sold for immediate consumption on or off premises. Landowner challenged the validity of the code provision, arguing that the code provision regulated the land user rather than the land use.

In granting summary judgment to the village, the court held that the code provision was not “plainly personal” and did not seek to regulate a specific entity. The court also noted that the regulation applied to the entire business district and addressed conduct that affected the character of the community. Finally, the court held that the code provision was not an invalid over-regulation of the details of business operation.

COMMENT

Courts will generally uphold a municipal ordinance restricting fast food establishments and the services commonly found in them. For example, in Franchise Realty Interstate Corp. v. Rab, 340 N.Y.S.2d 446 the court held that the zoning board properly denied a conditional use permit to McDonald's because the proposed McDonald's did not conform to the zoning ordinance, which prohibited establishments that provide food for consumption outside the premises. In finding that McDonald's qualifies as a place that would generate a “rapid flow … of people, with greater opportunity for litter and aggravating noise and activity” the court upheld the town's blanket prohibition on such uses. Similarly, a municipality may also limit the number of fast food establishments in a particular area to prevent clustering. Axinn v. Town of Newburgh 233 A.D.2d 500. In upholding the denial of a variance for a Boston Chicken to be located next to a Chinese take-out, the Axinn court implicitly approved the Town's regulation that prohibited two fast-food establishments within two thousand feet of each other.

In at least one case, however, the Court of Appeals has invalidated a municipality's amendment of its ordinance to prohibit fast food establishments in response to an already pending application for a building permit. In Burger King v Village of Larchmont, 395 N.Y.S.2d 922 (this case was subsequently affirmed at both the AppDiv and Court of Appeals, the court held that the (the zoning board can't enact amendments) village board's intentional delay in acting on Burger King's building permit application to permit amendment of the zoning code was impermissible. The court held the amendment arbitrary because there was no distinction between the Burger King and other uses in the immediate vicinity, and there was no evidence its presence would result in increased traffic. Unlike Burger King, the Mead Square Commons court upheld the regulation because it found that it did not target any specific entity with a pending application.

When a municipality's zoning code does not restrict fast food establishments specifically, it may still limit their presence by requiring that all restaurants receive a special use permit to operate. In reviewing challenges to permit determinations, a court will generally defer to a ZBA's denial if the ZBA produces evidence of negative effects the restaurant may have on the local community, but will overturn the denial if no such findings can be proffered. White Castle System, Inc. v. Town of Hempstead, 30 Misc.3d 1208(A). In White Castle, the court upheld the ZBA's denial of White Castle's permit to construct a fast-food restaurant, deferring to the board's factual findings about the restaurant's negative impact on adjacent home values and the effect of increased traffic and noise on resident's quality of life. By contrast, in Matter of Hobbs v Albanese, 70 A.D.2d 1049 the court invalidated a permit denial based on alleged traffic issues because record included insufficient evidence to establish that the presence of a McDonald's would generate any more traffic than other uses not subject to a special permit requirement.

Regulation of Fast Food Establishments Upheld

Mead Square Commons, LLC v. Village of Victor

NYLJ 10/18/11, p. 31, col. 1

Supreme Ct., Ontario County

(Doran, J.)

Landowner sought a judgment declaring that the village's regulation of fast food restaurants violated state law and the United States Constitution. The court granted summary judgment to the town, concluding that the village's regulation was not improper regulation of the owner, but was instead a proper regulation of land use.

Landowner plans to build a mixed-use building featuring commercial uses on the ground floor and residential uses on the second floor. One of the potential tenants for the ground floor space is a Subway restaurant. The village code prohibits Formula Fast-Food Restaurants (FFFRs) in the Central Business District. Landowner's parcel is located in that district. The code defines and FFFR as an establishment “required by contract, franchise or other arrangements, to offer two or more of the following.”

Among these are standardized menus, food sold over the counter in disposable containers and wrappers, and food sold for immediate consumption on or off premises. Landowner challenged the validity of the code provision, arguing that the code provision regulated the land user rather than the land use.

In granting summary judgment to the village, the court held that the code provision was not “plainly personal” and did not seek to regulate a specific entity. The court also noted that the regulation applied to the entire business district and addressed conduct that affected the character of the community. Finally, the court held that the code provision was not an invalid over-regulation of the details of business operation.

COMMENT

Courts will generally uphold a municipal ordinance restricting fast food establishments and the services commonly found in them. For example, in Franchise Realty Interstate Corp. v. Rab, 340 N.Y.S.2d 446 the court held that the zoning board properly denied a conditional use permit to McDonald's because the proposed McDonald's did not conform to the zoning ordinance, which prohibited establishments that provide food for consumption outside the premises. In finding that McDonald's qualifies as a place that would generate a “rapid flow … of people, with greater opportunity for litter and aggravating noise and activity” the court upheld the town's blanket prohibition on such uses. Similarly, a municipality may also limit the number of fast food establishments in a particular area to prevent clustering. Axinn v. Town of Newburgh 233 A.D.2d 500. In upholding the denial of a variance for a Boston Chicken to be located next to a Chinese take-out, the Axinn court implicitly approved the Town's regulation that prohibited two fast-food establishments within two thousand feet of each other.

In at least one case, however, the Court of Appeals has invalidated a municipality's amendment of its ordinance to prohibit fast food establishments in response to an already pending application for a building permit. In Burger King v Village of Larchmont, 395 N.Y.S.2d 922 (this case was subsequently affirmed at both the AppDiv and Court of Appeals, the court held that the (the zoning board can't enact amendments) village board's intentional delay in acting on Burger King's building permit application to permit amendment of the zoning code was impermissible. The court held the amendment arbitrary because there was no distinction between the Burger King and other uses in the immediate vicinity, and there was no evidence its presence would result in increased traffic. Unlike Burger King, the Mead Square Commons court upheld the regulation because it found that it did not target any specific entity with a pending application.

When a municipality's zoning code does not restrict fast food establishments specifically, it may still limit their presence by requiring that all restaurants receive a special use permit to operate. In reviewing challenges to permit determinations, a court will generally defer to a ZBA's denial if the ZBA produces evidence of negative effects the restaurant may have on the local community, but will overturn the denial if no such findings can be proffered. White Castle System, Inc. v. Town of Hempstead, 30 Misc.3d 1208(A). In White Castle, the court upheld the ZBA's denial of White Castle's permit to construct a fast-food restaurant, deferring to the board's factual findings about the restaurant's negative impact on adjacent home values and the effect of increased traffic and noise on resident's quality of life. By contrast, in Matter of Hobbs v Albanese, 70 A.D.2d 1049 the court invalidated a permit denial based on alleged traffic issues because record included insufficient evidence to establish that the presence of a McDonald's would generate any more traffic than other uses not subject to a special permit requirement.