Zoning Out Fast Food Restaurants

Towns typically use zoning laws to ensure that their communities develop in well-thought –out and perhaps even sustainable ways. Like uses are grouped together.  Buffers are placed between high density and low density uses.  Space is set aside for recreation, industry, natural resource extraction.  Uses that trigger special concerns, like adult book stores, are kept a minimum distance away from schools.

So how does fast food zoning fit into all this?  The Ontario County Supreme Court addressed this issue in Mead Square Commons LLC v. Village of Victor.  Mead Square Commons  bought commercial property on Main Street in the historic Village of Victor and proposed to replace the existing building with  a mixed use building featuring commercial uses downstairs and upscale residential upstairs.   One of the proposed downstairs tenants was a Subway restaurant.

The Village Zoning Code prohibits “Formula Fast Food Restaurants” in the Central Business District.  It defines a Formula Fast Food Restaurant as “any establishment, required by contract, franchise or other arrangements, to offer two or more of the following:

[i] Standardized menus, ingredients, food preparation and/or uniforms.

[ii] Prepared food in ready to consume state.

[iii] Food sold over the counter in disposable containers and wrappers.

[iv] Food selected from a limited menu.

[v] Food sold for immediate consumption on or off premises.

[vi] Where customer pays before eating.”

Mead Square Commons challenged the “Fast Food Ban” as illegal and unconstitutional under New York state law and the United States Constitution. Ontario County Supreme Court disagreed.

The Court first noted that the Fast Food Ban was a Village law entitled to a presumption of constitutionality. The Court did not articulate what compelling public purpose it advanced.   Reading between the lines, it appears the Court agreed with the Village’s claim that §170-13 had a legitimate purpose “to maintain the unique village character and vitality of the commercial district.”   However, the Court did not connect the dots as to how an absolute Fast Food Ban advanced this purpose. Many communities address this concern through the site plan review process.

The Court disagreed with Mead’s argument that the Fast Food Ban illegally zoned based on property ownership, not use because it found that the Fast Food Ban treated all Fast Food owners the same and was based on “neutral planning and zoning principles.”

Finally, the Court rejected Mead’s claim that the Fast Food Ban was an invalid over-regulation of business operation detail because such restaurants were prohibited, not micro-managed.

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