Agenda - Planning Commission - 02/02/2012

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Zoning Bulletin November 10, 2011 I Volume 51 No. 21 quired by "contract, franchise or other arrangements" to offer two or more of the following: standardized menus, food preparation and/or uniforms; prepared food in ready to consume states; food sold over the counter in disposable containers and wrappers; food selected from a lim- ited menu; food sold for immediate consumption on or off premises; and customer payment before eating. Because its potential tenant, Subway, was an FFFR prohibited from the Village's Central Business District, Mead challenged the validity of § 170 -13. Mead alleged that the ordinance was "unconstitutional and illegal under New York State law and the United States Constitution." Mead argued that the ordinance was illegal because its prohibition on FFFR was "based, not upon the characteristics of the restaurant, but upon whether or not the owner or operator is under some contractual or franchise arrangement to utilize FFFR criteria." Zoning regulations can only deal with land use, not with the people who own or occupy the land, argued Mead. The Village asserted that % 170 -13 had a legitimate purpose "to main- tain the unique village character and vitality of the commercial district." The Village maintained the ordinance was not based on who owned or operated the restaurant; rather it applied to all types of owners equally and it merely prohibited everyone from operating an FFFR within that district, said the Village. Both parties filed motions for summary judgment, asking the court to find that there were no material issues of fact in dispute and to decide the matter in their favor on the law alone. DECISION: Village's motion granted. The Supreme Court, Ontario County, New York, held that § 170- 13 was not an improper regulation of a specific entity. The ordinance was not unconstitutional. The FFFR ordinance, found the court, was not based simply upon who owned or operated the restaurant. All land - use laws relate to the owner to some extent, noted the court. The court found that this ordinance was not unconstitutional in that it was not "plainly personal" and did not seek to regulate a specific entity. The court found that the ordinance treated all similarly situated owners iden- tically and was based on "neutral planning and zoning principles." Sec- tion 170 -13, found the court, "applie[d] to the entire business district and addresse[d] conduct that affect[ed] the character of the community." See also: Dexter v. Town Bd. of Town of Gates, 36 N.Y.2d 102, 365 N. YS.2d 506, 324 N.E.2d 870 (1 975). © 2011 Thomson Reuters 3