Fair Haven Grapples With Fast Food Restaurant Ban

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FAIR HAVEN –  In this borough of mom-and-pop shops and unique eateries, there are no fast food chains. That’s because local legislation passed in 1973 prohibits them.

With a Dunkin’ coffee-and-donuts shop looking to open a store in the Fair Haven Shopping Center on River Road, that ordinance is getting a second look. But the problem is, nobody can find the local law in the code books.

The issue stems from mistakes made during the recodification of Fair Haven’s code book in 2002 by an outside vendor. Recodification is the lengthy process of reorganizing and consolidating old laws and their newer amendments. The gaffe, discovered by a council member in 2005, was reported in The Two River Times at the time.

At a borough council meeting Monday night at which the fast food ban was discussed, Fair Haven’s current borough attorney Sal Alfieri said he has not seen the 1973 ordinance that created the ban, nor has current borough clerk Allyson Cinquegrana been able to locate it.

“It may not exist. We may not be able to provide it for you,” Alfieri said.

The 1973 ordinance, which withstood a legal challenge from the McDonald’s fast food chain, banned fast food establishments designed for over-the-counter service of prepared or pre-prepared food, in addition to diners, roadside stands and mobile lunch carts.

Resident Tracey Cole, who opposes the Dunkin’ shop, went looking for the original ban only to find it was missing. At the meeting, she argued that the ordinance, which was not subject to recodification or amendment because it is, in fact, lost, could still be considered “on the books.”

“The simple language written and defended in 1972 and adopted in ’73 was with us and doing its job until 2002,” Cole said.

“Whatever was inadvertently excluded can’t just be put back in, even if it was inadvertently excluded,” Alfieri said. “Two codifications later, there’s no way we can say this law is still in place.” 

The Dunkin’ would occupy a 2,000-square-foot space in the shopping center’s breezeway, which connects the front and rear parking areas, previously occupied by Laird’s Stationery.

At previous meetings, some residents opposed to the Dunkin’ said a store would be redundant and unnecessary, with two franchises already in Red Bank and another in Sea Bright. Others said they wanted to protect Fair Haven’s small town ambience from the creep of ubiquitous chain stores and fast food – which led to the hunt for the local ordinance – or that traffic would increase in bike-friendly Fair Haven.

Former borough council member Beatrice Sena, who served on the council in 2002, called the code book omission “frightening.” Sena said she recalled opposing the subsequent adoption of the reworked code book because of the lost code, which she believes included several pages of borough law.

That ordinance was lost during the two previous recodifications. According to borough planner Fred Heyer of Heyer, Gruel & Associates, the only way to make it enforceable once more is through a legal adoption process.

Mayor Ben Lucarelli recommended the council task its planning consultant and zoning officer with reviewing the 1973 ordinance and cleaning up any ambiguities so it could be presented to a committee for eventual consideration for adoption.

Heyer said, during this process, it’s important to be mindful of the “unintended consequences” of tweaking an ordinance and the negative impact that may have on current establishments.

Resident Michael Sena said the borough council has a choice to make.

“Our master plan is one of sidewalks, walking, biking, that kind of environment. But I’m also hearing that we have to watch out for our business owners. But I think we have to decide, one or the other, with this new ordinance. The community that I think Fair Haven wants to be is pedestrian, family and kid-friendly. I hope that’s what the council considers.”

Heyer is expected to return before the council in two weeks with a list of recommendations.

The proposed location for a Dunkin’ franchise at the Fair Haven Shopping Center on River Road. Photo by Chris Rotolo

The Dunkin’ application requires no variances but does need a change of use from retail to restaurant to comply with zoning ordinances. A date before the planning board has not yet been set.

This article was first published in the May 16-22, 2019 print edition of The Two River Times.