By Chris Rotolo
FAIR HAVEN – What is the definition of a fast food restaurant?
Reporting on behalf of the Fair Haven Restaurant Committee during an Aug. 15 meeting of the governing body, zoning board attorney Michael A. Irene aimed to set the record straight by recommending an overhaul of existing regulatory language that will slow the roll, bun or taco shell of any fast food establishment seeking sanctuary within the municipality.
In response to a contentious application for a Dunkin’ coffee shop – which opened its doors in the borough’s primary River Road business district in December 2020 – Irene described the committee’s 2-plus-year process of existing ordinance review, case law study, community engagement and the scrutiny of language that has now barred any future fast food establishments from setting up shop in Fair Haven.
“Our concern was the use of the land, not the user,” Irene said. “The effort was to fine-tune the language. And, after that process, in the ordinance, fast food restaurants, drive-thru restaurants and drive-thru windows are now prohibited.”
Irene said the biggest question the committee needed to answer was how to define what a fast food restaurant is, and to do so in a manner would not impact any current community establishments like ice cream parlors and delis.
The newly adopted verbiage defines such an eatery as:
“…An establishment or business essentially designed to quickly prepare, package and dispense to customers for quick and ready consumption a limited or uniform or standardized variety of food and beverage products; and where the menu and/or practices of the establishment or business are generally prescribed by contractual franchise or other such agreements to facilitate rapid service and turnover of customers…”
Despite a shallow pool of zoning case law to glean information from, Irene said the committee recognized its Fair Haven community while examining a 1964 New Jersey Supreme Court case originating from the borough of Fair Lawn.
“In this case, Fair Lawn is described as a community that is residential in nature, with several business districts surrounded by heavily developed residential areas. That sounds like Fair Haven,” Irene said. “The grounds they used for banning fast food restaurants by ordinance stemmed from concerns about rowdiness, traffic, noise, litter and public safety. That sounds a lot like Fair Haven. In trial court the ordinance was struck down, but the Supreme Court said, ‘You can regulate any piece of land as long as… the regulations you impose are legitimate and reasonably tailored to your circumstances.’ ”
Irene also quoted a 2006 case in Saddle Brook in which the municipality already had Burger King, McDonald’s and KFC franchises, but drew the line when a Wendy’s application came before its zoning board.
The committee also used precedent set by a 2019 case from Jersey City in which the new mayor established an ordinance prohibiting chain restaurants from operating in redevelopment zones with at least 10 residential units that were within 300 miles of another franchise location.
“The reason, we found, that there’s such little case law on land use issues regarding fast food restaurants is because the notion of restaurants has evolved so quickly over the years,” Irene said. “Years ago, it was table service and fast food. Then you added causal, and fast casual, and so many little subcategories. And so many of the ordinances across the state have failed to keep pace with the evolution.”
Irene also noted most modern, detailed ordinances related to fast food came from communities located along highways.
Council member Meghan Chrisener-Keefe questioned whether the newly adopted verbiage – namely the word “quickly” used to describe the preparation, packaging and distribution of food – created a gray area that would place an undue burden on zoning board officers.
She also expressed concern that the language could dissuade potential restaurant applicants from exploring Fair Haven as an option.
“I’m wondering if there were discussions about whether or not these definitions could be easily digested by restaurant owners? If someone is considering four towns to establish their business, and they’re concerned about the verbiage, they may just take their operation elsewhere where there is a clear fit,” Chrisener-Keefe said.
Irene said the committee took time to carefully craft the regulatory language and test it against previously established community eateries, as well as any future applicants, to ensure there were no conflicts.
“The goal was to fine-tune the language enough to regulate against what we intended to regulate: the fast food restaurant. Not restaurants,” Irene said. “We would love to have had language we could simply pull out. We would love to have been able to replace Fair Lawn or Saddle Brook with Fair Haven and call it a day. But for the sake of our community establishments already here, we just couldn’t do that.”
The article originally appeared in the August 25 – 31, 2022 print edition of The Two River Times.
