Posted by: Patricia Salkin | December 17, 2011

NY Trial Court Holds Upholds Constitutionality of Ordinance Prohibiting Formula Fast-Food Restaurants

Mead Square Commons, LLC (“Mead”) owner of real property in the Central Business District in the Village of Victor (the “Village”), proposed a new mixed use building for its property with one potential tenant being a Subway restaurant.

The Village Code§170-13 prohibits “Formula Fast-Food Restaurants” in the Village’s Central Business District. “Formula Fast Food Restaurants” (“FFFRs”) are defined as any establishment that is required 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 limited 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, alleging that the ordinance was unconstitutional and illegal under both State and federal  constitutions.  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 maintain 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.

The Supreme Court, Ontario County, held that § 170-13 was not an improper regulation of a specific entity and that the ordinance was not unconstitutional. The Court said that the FFFR ordinance 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 identically and was based on “neutral planning and zoning principles.” The Court said that  Section 170-13, “applie[d] to the entire business district and addresse[d] conduct that affect[ed] the character of the community.”

Mead Square Commons, LLC v. Village of Victor, 2011 WL 4537068 (N.Y. Sup 2011)

This summary is based on an abstract appearing in the November 10, 2011 Quinlan Zoning Bulletin (vol. 5 no. 21, Thomson Reuters)


  1. Soon, some important person (solely in their own mind) will be checking on what the metallurgy of your dining utensil is before your first bite ?

    Seems like an appeal matter ?

  2. Hi-Thank you for your excellent blog!

    I wanted to see the zoning passage about formula fast food restaurants regarding your post on the Mead Square Commons, LLC v. Village of Victor, 2011 WL 4537068 (N.Y. Sup 2011). I was not able to find Village of Victor Code subsection 170-13 or reference to FFFRs or the central business district. Please advise.

  3. This decision would have been more satisfying had the Court articulated the compelling public purpose advanced by the FFFR. It appears that he agreed with the VIllage’s argument that §170-13 had a legitimate purpose “to maintain the unique village character and vitality of the commercial district” but didn’t connect the dots.

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