NY Appellate Court Annuls Erie County’s Local Law 5 for Drive-Through Windows

This post was authored by Julia Buli, JD Candidate, Touro University Jacob D. Fuchsberg Law Center.

A New York Appellate Court affirmed the Supreme Court’s annulment of Local Law 5, describing the use of drive-through windows, due to the procedural violation of SEQRA when enacting the law.

The Petitioner, a developer in Erie County, attempted to create a restaurant with a drive-through window, but was denied approval by the Town Board of the Town of Orchard Park (Respondent). Petitioner proceeded to file an action for declaratory judgement and money damages for five causes of actions, one of which sought to invalidate Local Law 5 which prohibited businesses located in the Architectural Overlay District from using drive-through windows. Petitioner’s underlying argument in the lower court was that Respondents violated SEQRA by failing to complete a full Environmental Assessment Form (EAF). The court, in agreeance, found that Respondents were in violation of SEQRA since the law was a Type I action. Type I actions require a full EAF statement to determine the significance of the action. Moreover, Type I actions are actions that “change [an] allowable use[ ] within [the Architectural Overlay District] affecting 25 or more acres.”

Respondents appealed, arguing that SEQRA requirements were followed because Local Law 5 simply regulates the type of window, not the allowable uses of property. This regulation is an unlisted action under SEQRA, requiring a short form EAF, which they had completed.

Local Law 5 defines drive-through windows as “windows which allow for service of food and other services or product from a window in a structure which allows for such service without the patron leaving his or her vehicle” and states that such windows are “hereby prohibited in the [222-acre Architectural Overlay District].” By this definition, the Town was essentially defining the use of the window more so than the type of window allowed. Accordingly, Respondents violated the procedural requirements of SEQRA when they only submitted a short form EAF.

Miranda Holdings Inc v Town Board of the Town of Orchard Park, 206 A.D.3d 1662 (NYAD 4 Dept 6/10/2022)