As Riverhead considers banning businesses from operating overnight in certain areas of town, a lawyer representing 7-Eleven told town board members last week that the ban would be “illegal” and would likely be struck down in court.
“It is 7-Eleven’s belief that this proposed ban on overnight operations can’t be sustained,” Scott Greenspan, an attorney with the Amato Law Group, said at a town board meeting last Wednesday.
The ban, which prohibits retail businesses from operating between the hours of 12 a.m. and 5 a.m., would affect retail businesses within three zoning districts abutting rural and residential areas including Polish Town and much of the Main Road in Aquebouge, Jamesport and Calverton.
The ban would not affect businesses within the heavily commercialized Route 58 corridor, and it would not apply to restaurants, bars, nightclubs or anywhere that sells alcohol for “on-premises consumption.”
Town board members began discussing the ban last month in response to a proposed 7-Eleven at Vinland Commons, a Main Road shopping center at the end of Tuthills Lane in Aquebogue.
“These [zoning districts] are more residential transition districts,” Town Supervisor Sean Walter told Greenspan last Wednesday. “We’re trying to protect the peace and tranquility of the residents in the transition districts, which transition from heavy commercial to purely residential.”
But Greenspan told the town board that similar bans have been struck down in court elsewhere.
“We believe it won’t survive a legal challenge for several reasons, and we’re trying to avoid that,” he said.
Greenspan compared Riverhead’s ban to similar legislation in the Village of Westbury, which attempted to ban overnight business operations within 100 feet of residential property in 2002. That ban was struck down by a county supreme court after 7-Eleven sued, and an appellate court upheld the decision when the Village of Westbury appealed.
“This isn’t just my legal opinion or a guess,” Greenspan said. “There’s case law. We think the ban is pretty similar.”
Greenspan argued that, like the Village of Westbury, Riverhead would be overstepping its zoning and police powers by imposing a ban on 24-hour operations. “A municipality can’t regulate the manner of operation of a business,” he said. “One of the hallmarks of that is if the municipality tries to regulate the hours of operation.”
The town also needs to prove a “real or substantial evil” in order to pass a law interfering with the owner’s enjoyment of the property, he said, and the law would need to provide a “reasonable cure” to that evil.
“The court found that, even if the village could have shown a real and substantial evil – even if they have support that overnight operations cause some kind of menace – that an outright ban was not reasonably related to curing it,” Greenspan said. “It was too broad and too overreaching.”
Town Supervisor Sean Walter pointed out that Riverhead Town has already successfully passed legislation prohibiting 24-hour operations in Wading River – legislation that was upheld in court when 7-Eleven challenged it in 1994.
“Here in Wading River we were successful in having the ban sustained,” Walter said.
“The most recent case law says otherwise,” said Greenspan. Westbury’s ban on 24-hour operations was struck down more recently than Riverhead’s ban in Wading River was upheld, he said. “I think [that decision] is now the controlling precedent,” he said. “So we do believe, based on this decision, that this ban would probably not survive a court challenge.”
Greenspan also argued that the proposed ban would illegally pre-empt the New York State Alcoholic Beverage Control law by effectively prohibiting the sale of alcoholic beverages during hours that the Alcoholic Beverage Control law would otherwise allow them to be sold.
“What the case law says is that if local law – even if it’s more mutually worded with a broader application – has the effect of rendering illegal that which is permitted under the ABC law, that’s pre-empted under the ABC law.”
7-Eleven wants to avoid taking the town to court, he said. “Court’s great, but if there’s a way to work it out and we can have a constructive dialog, that would be great,” Greenspan said. “But ultimately it’s going to be your decision.”
7-Eleven has been trying to open a store at the Vinland Commons shopping center since September 2014. Riverhead has fought Vinland Commons for the past year, rejecting the 7-Eleven’s application to the town building department. But after Vinland Commons sued the town, a New York State Supreme Court justice ruled in favor of Vinland Commons last October.
Riverhead Town is appealing the state’s decision, but the proposed ban on overnight operations is a last-resort measure to prevent a 24-hour convenience store from opening in Aquebogue.
It would be the 7-Eleven’s fifth and easternmost location in the Town of Riverhead, though there are locations further east in Mattituck, Cutchogue, Southold and Greenport.
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