Can Local Boards Regulate the Hours of Operation of a Business?
Municipal officials often ask whether, and by what means, a municipality can regulate the hours of operation of a business. The answer to this seemingly easy question is quite complicated.
Zoning conditions and restrictions imposed by a municipal board in the exercise of its zoning powers must be related to the use of land and must be for a proper purpose of zoning.1 The conditions imposed must be reasonable and “directly related to and incidental to” the proposed use.2 The courts have held that municipalities are prohibited from using their zoning powers to regulate the internal operations or the details of a business.3 Zoning conditions and restrictions that are aimed at controlling the details or operation of an owner’s use of land are outside of a municipality’s delegated authority.4
The question, then, is whether the hours of operation of a business is a component of its “internal operation”. If it is, then it’s not within the reach of a municipality’s zoning power.
Restricting Hours of Operation through Conditions
New York courts have struck down conditions imposed by planning and zoning boards that regulate the hours of operation of a business as an attempt to regulate its internal operations or details, unless there appeared to be substantial evidence relating the hours of the business’s operation to its impact on the surrounding neighborhood.
In Matter of Schlosser v. Michaelis,5 the zoning board of appeals granted the petitioner’s application for a use variance to use the property as a wholesale florist business, subject to certain conditions, such as limiting the number of employees and the hours and days of operation. The court invalidated those conditions stating that “the [b]oard of [a]ppeals has no power to impose conditions which apply to the details of the operation of the business and not to the zoning use of the premises.”6
In Summit School v. Neugent,7 the petitioner applied to the zoning board of appeals for a variance and a special use permit to use the property as a school for handicapped children. The variance and special use permit were granted subject to numerous conditions, including conditions which limited the months, days and times of the classes.8 The court stated that the conditions imposed went beyond the power conferred upon the zoning board of appeals to impose conditions on administrative permits.9 The conditions did not relate to the use of the land but rather to the manner of operation of the school. Therefore, the conditions were held to be invalid as an improper “attempt to control the details of the operation of a private school.”10
In Old Country Burgers Corp., Inc. v. Town Board of Town of Oyster Bay,11 the petitioner, Burger King, applied for a special use permit to operate a drive-through window. The town board granted the application subject to certain conditions on its use. One such condition was a prohibition on the use of the drive-through “between the hours of 8 a.m. and 9:30 a.m.; 12 noon and 1:30 p.m.; and 5 p.m. and 6:30 p.m.”12 The court held that this condition, which prohibited the operation of the drive-through window during peak meal-time hours, was “an impermissible attempt to regulate the details of the operation of the [business].”13 Although the town sought to justify the condition based on increased traffic, the court found that “the condition was not based upon substantial evidence” and therefore invalidated the condition.14
In Master Billiard Co., Inc. v. Rose,15 the zoning board of appeals granted an application for a special use permit that imposed several conditions, including a restriction on the billiard parlor’s hours of operation.16 The court held that four of the ten conditions imposed, including the hours of operation restriction, did not relate to the use of the land but “to the internal operations of petitioner’s business and were unrelated to the purpose of the zoning.”17 The court found that
these conditions were outside the scope of the permit application, and therefore, unlawful.
These cases have established a trend in the law in which conditioning administrative approvals based upon the hours of operation of a business is regarded as an improper attempt to regulate the internal operations of a business. These cases involved conditions which were invalidated as having an insufficient relationship to the physical use of land.18 The courts have held that “[c]onditions . . . must relate to the proposed use of the property, and not to the manner of the operation of the particular enterprise conducted on the premises.”19
Some courts have upheld time-related conditions where the record substantiates a relationship between hours of operation and neighborhood impact. In the case of Twin Town Little League Inc. v. Town of Poestenkill,20 the court upheld conditions imposed on a site plan for a little league baseball complex. The planning board had imposed nine conditions upon the approval of the site plan, including restrictions on the hours of operation. The court held that the conditions were supported by substantial evidence and that they were “directly related to and incidental to the proposed use of the property.”21 The court recognized that the conditions were necessary to mitigate the adverse impacts, specifically neighborhood concerns regarding the depreciation of property value due to increased noise, traffic and lighting, while ensuring compatibility with the neighborhood.22 The court regarded these conditions as acceptable, finding the conditions to be “a reasonable attempt to alleviate these concerns . . . as they relate directly to the use of the land.”23 In a recent case, the court affirmed a city zoning board of appeals’ imposition of a condition limiting a pizzeria’s hours of operation, as “....proper because it relates directly to the use of the property and is intended to protect the neighboring residential properties from the possible adverse effects of the petitioner’s operation, such as the anticipated increase in traffic congestion, parking problems, and noise...”.24
Limiting Hours of Operation through Zoning Legislation
Some courts appear to distinguish between administrative and legislative acts (the adoption of a local law or ordinance). Those courts have expressed the view that certain conditions, such as hours of operation, can be dealt with legislatively rather than administratively.25
The law is unsettled with respect to whether a governing board can legislate the hours of operation of a business under its zoning authority. The fundamental rule that zoning conditions and restrictions must relate to the physical use of the land and not the operation of an applicant’s business also applies to zoning legislation; the determination must be made as to whether the regulation of the hours of operation of a business is a legitimate purpose of zoning.26
In Southland Corp. v. Janoski,27 the Supreme Court in Suffolk County upheld a local law rezoning a retail district which limited the hours of operation of retail businesses between 12 a.m. and 5 a.m.28 The court found the local law to be a proper exercise of the town’s police powers enacted to encourage harmony between businesses and residents and to promote the “health, safety, peace and comfort” of local residents.29 The local law served the legitimate governmental purpose of controlling traffic and noise. The local law was upheld as constitutional and affirmed on appeal.30
In contrast, the Supreme Court in Nassau County, in Louhal Properties, Inc. v. Strada,31 held that the Village of Westbury’s law, which restricted the operation of certain businesses between the hours of 11 p.m. and 6 a.m, was an invalid exercise of zoning power.32 The court stated that “applicable case law draws a dichotomy between those regulations that directly relate to the physical use of land and those that regulate the manner of operation of a business or other enterprise.”33 The court based its decision on the rule derived from Old Country Burgers, where the Second Department held that “absent substantial evidence showing the external impact of the land use in question, a restriction on hours of operation must be deemed an impermissible attempt to regulate the details of the operation of a business.”34 The court, in Louhal, felt that “[t]he Village [had] failed to adequately substantiate its claim with respect to the adverse impact of 24-hour uses on neighboring properties.”35 There was no evidence presented that businesses open 24 hours had a greater impact on neighboring properties than businesses operating during regular business hours.36
Although reaching different conclusions, the two cases dealing with local laws limiting the hours of operation of a business appear to use the same test: if provided with substantial evidence showing that restricting the hours of operation relates to the physical use of land and not to the internal operation of a business, the local law will likely be upheld as a legitimate exercise of the municipality’s zoning power.37
Restricting Hours of Operation through Municipal Police Power Regulations and State Laws
which Authorize the Regulation of Hours of Operation
As distinguished from zoning, the courts have not prohibited municipalities from regulating the hours of operation of a business through the use of its general police powers. There is no requirement that such regulations relate to the physical use of the land, nor is there a prohibition against the regulation of the internal operations of a business.
The State Constitution permits municipalities to adopt and amend local laws for the preservation of health, safety and welfare of their citizens.38 Any regulations enacted under a municipality’s police power must be reasonable and reasonably related to a legitimate governmental purpose.39 For instance, in Town Board of the Town of Southampton v. 1320 Entertainment, Inc.,40 the Town Code restricted the hours of operation of the defendant’s automobile racetrack. The court held that “insofar as [the] Town Code . . . imposes reasonable limitations upon the days and hours during which races may be conducted, it is a proper exercise of the town’s police powers.”41
Municipalities may regulate the hours of operation of a business through specific statutory authority. For example, section 130 of the Town Law allows for the regulation of certain uses and businesses, specifically allowing the town board to establish the opening and closing hours of all beverage and eating places.42 A municipality may also regulate hours of operation under certain provisions of the Municipal Home Rule Law. The Municipal Home Rule Law allows a municipality to adopt or amend local laws, pursuant to its police powers, for the regulation or licensing of businesses.43 As long as the municipality is not regulating by means of its zoning powers, the broad authority to regulate or license businesses under the Municipal Home Rule Law appears to encompass the regulation of hours of operation.44
The courts have held that without showing a direct impact on the land, regulating the hours of operation of a business is not a proper purpose of zoning, but rather an improper attempt to regulate the internal operations of a business. While municipalities are restricted in their ability to regulate using their zoning powers, there does not appear to be a similar restriction on enacting legislation for non-zoning purposes.
1 See St. Onge v. Donovan, 71 N.Y.2d 507, 515, 527 N.Y.S.2d 721 (1988), citing Matter of Dexter v. Town Board, 36 N.Y.2d 102, 105, 365 N.Y.S.2d 506 (1975), which held that conditions imposed by local zoning boards must be reasonable and relate only to the land at issue and not to the person who owns or occupies the land. See also Province of Meribah Society of Mary Inc. v. Bd. of Zoning Appeals of Inc. Vil. Muttontown, 148 A.D.2d 512, 538 N.Y.S.2d 850 (2d Dept., 1989); Rathkopf, A.H., Rathkopf, D.A. & Ziegler, E.H., Jr., The Law of Zoning and Planning, § 2:14 (rev. 2005), explaining that the authority under the zoning enabling statutes to impose restrictions or conditions must relate to the “objects and purposes of the enabling legislation”; Salkin, P.E., New York Zoning Law and Practice §§ 29:42 & 30:05 (4th ed., 2002).
2 See St. Onge v. Donovan, 71 N.Y.2d 507, 516 (1988), quoting Matter of Pearson v. Shoemaker, 25 Misc.2d 591, 592, 202 N.Y.S.2d 779 (Sup. Ct., Rockland Co., 1960); N.Y. General City L. § 27-a & b(4); N.Y. Town L. § 274-a(4) & b(4); N.Y. Village L. 7-725-a(4) & b(4) (“The authorized board shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to....[a proposed project]”); Salkin, supra, note 1 at § 30:05)
4 See Rathkopf, supra, note 1 at §§ 2:14 & 60:18, explaining that zoning restrictions and conditions relating to the use of land, such as landscaping, traffic access and open space, are proper objectives and purposes of regulation authorized and delegated by the zoning enabling statutes.
6 Id. at 941, 238 N.Y.S.2d at 434-35; Rathkopf, supra, note 1 at § 60:18, explaining that several court decisions have held that the zoning enabling authority extends to the regulation of the use of land and that zoning which controls the details of an owner’s operation is tantamount to an ultra vires act, beyond the statutory authority delegated.
9 Id., at 467, 442 N.Y.S.2d at 77, stating that there is strong public policy against a municipality imposing conditions on the details of the operation of the educational process. The court held that it is improper and beyond the powers conferred upon a municipality to impose such conditions.
16 Id., restricting the hours to “Sunday-Thursday from 10 A.M. to 12 midnight. Friday and Saturday from 10 A.M. to 1 A.M. of the following day and on evenings before holidays to 1 A.M. of the holiday.”
18. See Old Country Burgers Corp., Inc. v. Town Board of Town of Oyster Bay, 160 A.D.2d 805, 805, 553 N.Y.S.2d 843, 844 (2d Dept., 1990); Schlosser v. Michaelis, 18 A.D.2d 940, 238 N.Y.S.2d 433 (2d Dept., 1963); Summit School v. Neugent, 82 A.D.2d 463, 442 N.Y.S.2d 73 (2d Dept., 1981); Louhal Properties, Inc. v. Strada, 191 Misc.2d 746, 743 N.Y.S.2d 810 (Sup. Ct., Nassau County, 2002) , aff’d 307 A.D.2d 1029, 763 N.Y.S.2d 773 (2d Dept., 2003), explaining that a trend has been created where petitioners were unable to or did not provide the court with substantial evidence demonstrating that the conditions related to the use of land and not to the manner of operation of the owner’s business.
19 Old Country Burgers Corp., Inc. v. Tn. Bd. of Tn. of Oyster Bay, supra, at 805, 553 N.Y.S.2d at 844 (citing Province of Meribah Society of Mary v. Village of Muttontown, 148 A.D.2d 512, 538 N.Y.S.2d 85); Summit School v. Neugent, supra, finding that the power to grant conditions is not unlimited.
21 Id. at 813, 671 N.Y.S.2d at 833, alluding to the requirements in N.Y. Gen. City L. § 81-b, N.Y. Town L. § 267-b & N.Y. Village L. § 7-712-b, that conditions be reasonable and directly related to the proposed use of the property and that such conditions “be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community”.
24 Milt-Nik Land Corp. v. City of Yonkers, 24 A.D.3d 446, 806 N.Y.S.2d 217 (2d Dept., 2005). See also Matter of 1833 Nostrand Ave. Corp. v. Chin, 302 A.D.2d 460, 754 N.Y.S.2d 581 (2d Dept., 2003); Taylor Tree, Inc. v. Planning Board of Town of Montgomery, 272 A.D.2d 336, 707 N.Y.S.2d 193 (2d Dept. 2000); Town of Richmond v. BSD Soto, Inc., 6 Misc.3d 1040, 800 N.Y.S.2d 358 (Sup. Ct., Ontario Co., 2005).
25 See Oakwood Island Yacht Club, Inc. v. Board of Appeals of City of New Rochelle, 32 Misc.2d 677, 223 N.Y.S.2d 907 (Sup. Ct., Rockland Co., 1961). The court held that the condition attached to the issuance of a special use permit, imposing a curfew on the use of boats between 9 P.M. and 7 A.M., was an unreasonable restriction unrelated to the use applied for and thus beyond the power of the board. The court based its decision on the fact that nothing authorizes the board to impose such restrictions, holding that such a restriction “is a matter for legislative, not administrative, consideration”. See also De Ville Homes, Inc. v. Michaelis, 201 N.Y.S.2d 129 (Sup. Ct. Nassau County, 1960), differentiating between legislative and administrative power, implying that certain conditions should be left for the governing board to deal with through legislation. The court stated “The power granted to or inherent in such Boards to impose reasonable conditions under proper circumstances applies to use of premises and not details of operation”.
26 Geneslaw, H., The Validity of Special Use Permit and Site Plan Conditions of Approval, Environmental Law in N.Y., vol. 7 no. 1, at 16 (January 1996) “To the extent that conditions imposed by a board restricting operation of an applicant’s business are invalid as improper purposes of zoning, it should follow that the same conditions would also be invalid as improper purposes of zoning even if expressly set forth in the zoning law.”
32 See Village Law § 7-700, listing specific items, all relating to the use of land, that a village may regulate under such authority, such as size, height and location, and use of buildings. See also De Sena v. Gulde, 24 A.D.2d 165, 171, 265 N.Y.S.2d 239 (2d Dept., 1965), holding that zoning power must "operate in relation to the use of land and not for the accomplishment of purposes extraneous to that relation".
33 Louhal Properties, Inc. v. Strada, 191 Misc.2d at 751, 743 N.Y.S.2d at 814; see, e.g., Schlosser v. Michaelis, 18 A.D.2d 940, 238 N.Y.S.2d 433 (2d Dept., 1963) and Summit School v. Neugent, supra; see also St. Onge v. Donovan, supra; Rathkopf, supra, note 1 at § 1.02[a], explaining that regulations relating to the use of land or to the impact of land use on neighboring properties are treated differently than regulations that restrict the manner of operation.
37 See id., stating that the courts have generally upheld regulations directed at the physical use of land, “such as light, air quality, safety, population density and traffic . . . property values, aesthetics or environmental values.”; see also St. Onge v. Donovan, supra (citing Matter of Pearson v. Shoemaker, supra.
38 See N.Y. Const. Art. IX § 2(c)(ii): “every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to:....(10) [t]he government, protection, order, conduct, safety, health and well-being of persons or property therein.”; see also Mayor of City of New York v. Council of City of New York, 182 Misc.2d 330, 335, 696 N.Y.S.2d 761, 765 (Sup. Ct. New York County, 1999), holding that the “home rule provision of N.Y. Const. art. IX, § 2, cl. (c) gives local governments broad police powers relating to the welfare of their citizens....” (citing New York State Club Assn., Inc. v. City of New York, 69 N.Y.2d 211, 513 N.Y.S.2d 349, 505 N.E.2d 915 (1987), aff’d 487 U.S. 1, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988)).
39 See People v. Goodman, 31 N.Y.2d 262, 338 N.Y.S.2d 97, 290 N.E.2d 139 (1972); see also Fred F. French Investing, Inc. v. City of New York, 39 N.Y.2d 587, 385 N.Y.S.2d 5, 350 N.E.2d 381 (1976); see also 1991 N.Y. Op. Atty. Gen. (Inf.) 1108, stating that a “legitimate governmental purpose is one which promotes the public health, safety and well-being.”; see also 1982 N.Y. Op. Atty. Gen. (Inf.) 227, stating that the “broad grant of the police power is limited by the requirement that its use must be reasonable.”
41 Id. at 388, 653 N.Y.S.2d at 365 (citing Matter of Borer v. Vineberg, 213 A.D.2d 828, 623 N.Y.S.2d 378 (3d Dept., 1995). In footnote 3, the court explained that the city may enact an ordinance regulating the hours of operation . . . if it was reasonably necessary to promote a public interest.
42 See Town Law § 130(13), providing that the town board may regulate “all places selling or offering for sale at retail for consumption on the premises any beverage or food stuff; providing for sanitation and cleanliness and the inspection thereof and defining the opening and closing hours and all other matters related thereto.” Municipalities are, however, preempted by Alcoholic Beverage Control Law from legislating with respect certain aspects of the sale of alcoholic beverages. See Matter of Lansdown Entertainment Corp. v. New York City Dept. of Consumer Affairs, 74 N.Y. 2d 761, 764, 545 N.Y.S.2d 82, 543 N.E.2d 725 (1989), stating that the Alcoholic Beverage Control Law specifically preempts local regulation “concerning the subject matter of hours of operation, distribution, or consumption.”; see also People v. De Jesus, 54 N.Y.2d 465, 446 N.Y.S.2d 207, 430 N.E.2d 1260 (1981).
44 See, e.g., Town Law § 136, granting municipalities plenary power with respect to the licensing of businesses. The statutory language is broad, arguably authorizing the regulation of a business’ hours of operation. Regulating business, under Town Law §§ 130 & 136, is limited to the businesses listed in the relevant section, and only through a municipality’s police powers can an unlisted business be regulated. See also, General City Law § 20(13), granting cities the power “[to] maintain order, enforce the laws, protect property and . . . for any of said purposes to regulate and license occupations and businesses.”