The Riverhead Town Board approved a ban last week on 24-hour operations in three zoning districts, including where a 7-Eleven is proposed in Aquebogue.
An attorney for 7-Eleven said it’s “highly likely” that the convenience chain will file a lawsuit to challenge that decision.
The Town Board approved a prohibition on retail businesses operating between midnight and 5 a.m. in the Hamlet Center, Village Center and Rural Corridor zones, which are mostly along Route 25 and in Polish Town. 7-Eleven is seeking to open a store in the Vinland Commons shopping center.
The prohibition exempts restaurants or bars licensed to sell alcohol for “on-premises consumption,” since that’s regulated by the state Alcoholic Beverage Control law.
Scott Greenspan, the attorney for 7-Eleven, said at a previous meeting that a similar law was challenged in the Village of Westbury in Nassau County in 2002 and won, both in the lower court and in the appellate division, after the ruling was appealed.
That case, called Louhal Properties v. Strada, found that “even if the village could show real substantial evil, an outright ban just wasn’t reasonably related to curing it,” Mr. Greenspan said. “It’s too broad and too overreaching.”
But Supervisor Sean Walter asked why he didn’t consider a 1994 ruling in which the courts ruled in favor of Riverhead Town’s 23-hour ban in the Business-Country Rural zone in Wading River. That ban had been challenged by 7-Eleven’s former parent company, Southland Corporation, which had sought to built a 7-Eleven in Wading River.
On Wednesday, Mr. Greenspan said he had not researched that ruling, and found that in the Westbury case, the court found it was “improper exercise of zoning power to regulate manner of operation of a business, such as the hours of operation.”
In the Southland case, he said, that issue was never raised by Southland, and never came up in court.
Because of this, Mr. Greenspan said he believes the Westbury ruling will override the 1994 ruling, and the town’s newly enacted 24-hour ban will not hold up in court.
Mr. Greenspan said afterward that he will have to check with his client first, but that he would be surprised if they did not choose to file a lawsuit.