Questionable Judgement Rendered on Chick-fil-A
This evening, Thursday, March 20, 2025, there was an abomination of justice.
In a desperate bid to place a fast food drive-through on a parcel where one has no business being (either under the law or good sense), Chick-fil-A’s lawyers requested a nonsensical interpretation of Town Zoning Code that would set a reckless precedent, essentially allowing an unelected Town official to overturn Zoning code on a whim. On Thursday it was revealed that not only did the Town allow the requested interpretation, but it did so as quietly as possible.
Friends, we will NOT be quiet about this.
For background, our attorney provided the town with an analysis of Chick-fil-A’s application back in December (Counsel Retained in Fight Against Chick-fil-A), calling out the development as being illegal at the site in question under Penfield’s Routes 441/250 Overlay District, or TFOD. This is one of the three types of Overlay District defined in Town Code.
What’s an “Overlay District”?
Many of us are familiar with normal zoning districts. The town is broken into districts that all have some special rules about what you can and cannot do with the land and how parcels need to be laid out. This is what keeps them from building a factory next to your preschool, for example. It’s why most of us can’t keep horses in a single family suburban home or surround our properties with 30 foot tall fences. The rules are based on common-sense approaches to making the areas of the town harmonious.
In some areas, it was decided that some extra rules applied in some areas that otherwise would be zoned in several different ways. Rather than create a ballooning number of district types to cover every permutation, Overlay Districts were devised that could be “layered over” other base districts to add or change some of the rules while still keeping most of the rules of the underlying district. These overlays were made necessary for a few different reasons, and in the case of TFOD, the reason was that the intersection of routes 441 and 250, and the surrounding area, are sort of a mess.
Or, as the Town Code itself puts it, it is “the only area in the Town located at the intersection of two heavily traveled New York State arterials. It is impacted by rapid growth in adjacent communities both to the south and east…”
Ok, so what’s the problem?
Keep in mind that the only thing the TFOD does is change the list of allowable uses in the underlying district. Some uses are explicitly kept, others removed. The Chick-fil-A parcel is zoned Limited Business. Compare the uses allowed in Limited Business to those allowed in TFOD. You’ll see that TFOD kept things like flower shops, grocery stores, and sit-down restaurants. It decidedly does not keep takeout restaurants.
A rational interpretation would say that it’s cut and dry. No, you can’t build one of the most traffic-drawing fast food drive-throughs known to mankind in a district devised to cool down development intensity at a rough intersection. That was the crux of what our attorney wrote back in December.
However, the TFOD law also contains a provision that “In the case of conflict between regulations contained in the underlying zoning district and the regulations contained in this overlay district, the provisions of the district that provides the greater safety protection for pedestrian or vehicular traffic shall govern.” In layman’s terms, if any portion of the two laws is incompatible, the Town is empowered to choose whatever interpretation makes things safest for pedestrians or drivers.
In their letter to the town, Chick-fil-A’s lawyers argue that the different use list — the only substance of the law that explicitly takes precedence — constitutes a “conflict”, and that building a world-class traffic magnet is the safest option. Citing a traffic study by Passero and Associates, the lawyers argue that because their proposal includes a new traffic light at the Parkside Commons driveway, safety in the area will be improved overall.
Careful review of the Passero study demonstrates a few things. First, the main focus of this study is “Level of Service”, meaning the length of wait at nearby intersections. This is useful, but not overly relevant to safety, per se. Next, where safety is analyzed, the nearby and notably dangerous intersection of routes 441 and 250 are left out. Finally, when the “benefit” of the new traffic light is analyzed, impact to any nearby intersection is omitted.
Make no mistake, bringing traffic to a stop at that location will wreak havoc on traffic outflow from both the 441/250 intersection and the 250/Penbrooke intersection.
They requested a formal ruling on this interpretation from the town.
The town didn’t buy any of that, right?
Wrong.
The town’s Director of Developmental Services issued a letter accepting Chick-fil-A’s interpretation of Town Code. By way of explanation, the Director’s letter offers a paraphrasing of the developer’s own letter, along with a letter from the firm of Barton & Loguidice endorsing (with little explanation) the Passero letter.
Wait, when did that happen?
The timing of all this, and of its disclosure to the public, should concern anyone who thinks that the government should serve the people. Here is a recounting of the timeline:
March 5: Lawyers for Chick-fil-A issue letter requesting zoning determination
March 14: Zoning determination letter by Director of Developmental Services is filed in public record
March 19:
The above two documents are posted publicly on the Town website
The Zoning Board of Appeals meeting agenda for March 20 is posted publicly, including Chick-fil-A as a “Tabled Application”
March 20: During a regular meeting, Zoning Board of Appeals chairman Daniel Delaus announces the determination and the ZBA’s intent to take the issue back up at a future meeting
Now what?
It is time to make noise.
One of the best ways to show your support for stopping this development is to show up to Town meetings. The next ZBA meeting will be on Thursday, April 17, 2025 at 6pm. Even if Chick-fil-A is not subject to a public hearing where residents can voice objections, showing up helps show the board that people care, and that has real impact.
Public comments are always accepted during the Public Participation section of Town Board Legislative meetings, the next of which will be on Wednesday, April 2, 2025 at 6:30 pm. Remember that each resident may be limited to 5 minutes of speaking time, so it may be useful to prepare remarks in advance. Also, submitting a written copy of your remarks to the Town Clerk following your speech will add them to the town record, giving your feedback permanent legal weight.
Of course, it is always an option to write to one or more of the town’s legal boards. Preserve Penfield has already done so, and will make our comments available in a future news post. Do you have input on this situation that you’d like our audience to see? Send your thoughts to info@preservepenfield.org and we may feature them here.
Remember: Your voice can be heard, and it can make a difference for the better.
