Former Councilwoman Bea Sena reads minutes from a 2002 council meeting at which she voiced concern that parts of the borough code had gone missing. (Photo by John T. Ward. Click to enlarge.)

By JOHN T. WARD

Fast food joints in Fair Haven? Why, there oughta be a law, say some residents, angered by a pending proposal for a Dunkin’ coffee shop.

Well, it turns out there is — or was — a borough ordinance explicitly prohibiting fast food restaurants. But it seems to have vanished from the town’s official code book, a resident told the borough council Monday night.

What that means to the most controversial planning board application in recent history, as well as others expected to soon follow, immediately became a lightning rod issue.

Tracy Cole said she had “scoured” records before concluding the fast-food ban had vanished from the code book. (Photo by John T. Ward. Click to enlarge.)

If the law was dropped from the code book, that means it’s no longer in effect, borough attorney Sal Alfieri said at the council’s latest session, where Grange Avenue resident Tracy Cole brought its absence to light.

But Cole disputed Alfieri’s interpretation. The action adopting the apparently misbegotten “re-codification” in 2002 — when accumulated ordinances and amendments were consolidated by a vendor into an updated code book — itself says that anything unintentionally left out remains in effect, she said.

Alfieri said he would research the case law, “and if I’m wrong, I’ll admit it,” he said.

The ban, which had survived a 1972 legal challenge, was adopted in early 1973, Cole said. It prohibited diners, lunch wagons, roadside stands and “fast-food establishments designed for over-the-counter service of prepared or pre-prepared foods” whether or not interior seating is provided, Cole said reading from the text.

“This explains why Fair Haven doesn’t have any fast-food restaurants,” Cole told the council. “Because of this law, Fair Haven has been protected.”

The law was in the code book up until 1996, “and that’s the last time you see it in any code book,” she said. There’s no evidence of the council having voted to repeal it, she said. During the 2002 codification, the ordinance “simply vanished,” Cole said.

She cautioned that she was not alleging any intentional wrongdoing.

That the ordinance disappeared was no surprise to Bea Sena, who served on the council from 2001 to 2003. She had dug out from her files copies of minutes from 2002 council meetings at which she repeatedly asked about missing sections of the book, which was then up for adoption by the governing body.

She and other council members were  repeatedly told by then-attorney Bernard Reilly that the missing sections “were coming,” she said. Even so, she said she was so disturbed by the situation that she abstained from voting on the adoption, she told the council.

Sena kept the minutes, she said, “because it was so troubling to me.”

The emergence of the issue raised a host of questions, some of which audience members found in urgent need of answering.

Among them: how, if at all, does this impact the Dunkin’ application for the River Road Acme shopping center? And what if anything can be done to bar fast-food restaurants from taking advantage of the opening?

Like Cole, Sena argued that the law is still in effect. “There is a standing law here, and until I see it has been repealed, it is the law,” Sena told redbankgreen.

The zoning board is scheduled to meet Thursday night to decide two jurisdictional appeals, including one filed by an attorney for Cole, who contend that the Dunkin’ application filed by Fair Haven Retail LLC, owner of the shopping center, should be heard by the zoning board, rather than the planning board, which has lower legal hurdles to approval.

Neither of those appeals contend that local law bars fast-food.

Cole told the council that it’s widely believed in town that other fast-food applications could be filed as early as Friday if the zoning board decides in favor of the shopping center, which is seeking the planning board hearing that zoning officer Nick Poruchynsky determined it should get.

Residents called for immediate action, in the form of either a new ordinance or a statement of intent.

Tracy Cole’s husband, Chris Cole, a principal in Metrovation, owner of the Grove shopping center in Shrewsbury, urged the council to adopt an ordinance similar to one used in that town. It considers all restaurants as a conditional use, which requires zoning board approval.

“We’re happy to go through the process, because it’s vetting everything with the residents,” he said. “It’s part of being a good neighbor.”

Gail O’Reilly, of Hance Avenue, pressed the council to take action that would immediately signal the borough’s “intent” to correct the situation of the missing ordinance, either by re-introducing the 1973 law for adoption or putting a statement of intent on the record.

Mayor Ben Lucarelli, though, said the council would first have to consult with its planning consultant, Heyer Gruel & Associates, and Todd Lehder, who chairs both the planning and zoning boards, as well as members of the business community, before taking any action.

“I understand the need, the urgency, the passion” behind the requests, he said. “But we need to be careful.”

Additionally, Alfieri said he would research the legal issues. Meantime, he said he would ask Poruchynsky not to proceed on any new restaurant applications without first checking with him.

But “there’s nothing the governing body can do to affect a pending application,” he said.

The zoning board is scheduled to meet at the Sickels School at 7:15 p.m. Thursday to continue the hearing on appeals by Cole and Battin Road resident Andrew Reger, who have filed separate appeals regarding jurisdiction for the Dunkin’ application. Here’s the agenda.