The Coronavirus Lesson: Drive-Thrus are an “Essential Service” of Fast-Food Restaurants

Farrell Fritz, P.C.
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In an effort to enforce social distancing and slow the spread of the coronavirus, many cities and states across the nation have adopted emergency orders mandating that restaurants, including fast-food chains, shut down their dine-in facilities.  Not surprisingly, these new mandates resulted in a precipitous loss of business and have caused many restaurants to adjust their operations to provide take-out and delivery service.  However, fast-food restaurants with drive-thru windows are not experiencing the same loss of business, and many are actually thriving.  Since having a drive-thru window may be a fast-food restaurant’s best chance at survival in the world of social distancing, it may be good time for local governments to ease the restrictions on drive-thrus.

The origin of the drive-thru restaurant has long been disputed, but most people recognize California’s Pig Stand No. 21 as having the nation’s first drive-thru window in 1931.  However, the success of the drive-thru can be attributed to In-N-Out Burger, which opened its first restaurant in Baldwin Park, California in 1948.  In-N-Out’s novel design involved a 100 square foot building with no inside seating or parking.  Customers would drive up to a window and place their orders using a two-way intercom.  Despite In-N-Out’s success as a drive-thru, other fast-food restaurants were slow to follow suit.  In 1951, Jack in the Box opened its own drive-thru-only restaurant in San Diego.  McDonald’s first restaurant opened in 1948, but it did not incorporate a drive-thru window into its operations until 1975.

What began nearly 90 years ago as a convenience that capitalized on the growing popularity of the automobile, and was slow to catch on, is now proving to be an economic lifeline for fast-food restaurants in the age of the coronavirus.  The drive-thru option is viewed by many as a safe way of purchasing a meal, especially for the elderly and other high-risk groups, because it ensures social distancing and reduces the number of touchpoints.  In fact, many people have started treating drive-thru restaurants like food markets, making fewer trips but placing larger orders.  Wendy’s recently reported that approximately 90% of all sales are now made at the drive-thru window, compared with about two-thirds before the pandemic erupted.  Unfortunately, many restaurants without drive-thrus have been forced to close during the lock-down, and some will likely not reopen.

Despite the importance of drive-thru windows to a fast-food restaurant, and their wide-spread popularity with customers, drive-thrus have never been fully accepted as an accessory use in many communities on Long Island and elsewhere.  In fact, many Long Island communities loathe drive-thrus and either prohibit them or subject them to greater scrutiny than other components of a restaurant use.  For instance, in the Town of Southold’s Hamlet Business (HB) District, fast-food restaurants are permitted by special exception from the Board of Appeals, but “[t]here shall be no counter serving outdoor traffic via a drive-in, drive-through, drive-up, drive-by or walk-up window or door.”  In the Town of Islip, fast-food restaurants with drive-thru windows are prohibited in business districts where fast-food restaurants without drive-thru windows are permitted with a special permit from the Planning Board.  In other parts of the country, there is a movement to ban the construction of drive-thru windows in an attempt to curb vehicle emissions, reduce litter, improve pedestrian safety and walkability, and even as a way to help fight obesity.

From the lessons learned in the wake of the coronavirus, perhaps now is the time for municipalities to become less critical and more accepting of drive-thru windows.  The prevalence of fast-food restaurants with drive-thru windows strongly suggests that this amenity should be treated as a permitted customary and incidental accessory use to a fast-food restaurant.  Of course, drive-thrus need queuing lanes which require more land area and can present potential internal traffic circulation conflicts.  Therefore, it is reasonable for a municipality to require a greater minimum lot area for a fast-food restaurant with a drive-thru, and to subject a restaurant proposal to site plan review.  However, prohibiting or restricting drive-thrus because the added convenience may attract more customers and create additional traffic on the surrounding roads is tantamount to penalizing a business for its success.

As local operators of fast-food restaurants struggle to stay in business during the pandemic, and restaurant employees worry about losing their jobs, hopefully local governments will recognize that drive-thru windows are essential to the success of a fast-food restaurant.  They should then amend their zoning regulations to be more accepting of drive-thru windows, which are an amenity that the public wants and restaurants need . . . now more than ever.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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