May 16, 2019

In Bedford Village Service Station of Westchester Inc., et al v. Town of Bedford, Westchester Co. Index No. 70064/18, decided May 1, 2019, the Westchester County Supreme Court granted a preliminary injunction with respect to the Town of Bedford’s ordinance (“Ordinance”) restricting the location of businesses selling electronic nicotine delivery systems (”E-Cigarettes”), holding that the Town exceeded its authority to regulate land use.

The Town of Bedford passed the Ordinance in 2018 with the goal of limiting access to E-Cigarettes in order to protect the health and safety of the Town’s children and young adults.  The Town sought to achieve that goal by prohibiting the sale of E-Cigarettes outside the Retail Business zoning district.  The Town argued that the Ordinance did not regulate a specific person or business but rather restricted the location of “vape shops” selling E-Cigarettes.

The Plaintiffs, local retail businesses selling E-Cigarettes, argued that the purpose of the Ordinance was illegal because it sought to address youth vaping rather than the use of land.  Plaintiffs argued that the Town failed to demonstrate how the sale of E-Cigarettes would adversely impact the surrounding neighborhood.  Plaintiffs argued that the Ordinance lacked any rational basis because it was unsupported by any empirical data.  Moreover, Plaintiffs pointed out that the Westchester County Code limits the sale of E-Cigarettes to individuals over the age of 21.

The Court recited the general legal principle that a town’s zoning power “is not a general police power but a power to regulate land use.”  “A town board’s zoning power must operation in relation to the use of land and not for the accomplishment of purposes extraneous to that relation.  If…health measures require zoning controls, they must involve…health characteristics which relate to the land under regulation.”

In this case, the Court held that the Ordinance was enacted to address the general health issue of youth vaping rather than the use of land.  For that reason, the Court found that the Plaintiff established a likelihood of success on the merits.  The Court similarly held that the Plaintiff met its burden of proof on the other required elements for a preliminary injunction.

The Court ultimately held in relevant part that “the record is devoid of evidence demonstrating that the rise in youth vaping is caused by, or is correlated with, the nature of Plaintiff’s land such that it would be relevant to zoning.”

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The Law Offices of Keith R. Betensky, Esq.
The Empire Building
26 Village Green, Suite 4
P.O. Box 22
Bedford, New York 10506-0022
(914) 338-8050
keith@betenskylaw.com
www.betenskylaw.com