Borough attorney Sal Alfieri and planning consultant Fred Heyer at Monday’s council meeting. (Photo by John T. Ward. Click to enlarge.)

By JOHN T. WARD

A missing-in-action law that banned fast food restaurants in Fair Haven is effectively revoked and will have to be rewritten, the borough’s attorney said Monday night.

In that case, the next one needs to address “ambiguities” that enabled a proposed — and controversial — Dunkin’ coffee shop to clear the first hurdle to possible approval, officials and residents said.

Dunkin’ is seeking to open alongside the new breezeway at the Fair Haven Shopping Center. (Photo by John T. Ward. Click to enlarge.)

In the meantime, there’s no chance of a moratorium to prevent other fast food operations from seeking a toehold in the borough, attorney Sal Alfieri told the audience at the council’s regular semimonthly meeting.

New Jersey’s Municipal Land Use Law “is clear that a moratorium cannot be imposed unless the health official certifies that there’s a health issue,” he said.

Alfieri presented the conclusions of legal research he’d done in the two weeks since Grange Avenue resident Tracy Cole alerted the council to a gaping hole in the borough’s ordinances.

Seeking the text of the 1973 law that banned fast-food restaurants, Cole, who opposes the Dunkin’ plan, said she found that it had vanished from the official code book during a periodic “recodification” in 2002, when new laws and amendments to existing ones were consolidated and reorganized by an outside vendor.

Other parts of the code had also disappeared, said Bea Sena, who served on the council in 2002 and opposed adoption of the consolidated document precisely because of pieces were missing, even though officials were promised the missing sections would be restored, she said last month.

While Cole contended that those assurances, and the text of the recodification itself, suggested the law should still be in effect, Alfieri said that the 2002 recodification, and another in 2009 that failed to restore the fast-food ban, repealed all prior ordinances.

“Two codifications later, there’s no way we can say that law is still in place,” he said.

The 1973 prohibition, which had survived a legal challenge by the McDonald’s hamburger chain, barred diners, lunch wagons, roadside stands and “fast-food establishments designed for over-the-counter service of prepared or pre-prepared foods.”

On the advice of the council, planning consultant Fred Heyer of Heyer Gruel & Associates said he would review the last known version of the ordinance for ambiguities and return within two weeks to discuss his recommendations.

But he and Mayor Ben Lucarelli stressed that the end result shouldn’t create any new adverse conditions for existing restaurants and food purveyors in town.

“It’s the art of making it all work without damaging or hurting or having unintended consequences,” Heyer said.

Separately, the Dunkin’ application for a store in the Fair Haven Shopping Center of River Road is slated to be heard by the planning board, following a May 2 by the zoning board on jurisdictional appeals filed by Cole and another homeowner. No hearing date has yet been scheduled.