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The long, bitter fight over a Burger King drive-thru

After years of litigation, the chain has finally given up hope of reopening a drive-thru on Nicollet Avenue, but, on the whole of it, the drive-thru era is far from over in Minneapolis.
CBRE began marketing the former Burger King at 3342 Nicollet Ave. on Monday, July 17.
CBRE began marketing the former Burger King at 3342 Nicollet Ave. on Monday, July 17.
Courtesy of Adam Wysopal

Minneapolis resident Adam Wysopal was pleased to find a sign advertising available space in the lot of a derelict Burger King near his home on Nicollet Avenue.

Not because he was interested in buying the lot, but because he simply wanted the restaurant’s unused drive-thru gone. The sign, placed by Texas-based commercial real estate giant CBRE on Monday, marks the end of a years-long legal battle over the property.

“I’d love to see that property developed,” says Wysopal, who’s filed two lawsuits against the city to get the drive-thru closed for good.

It’s been nearly four years since the city of Minneapolis formally banned construction of new drive-thrus, but the legal and philosophical battles over them remain. And though the fate of this particular drive-thru is sealed for reasons beyond the city’s most recent regulations, there are still plenty of other highly trafficked drive-thrus scattered across the city – a sign that, for better or worse, the drive-thru era is far from over in Minneapolis.

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Appeals, appeals, appeals

Built in 1964, the Burger King at 3342 Nicollet Avenue has sat vacant for years. Today, the store is behind a fence and covered with graffiti. P3 Foods – the franchisee that used to run the location – filed for Chapter 11 bankruptcy back in 2016. Two years later, in April 2018, the franchisee closed nine Burger King locations in Minnesota, including the Nicollet Avenue store and another on West Broadway.

Another franchisee – Chicago-based Cave Enterprises Operations LLC – stepped in and submitted a formal franchise application to Burger King Corp. in December 2018 to take over the store.

Yet another year went by, and the Nicollet store still hadn’t reopened.

In the interim, in August 2019, the city enacted its drive-thru ban, which prohibited the construction of new drive-thrus anywhere in the city. That ordinance garnered lots of national press and attention, but its effects were wildly overstated since the city had already been slowly banning drive-thrus in various parts of the city for decades. In fact, a zoning change going back as far as 1999 had prohibited drive-thrus where the Nicollet Avenue Burger King sits. After that, the location was actually operating under a “nonconforming use” exemption.

So, in December 2019, Burger King corporate asked the city to reinstate permission to reopen the drive-thru. The only problem? The store had been closed for over a year, and Minnesota law says that a property is considered “abandoned” if it’s not used for more than a year. An entity could still argue that it was unable to re-open a drive-thru in a timely fashion for reasons beyond its control, but, in this case, the city didn’t buy it. The Zoning Board of Adjustment denied Burger King’s application.

In February 2020, Burger King appealed the decision to a different Minneapolis entity: The Zoning and Planning Commission, which gave its blessing and overruled the Zoning Board of Adjustment’s earlier decision. To bolster its case to the commission, Burger King had even hired former Minneapolis city councilmember Jackie Cherryhomes to lobby the city on its behalf.

“I guess she was quite successful in her lobbying efforts, and I think that’s why the Zoning and Planning Committee granted the appeal,” says Wysopal.

Still, Wysopal, a lawyer himself, was undeterred. Within days of the planning commission’s decision, Wysopal filed a complaint in Hennepin County District Court in an attempt to prevent the drive-thru from reopening. He argued that the committee “acted arbitrarily and capriciously” in granting Burger King’s appeal.

Wysopal’s first suit was unsuccessful. Hennepin County judge Jamie Anderson agreed with Burger King and said the company had demonstrated “clear and convincing evidence” that it was unable to reopen due to circumstances beyond its control.

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For a time, Wysopal had resigned himself to a drive-thru across the street. “I assumed I would see construction permits getting pulled within weeks after my lawsuit ended,” he says. Still, nothing. The Burger King at Nicollet still sat empty.

In the summer of 2021, Wysopal believed he had another shot. He sent letters to the city attorney’s office noting that the store had remained utterly closed for essentially three years. He says the city “blew me off,” so he filed yet another lawsuit in November of 2021. This one was slightly different: A petition for a writ of mandamus – essentially asking the court to compel the city to enforce its own laws.

With the threat of a second lawsuit, the city changed its mind and agreed that Burger King had lost its rights to a drive-thru. Wysopal then withdrew his suit without prejudice.

Burger King had started the process to appeal once more but apparently gave up. In December 2021, the city sent a letter to Cave Enterprises LLC noting that building permits for reestablishing a drive-thru at the Nicollet location had been canceled. Whoever buys the property at 3342 Nicollet won’t be able to reopen the drive-thru, either.

Burger King corporate and Cave Enterprises didn’t immediately respond to requests for comment this week.

David Daly, a senior VP with CBRE who’s marketing the former Burger King space, says he’s already heard from several interested parties. There’s even been an offer on the space, though it hasn’t been formally accepted yet. The lot is owned by an entity known as Arjun Investments LLC. Hennepin County property records show that the property last sold in 2000 for $395,000. Its estimated market value today, according to the county, is $854,200.

The likeliest option for the lot is a multi-family residential development, though that would require a zoning change.

The American way?

In the broader picture, in a city where construction of new drive-thrus is banned, it’s a bit surprising to see one close. Love them or hate them, drive-thrus generate a lot of money for fast-food chains, which is why many companies are willing to go through lengthy legal battles to save them.

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“In the United States, drive-thrus are the single most valuable piece of restaurant space there is right now,” says Jonathan Maze, editor-in-chief of Restaurant Business magazine.

Based on his observations of the industry, drive-thrus can generate anywhere from 70% to 80% of a chain restaurant’s revenue. “To understand how important they’ve become,” Maze says, “just go to Brooklyn Park and look at that Taco Bell” – a behemoth two-story structure with four lanes.

It’s easy to joke about drive-thrus or dismiss them as irrelevant, but it’s hard to deny that they’re still deeply embedded in American life, for better or worse. Even in more progressive-oriented cities like Minneapolis. The McDonald’s drive-thru at 24th Street and Nicollet Avenue, for instance, is still heavily trafficked, with cars often spilling out into the street during the breakfast rush. There are plenty of busy drive-thrus along Lake Street and in North Minneapolis, too. The suburbs, of course, are chock full of them.

By some estimates, there are as many as 200,000 drive-thrus across the United States. And drive-thrus are, more or less, a distinctly American phenomenon. Maze says they’re still being built in other parts of the world, but nowhere near as extensively as they are in the U.S.

“Drive-thrus are very popular, and they’ll remain very popular until people stop using cars,” Maze says. “Regulators might say something different, but the fact of the matter is people really like using them.”

Maze maintains that, if the Burger King location were another fast-food chain, it probably wouldn’t have closed, especially given the high value of drive-thrus these days. But on a revenue basis, Burger King is behind its competitors. A typical Burger King location generates about $1.5 million in revenue a year, while a McDonald’s can easily surpass $3.6 million for a single location, Maze says.

Meanwhile, drive-thru regulation certainly isn’t unique to Minneapolis. After the city’s total ban was enacted in 2019, other cities in New York, New Jersey, and Missouri followed suit with bans of their own. Several Canadian cities have banned them, too. In perhaps one of the most aggressive actions, the city of Santa Barbara, California, declared a local Chick-fil-A a public nuisance due to the “major traffic back-ups that result from the restaurant’s drive-thru lanes,” a local TV station reported.

Exactly how many drive-thrus remain in the city of Minneapolis isn’t totally clear, and the city apparently doesn’t keep tabs on it. “Drive-thrus are not licensed or otherwise tracked in any way,” said city spokeswoman Sarah McKenzie in an email. “The City has no way of knowing how many are currently operating. From an enforcement or regulatory perspective, there is no reason for the City to need this data.”

For his part, Wysopal still counts the closure of the Nicollet Avenue Burger King as a success. For him, it’s part of the slow march toward a future without drive-thrus.

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“I personally would love to see more phased out,” he says, “but it’s probably going to be a long time for the ones that are still up and running.”