Gorgone owns a row house on 17th Street N.W., in a residential district where no type of food sales is permitted as a matter of right. When he bought the property in 1994, there was a delicatessen legally operating under a certificate of occupancy (CO) in the basement. The deli apparently preceded the enactment of zoning regulations in 1958. In 1998, Ming Zin Zhang took over the lease of the basement. He installed a commercial kitchen and proceeded to offer items cooked on the premises, even though the CO authorized only the operation of a delicatessen.
The city issued violation notices against Zhang in 1999 and 2003. In 2005, the zoning administrator revoked his CO. Paul Luna took over the lease, and applied for a CO to operate a gourmet shop on the premises. Although the record is not clear, apparently a gourmet shop is a commercial food establishment that sells prepared food. The zoning administrator refused to issue a new CO, concluding that the use of the basement as a carry-out for more than three years constituted an abandonment of the nonconforming use under city regulations, because the carry-out was not a delicatessen. The board of zoning appeals upheld his determination.
The appeals court noted the zoning administrator relied on the definition of a delicatessen in Webster’s New International Dictionary to conclude that the Chinese carry-out was not a delicatessen (a store where food items prepared or processed elsewhere are sold). Gorgone complained the city had not previously consulted the dictionary to determine whether a business was operating outside of its CO. Even if that were true, the city’s code of regulations expressly provides that words not defined in the zoning regulations shall have the meanings given in Webster’s, the court said. Any failures of prior zoning administrators to apply that rule do not bind the hands of zoning administrators who wish to give the law its full effect.
In any event, the court continued, while there may be closer cases, Zhang’s carry-out clearly was not a deli. In fact, Gorgone never claimed it was a deli within any commonly accepted meaning of the word. The zoning administrator may or may not have been the first one to rely on a dictionary definition of a deli to revoke a CO. The record is unclear on that point. But the record does show that he was not the first to identify a problem with the carry-out. The District’s concern that the carry-out was operating outside of its authorization did not originate with the present zoning administrator.
To be sure, the court acknowledged, the District’s regulation of food establishments has not been a model of clarity. The zoning administrator testified that while a deli is not a fast-food restaurant, many entities operated as delis really are carry-outs, and by his definition, a carry-out is a fast-food restaurant. “It is difficult to deny that these distinctions have somewhat of an ‘I-know-it-when-I see-it’ quality,” the court said. Nonetheless, there was no question that the Chinese carry-out was not a deli, and Gorgone does not claim he lacked notice that the city believed it was operating beyond the authority of its CO.
As to those businesses that might be closer to the line than Gorgone, the court offered the hope that the city’s Streamlining Regulation Act of 2003 will reduce the potential for inconsistent treatment. It seemed to provide better guidelines for owners of food establishments by eliminating special license categories for delicatessens, for example. Those provisions promised to bring greater clarity to an important area of zoning regulation, the court said.
Gorgone v. District of Columbia Board of Zoning Adjustment, 973 A.2d 692 (D.C. Ct. App. 6/11/2009).
The opinion can be accessed at: http://www.dcappeals.gov/dccourts/appeals/pdf/08-AA-231.PDF
Special thanks to James Lawlor, Esq. of the Land Use Legal Report for this abstract. For subscription information to the LULR contact Jim at landlaw@verizon.net
