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Gorgone v. District of Columbia Board of Zoning Adjustment

June 11, 2009


Petition for Review of a Decision Of The District of Columbia Board of Zoning Adjustment (BZA - 17589).

The opinion of the court was delivered by: Oberly, Associate Judge

Argued May 12, 2009

Before WASHINGTON, Chief Judge, OBERLY, Associate Judge, and KING, Senior Judge.

Salvatore Gorgone's tenant, Paul Luna, applied for a certificate of occupancy ("CO") to operate a "gourmet shop" out of the basement of a rowhouse owned by Gorgone. The rowhouse is located at 1417 17th St., N.W. in a residential zone where a "gourmet shop" is not permitted as a matter of right. The Zoning Administrator ("ZA") of the Department of Consumer and Regulatory Affairs ("DCRA") denied Luna's application, finding that any grandfathered right to make a nonconforming use of the basement had been abandoned. Gorgone appealed the denial to the Board of Zoning Adjustment ("BZA"), which affirmed. Finding no error in the BZA's decision, we affirm.

I. Statutory Framework

Prior to discussing the facts of this case, it is helpful to review briefly the applicable statutory framework. We begin with 12A DCMR § 110.1, which provides, with exceptions not applicable here, that "no person shall use any structure, land, or part thereof for any purpose other than a one-family dwelling until a Certificate of Occupancy has been issued to that person stating that the use complies with the Zoning Regulations and related building, electrical, plumbing, mechanical and fire prevention requirements."*fn1 A certificate of occupancy is an "enforcement tool" that is used by administrative officers "to check proposed uses, as well as proposed structures, against the [applicable] ordinances." PATRICIA E. SALKIN, AMERICAN LAW OF ZONING § 1.03[4][d], 1-54 (5th ed. 2008). A CO cannot authorize a use that does not comply with the requirements set forth in § 110.1. See Kuri Bros. v. District of Columbia Bd. of Zoning Adjustment, 891 A.2d 241, 247-48 n.6 (D.C. 2006) (a CO "construed to authorize . . . a use" that is not permitted by the zoning laws is "invalid and subject to revocation as having been issued in error"); see also, e.g., 12A DCMR § 110.5.1 (stating that DCRA "shall . . . revoke[]" CO where "actual occupancy does not conform with that permitted"); 12A DCMR § 110.1 (2009) ("Issuance of a certificate of occupancy shall not be construed as an approval of a violation of the provisions of the applicable Construction Codes, Zoning Regulations or other laws or regulations of the District.").

As a general matter, the District's zoning regulations forbid property that is located in a residential district (such as Gorgone's) to be used (as Luna proposed) commercially. See 11 DCMR § 350.4. Notwithstanding this general rule, uses that were valid at the time the zoning regulations were adopted were allowed to continue even if those uses no longer conformed to the regulations. D.C. Code § 6-641.06 (a) (2001); 11 DCMR § 2000.4. "The government recognizes nonconforming uses in derogation of the general zoning scheme in order to protect the interests of property owners." George Washington Univ. v. District of Columbia Bd. of Zoning Adjustment, 429 A.2d 1342, 1345 (D.C. 1981).

Like many other rights, however, the right to a nonconforming use may be abandoned. "To establish abandonment, one must demonstrate (1) the intent to abandon and (2) some overt act or failure to act which carries the implication of abandonment." Id.

We construe the "[d]iscontinuance for any reason of a nonconforming use . . . for a period of more than three (3) years . . . as prima facie evidence of no intention to resume active operation as a nonconforming use." 11 DCMR § 2005.1.

II. Facts

With the statutory framework in mind, we turn to the largely undisputed facts of this case. The property that is the subject of Gorgone's petition is located in a residential district, where, since the enactment of the zoning regulations in 1958, no type of food sales are or ever have been permitted as a matter of right. As the BZA found, at "some point before" the zoning regulations came into effect, "a retail food establishment selling uncooked, prepared food was lawfully established in the basement" of what is now Gorgone's property. For the next forty years, the basement continued to be used by various owners as a "delicatessen" in the traditional sense of the word; "[s]pecifically, at no time during" the period from 1958-1998 "was there any large-scale cooking of food done on the premise[s]." When Gorgone "purchased the property in 1994 . . . the basement was occupied by a retail food business operating as a 'delicatessen with no seating,' as per its" CO.

In 1998, Ming Zin Zhang took over the lease to the basement. Operating as Chef's Express, Zhang obtained a CO that authorized Zhang to use the basement as a "Delicatessen (No Seats)." The BZA found that Zhang then "renovate[d] the basement[,] introducing a commercial-style kitchen with cooking equipment, exhaust fans, and vents." After "the renovation was complete, Chef's Express expanded its menu to include cooked items and started to receive large bulk food deliveries of raw foods. . . . The raw food was prepared-chopped, diced, etc.-and cooked on the premise[s]."

Zhang operated Chef's Express from 1998-2005. The BZA found that at all times during this seven-year period, Chef's Express "prepared and cooked . . . food on the premise[s]," operating what Gorgone, Zhang, and the BZA term a "Chinese carry-out." In 1999, approximately one year after Chef's Express opened, and twice again in 2003, the DCRA and the D.C. Department of Health issued Notices of Infraction stating that "the food preparation activities being carried out on the premises were not within the scope of the delicatessen use authorized by the [CO] and that the operation was actually a carry-out." In July 2003, the DCRA rejected Zhang's application for a CO to use the basement as "a Chinese Food Carry-Out." Ultimately, in November 2005, Zoning Administrator Bill Crews revoked Chef's Express's CO, explaining that Chef's Express was engaging "in activities that do not conform to the location and use permitted in the existing" CO.

Unable to operate Chef's Express because the CO had been revoked, Zhang left, and Gorgone leased the basement to a new tenant, Paul Luna. Luna applied to the DCRA for a CO to operate a "gourmet shop" out of the basement. The record does not tell us what precisely a "gourmet shop" is, so we assume, as do the parties, that a gourmet shop is a commercial food establishment that sells prepared foods. In the end, that silence is ...

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