Argued January 29, 2014
On Petition for Review of an Order of the District of Columbia Board of Zoning Adjustment. (BZA-18114).
Don Padou for petitioner.
Richard S. Love, Senior Assistant Attorney General for the District of Columbia, with whom Irvin B. Nathan, Attorney General, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for respondent.
Before BECKWITH and MCLEESE, Associate Judges, and FERREN, Senior Judge.
Beckwith, Associate Judge
Beginning in April 2010, the Zoning Administrator (ZA), whose office is part of the District of Columbia Department of Consumer and Regulatory Affairs (DCRA), granted a series of certificates of occupancy to Stadium Group LLC to operate " Stadium Club" as a " Nightclub and Restaurant with accessory parking (Not a Sexually Oriented Business Establishment)" at 2127 Queens Chapel Road N.E., a property zoned C-M-2. Petitioner Ward 5 Improvement Association (Ward 5) appealed the issuance of those certificates to the District of Columbia Board of Zoning Adjustment (BZA). Ward 5 argued that Stadium Club was a " sexually-oriented business enterprise" (SOBE), and therefore under 11 DCMR § 801.2 (2008) could not operate as a matter of right in a C-M-zoned area. DCRA responded that " a nightclub that offers nude dancing entertainment is not a sexually-oriented business establishment" per se and claimed that the ZA did not err in issuing the certificates of occupancy. Stadium Club intervened to defend the ZA's decision. In an August 24, 2012, order, the BZA, by a 4-1 vote, upheld the ZA's decision to designate Stadium Club as a non-SOBE--an order that Ward 5 now challenges.
Ward 5 contends, as it did before the BZA, that the ZA erred in issuing the certificates of occupancy because Stadium Club is a " sexually-oriented business establishment" --that is, by regulation, " an establishment that presents as a substantial or significant portion of its activity, live performances, films, or other materials, that are distinguished or characterized by their emphasis on matters depicting, describing, or related to specified sexual activities
and specified anatomical areas." 11 DCMR § 199.1 (2010). The BZA, as respondent in this case, acknowledges that the dancers at Stadium Club are " sometimes nude" and display the " anatomical areas" specified in the regulations. The BZA contends, however, that Stadium Club is not a SOBE because the dancers, according to the planned use of the establishment, do not engage in the " [s]pecified sexual activities." These activities include any of the following: " (a) Acts of human masturbation, sexual intercourse, sexual stimulation or arousal, sodomy, or bestiality; and (b) Fondling or other erotic touching of human genitals, pubic region, buttock, or breast." 11 DCMR § 199.1.
We conclude that the BZA, in assessing whether the ZA properly granted the certificates of occupancy, erred in relying almost exclusively on information available to the ZA at the time he granted the first permanent certificate of occupancy on June 22, 2010. The BZA should have fully considered, as well, information available to the ZA at the time he granted the second permanent certificate of occupancy on June 24, 2011--including, in particular, information about how Stadium Club had been operating since it opened a year earlier. The BZA also erred in failing to make certain essential findings of fact and conclusions of law regarding whether Stadium Club featured the " sexual activities" specified in 11 DCMR § 199.1. We therefore vacate the BZA's August 24, 2012, order and remand the case to the BZA for additional findings of fact, conclusions of law, and further proceedings consistent with this opinion.
I. Factual Background
Zoning Administrator Matthew LeGrant issued temporary certificates of occupancy to Stadium Club on April 2 and April 21, 2010, both times approving use as a " Nightclub and Restaurant with accessory parking (Not a Sexually Oriented Business Establishment)." Stadium Club opened on April 22. Stadium Club featured three stages for dancing and twelve eight-by-eight-foot " lounges" used for private dances " where entertainers would perform in the nude," according to the factual findings in the BZA's August 24, 2012, order. Stadium Club's " Rules and Regulations for Dancers" state that dancers may not " fondle or touch their genitals, pubic region, buttocks or breasts in a suggestive or erotic manner" and may not " simulate (or perform) any acts of intercourse, masturbation, sodomy, bestiality or other acts intended to stimulate or arouse." In addition, according to these ...