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West End Citizens Ass'n v. District of Columbia Bd. of Zoning Adjustment

Court of Appeals of Columbia District

April 2, 2015

WEST END CITIZENS ASSOCIATION, PETITIONER,
v.
DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, RESPONDENT; FOGGY BOTTOM GROCERY, LLC, INTERVENOR

Argued November 29, 2011.[*]

On Petition for Review of a Decision of the District of Columbia Board of Zoning Adjustment. (BZA-18031-A).

Martin P. Sullivan for petitioner.

Constance J. Miller for intervenor.

Irvin B. Nathan, Attorney General for the District of Columbia at the time, Todd S. Kim, Solicitor General, Donna M. Murasky, Deputy Solicitor General, and Andrew Van Brisker, Assistant Attorney General, filed a Statement in Lieu of Brief in support of intervenor.

Before GLICKMAN and MCLEESE, Associate Judges, and FARRELL, Senior Judge.

OPINION

Page 901

Glickman, Associate Judge:

This is round two in an appeal by the West End Citizens Association (" WECA" ) of a Certificate of Occupancy (" C of O" ) granted to intervenor, Foggy Bottom Grocery, LLC. Intervenor does business under the name FoBoGro. The C of O allowed FoBoGro to operate a grocery in a residentially zoned neighborhood of the District of Columbia known as Foggy Bottom. In round one, the Board of Zoning Adjustment (" BZA" ) concluded that the proposed grocery business would not constitute an improper expansion of a nonconforming use and therefore upheld the C of O. This court reversed that decision. On remand, the BZA again rejected WECA's appeal of the C of O, this time on equitable estoppel grounds. Before us now is WECA's petition for review of that determination. For the reasons that follow, we affirm.

I.

The building at the center of this controversy is a three-story row house located at 2140 F Street, N.W. It has been the site of a grocery store since 1946. The operation of that grocery on one floor of the building has been a lawful nonconforming use in a residentially zoned area since at least May 12, 1958, when the modern zoning map became effective.

In 2008, FoBoGro became interested in acquiring and modernizing the grocery business there. Before doing so, it applied for a new C of O to allow the entire building to be used for a grocery store and what its application referred to as a " sandwich shop." The Zoning Administrator approved the application and issued the requested C of O on August 21, 2008. The C of O provided that the total area of the building that could be devoted to the approved uses was 1,835 square feet, which encompassed all three floors. After receiving this C of O, FoBoGro purchased the business, leased the building from George Washington University, and eventually began renovating the property.

WECA did not learn of FoBoGro's August 2008 C of O until around August 2009. It then complained to the Zoning Administrator that the C of O improperly expanded a nonconforming use in two ...


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