Agenda - Planning Commission - 06/04/2015

Home

May 10, 2015 1 Volume 9 1 Issue 9 Zoning Bulletin Defenses to Enforcement—One year after certificate of occupancy is issued, opponents argues that it allows illegally expanded nonconforming use Certificate holder says equitable estoppel should bar challenge to the certificate of occupancy Citation: West End Citizens Ass 'n v. District of Columbia Bd. of Zoning Adjustment, 2015 WL 1486512 (D.C. 201 5) DISTRICT OF COLUMBIA (04/02/15) This case addressed the issue of whether an applicant's reliance on a granted certificate of occupancy supported the application of equitable estoppel to bar a challenge to the certificate of occupancy. The Background/Facts: In 2008, Foggy Bottom Grocery, LLC ("FoBo- Gro") became interested in acquiring and modernizing a grocery business on a site in Washington, D.C. That site involved a three-story row house, which had a grocery operating on the first floor as a lawful nonconforming use in the residentially zoned area since at least May 1958. Before FoBoGro purchased the business, it applied for a new Certificate of Occupancy ("C of 0") to allow the entire building to be used as a grocery store plus a sandwich shop (also referred to as a "prepared foods shop"). The Zoning Administrator approved the application and issued the requested C of 0 on August 21, 2008. Subsequently, FoBoGro purchased the business, leased the building, and eventually began renovating the property. Approximately a year after the C of 0 was issued, the West End Citizens Association ("WECA") learned of the C of 0 and complained to the Zon- ing Administrator. WECA argued that the C of 0 improperly expanded a nonconforming use by allowing the grocery to expend to all three floors and by permitting the operation of a sandwich shop in addition to the grocery. The Zoning Administrator then initially revoked the 2008 C of 0, but eventually issued a replacement C of 0 in November 2009. The Zoning Administrator concluded that there was no expansion of the nonconfo!r- ing use (despite the expansion of the operation to three floors) and that the sandwich shop was a component of the grocery business. WECA appealed the November 2009 C of O. The District of Columbia's Board of Zoning Adjustment ("BZA") ruled that the C of 0 "did not autho- rize an impermissible expansion of the nonconfoinring grocery use, because that use had not been limited in the past to only one floor of the building, and because the incidental sale of prepared food for off-site consumption was part of the grocery business." 8 © 2015 Thomson Reuters