Ward 5 Improvement Ass'n v. Dist. of Columbia Bd. of Zoning Adjustment

• Decision Date: 21 August 2014
• Docket Number: No. 12–AA–1444.,12–AA–1444.
• Citation: 98 A.3d 147
• Court: D.C. Court of Appeals
• Parties: WARD 5 IMPROVEMENT ASSOCIATION, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent.

98 A.3d 147

WARD 5 IMPROVEMENT ASSOCIATION, Petitioner,

v.DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent.

No. 12–AA–1444.

District of Columbia Court of Appeals.

Argued Jan. 29, 2014.

Decided Aug. 21, 2014.

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 ¹ 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.² 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 activitiesand 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.³ 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 rules, dancers must limit “floorwork” to three seconds ⁴ and must refrain during performances from physical contact with customers and with other dancers.

In letters and emails sent to DCRA on May 10, May 20, June 7, and June 10, 2010, Don Padou, a resident of the District's Fifth Ward, urged DCRA to deem Stadium Club a SOBE. On June 11, the Ward 5 Improvement Association—led by Don Padou and including some of Stadium Club's neighbors—appealed to the BZA the ZA's issuance of the temporary certificate of occupancy, alleging that “Stadium Club is a sexually oriented business” and that “the Zoning Administrator erred in failing to apply the relevant zoning regulations.” The BZA notified the ZA of Ward 5's appeal on June 15. One week later, on June 22, 2010, the ZA granted a permanent non-SOBE certificate of occupancy to Stadium Club. Ward 5 immediately asked the BZA to amend its appeal to include this first permanent certificate of occupancy.

On July 19, 2010, the D.C. Office of Zoning, and thus the ZA, received notarized affidavits ⁵ from Benjamin Petok and Marshall Chriswell, two individuals recruited by Ward 5 to visit Stadium Club and report their observations. They had visited on the evening of June 16, 2010, for approximately five hours. In his affidavit, Mr. Petok described how dancers began their performances wearing a bikini or dress and removed all their clothing during the performance. According to Mr. Petok, one dancer, “Star,” would “crouch” and “touch the area around her vagina” when a customer approached the stage, and “[a]fter exposing her vagina to the customer, she would ask for a tip to be placed in her elastic garter belt.” Mr. Petok described how another dancer, “Cory,” would “stand[ ] facing away from the customer and bend[ ] over, exposing her anus and vagina.” In a private back room performance, according to Mr. Petok's affidavit, Cory rubbed her nipples and vagina and “whispered in [his] ear” and “rubbed her hand on [his] chest and back.” Mr. Petok also reported that a third dancer, “Sonny,” in a different backroom performance, positioned herself “very close” to his face, “fondled” her breasts, sat and “grind[ed]” on his lap, and permitted him “to touch her legs, back, buttocks and breasts.” ⁶ When Sonny performed “table dances”—a performance on a lounge table for an individual patron or group of patrons—“she encouraged patrons to touch her legs and arms.”

On February 9, 2011, Stadium Club applied for a second permanent certificate of occupancy, seeking to add a “summer garden” with 15 seats. Evaluating this application, the ZA, “given the questions that had been raised” decided “to do some further investigation to ensure that the use was still a use that's approvable under the Zoning Regulations,” as he testified before the BZA. He sent a member of his staff, Justin Bellow, to observe the performances. Mr. Bellow visited Stadium Club on Thursday, March 24, 2011, for approximately 40 minutes, starting at 11:30 p.m. In a post-visit report, he stated that dancers began their performances in bikinis or lingerie and “disrobe[d] while performing.” He stated that dancers and patrons had “minimal interaction” during table dances, “as dancers performed on tables while the patrons remained seated.” He stated that he witnessed “instances where a dancer would momentarily touch her breast and/or buttock, but these instances lasted for no more than a second and in [his] opinion did not rise to the level of fondling.” He finally asserted that he “did not witness any of the dancers engaging in any acts of human masturbation, sexual intercourse, sexual stimulation or arousal, sodomy, or bestiality during my time at the establishment.” He did not examine the back rooms, and in his testimony before the BZA, he stated that he could not remember whether he heard patrons “whooping or yelling when a dancer made a particular move.” In response to questioning, Mr. Bellow acknowledged that he saw the dancers “bend over and expose their anus or vagina to the patrons,” but claimed that “[i]t's not like they just completely stopped what they were doing and decided to bend over. Again, it's rhythmic. It's maneuvers being performed in time with the music.”

In addition to debriefing with Mr. Bellow, the ZA discussed the establishment's planned use with its owners, reviewed its rules for dancers, and consulted with personnel from the District of Columbia Alcoholic Beverage Regulation Administration about their visits to Stadium Club.⁷ The record does not reflect what consideration the ZA gave to Mr. Petok's and Mr. Chriswell's affidavits. On June 24, 2011, the ZA granted Stadium Club a second permanent certificate of occupancy, again approving use as a non-SOBE nightclub and restaurant.

Five days later, Stadium Club moved to dismiss Ward 5's appeal, arguing that “[a]s the Certificate which is at issue in this appeal has been superseded and no longer is utilized, this appeal is moot.” Ward 5 opposed the motion to dismiss and moved to amend its appeal to include the second permanent certificate of occupancy. DCRA agreed with Stadium Club that Ward 5's appeal of the first permanent certificate was “moot” and urged the BZA to deny Ward 5's motion to amend because “DCRA's...