Restaurateurs enraged as D.C. bars some fast-casual eateries

Peter Bayne called his partners in Smoked & Stacked as soon as he got the bad news. The D.C. Department of Consumer and Regulatory Affairs had determined that their sandwich shop, featuring smoked meats by former “Top Chef” contestant Marjorie Meek-Bradley, qualified as a fast-food restaurant and that their location — on the Ninth Street NW side of the Walter E. Washington Convention Center — is not zoned for fast food.

As soon as the words were out of Bayne’s mouth, Meek-Bradley and fellow Smoked & Stacked partner Geoff Dawson lost it. “I had to hold the phone away from my ear,” Bayne recalls.

Between the two of them, Dawson and Bayne have opened more than 15 bars and restaurants in the District. But neither had known that the District treats fast-food restaurants differently from the full-service kind. And they’d had no reason to suspect that they would run into problems at the convention center. There is, after all, a Sbarro pizza outlet on the other side of the building, along Seventh Street NW.

“It was a surprise to us as much as it was a surprise to the landlord,” says Bayne. Their landlord, incidentally, is Events DC, the quasi-governmental group that owns and manages the convention center and Nationals Park.

Because fast-food joints are restricted along Ninth Street, but not all of Seventh, the Smoked & Stacked partners would need to get an exemption from the District’s Board of Zoning Adjustment, a process that could take months. They didn’t have months. They had already hired a general manager and had started paying rent.

Bayne, Meek-Bradley and Dawson had to make some quick decisions: Should they pursue an exemption from the board, which would take time and cost them thousands in legal fees? Should they rework their concept? Or should they wait until Sept. 6, when new zoning regulations will go into effect, potentially ending this surreal era in which fast-casual eateries and chef-driven sandwich shops are lumped in the same category as Burger King, McDonald’s and Popeyes?

“Marjorie said, ‘The fact that my food is fast food is insulting,’ ” says Bayne about Meek-Bradley, who also leads the kitchen at Ripple in Cleveland Park.

“She’s not wrong,” he adds. “It’s not fast food. This is just a category that was created to slow down McDonald’s and Burger King years ago.”

New rules, new conflicts

Smoked & Stacked’s partners are not the first D.C. restaurateurs to grapple with this problem. The Board of Zoning Adjustment has dealt with countless requests for exemptions to the rules that prohibit fast-food restaurants near residential neighborhoods. They have come from a broad variety of businesses, from Einstein Bros. Bagels to Real Spice Jamaican Eatery, but one group in particular has been a frequent petitioner: craft-conscious counter-service eateries such as Smoked & Stacked, often labeled “fast-casual” restaurants in the industry.

Fast-casual chains such as Chipotle, Nando’s Peri-Peri, &pizza and others need exceptions because under current regulations, they qualify as fast-food restaurants even though they typically offer higher-quality ingredients than your average Mickey D’s. At present, the District deems an establishment a fast-food restaurant if it includes any one of the following: a drive-through window; customers who pay for their food before they eat it; meals served with disposable plates and flatware.

The D.C. Zoning Commission levied its first restrictions on fast-food eateries in 1985, when the major chains were spreading to parts of the District where residents and Advisory Neighborhood Commissions did not welcome them . Locals and ANC commissioners didn’t want the car traffic, the pedestrians, the litter, the late-night hours or the “gaudy signs” associated with fast-food joints, according to the original 1983 petition from two ANC commissioners representing Columbia Heights, Shaw and other neighborhoods.

Before the restrictions went into effect, the District had no limitations on where fast-food restaurants could locate, which accelerated their spread. The Washington Post reported in May 1985, when the zoning commission first passed emergency regulations, that the District had 130 fast-food restaurants, 35 more than the previous year. The number of fast-food outlets, in short, had jumped 37 percent in one year.

For years after the original restrictions were enacted, DCRA, the enforcer of city regulations, had to work through some bizarre calculations to decide whether a place was a fast-food restaurant. The agency, for example, had to determine whether at least 10 percent of the public floor space was devoted to patrons waiting in line to order. It also had to determine, before the restaurant even opened, whether 60 percent of its food items had been pre-prepared or packaged before a customer placed an order.

It’s almost impossible to tell whether the city’s tortuous regulations have had their desired effect: DCRA says fast-food restaurants continue to open at a steady clip, but without reviewing every single certificate of occupancy, the agency can’t determine which ones were issued to traditional fast-food joints and which ones went to fast-casual restaurants such as Cava Mezze or &pizza.

One thing’s for certain, though: The rules have led to conflicts. In 2006, the ANC for H Street NE protested the occupancy permits issued to several restaurants, arguing that the establishments were, in fact, fast-food joints. In the case of a Cluck-U Chicken franchise, the ANC said the place had such a “brisk carryout business” that its “off-premises consumption exceeds on-premises consumption.”

Hoping to solve the problems it had helped create, the D.C. Zoning Commission amended its food-fast rules in 2007, approving the current three-point definition. A restaurant now has to meet only one of the three criteria to get slapped with the fast-food tag. There are no shades of gray: If a restaurant has a drive-through window, asks for money up front or uses disposable dishware, it’s a fast-food joint. No if, ands or buts.

More change, in September

For whatever reason, the District has become a fast-casual incubator, not only attracting popular chains such as Nando’s and Bobby’s Burger Palace but also nurturing its own brands such as &pizza, Taylor Gourmet, Sweetgreen, Cava Mezze and Beefsteak. These operations, whether local or national, tend to follow a formula: Ditch the low-grade ingredients and the uncomfortable settings of fast-food joints but maintain their speed, a quality cherished more than ever in the Internet Age. They also tend to play up their connections to celebrity chefs and the farm-to-table movement, those twin darlings of the modern dining scene.

Nando’s chief executive Burton Heiss says he was familiar with Washington’s fast-food restrictions when his South African-Portuguese chicken chain tried to open an outlet in Woodley Park. What surprised him was that the exemption process also included the local ANC, which could impose stipulations to lessen the impact of a fast-food operation. The local ANC did just that: It recommended limiting Nando’s exemption to five years, which the Board of Zoning Adjustment approved.

The five-year restriction made no business sense to Nando’s. The company had planned to invest $1.7 million to build out the former Bank of America space on Connecticut Avenue NW and intended to sign a 10-year lease with the landlord, with two five-year options to renew.

So Nando’s backed out, which caused a mini-uproar in Woodley Park, particularly after a blog floated the rumor that a 7-Eleven might take over the space. The ANC reconsidered and gave Nando’s a 10-year exemption. Nando’s now expects to open in Woodley Park at the end of this month.

Nando’s victory didn’t come cheap. Heiss estimates the chain spent nearly a year and somewhere between $50,000 and $100,000 in legal fees to secure the exemption. “It was not easy,” the executive says.

Even though obtaining an exemption can chew up time and cash, &pizza co-founder and chief executive Michael Lastoria says he has seen the benefits of working with the ANC. The process allows the D.C. chain to hear from residents about the problems in their neighborhood, whether rats, stench or noise, Lastoria says. The restaurant, in turn, can address those concerns and generate goodwill. The process can show locals the difference between a good neighbor and a corporate interloper.

The fast-food restriction, “while it was limiting, all it did was create a conversation that I find healthy,” Lastoria says. The costs, he adds, are ultimately offset “by the relationships you develop and the people you meet along the way.”

The new zoning regulations, more than eight years in the making, will kick in Sept. 6. Among the many changes is a new definition of a fast-food restaurant. The city has relaxed the language: There are now five characteristics that define such a place, but no single one automatically places a restaurant in fast-food land. The D.C. Office of Planning, the lead agency in drafting the revised regulations, notes that the new definition gives DCRA more flexibility.

In other words, the DCRA zoning administrator will be able to look at the totality of a restaurant, not at any single element, to determine whether it falls into the fast-food category.

Depends on the money

The switch from a fixed definition to an interpretative one makes some restaurateurs nervous. It introduces an element of human judgment into the determination process. And where there is human judgment, there is inevitably error.

Despite that, Peter Bayne and his partners with Smoked & Stacked are rolling the dice. They decided to alter their concept — but only on paper — to secure the necessary building permit to do some needed construction. They have no intention of opening as a “restaurant” where customers receive a check only after they get their sandwiches.

But come Sept. 6, the owners are betting that DCRA will deem Smoked & Stacked a restaurant, even though the place will operate in a manner that could still define it as a fast-food shop. Bayne and his partners say they are certain the DCRA zoning administrator will make the right call. If they’re right, the partners expect to open within days after the new regulations take effect.

But what happens if, by chance, DCRA determines that Smoked & Stacked still qualifies as a fast-food joint?

The owners would then have to change their concept for real or file an appeal. If the latter, they would find themselves in the very situation they had hoped to avoid: going before the Board of Zoning Adjustment, spending more time and money.