What’s Going on With Call Your Mother?

Call Your Mother, the hugely popular bagel shop, may have to close its Georgetown location in the near future. “What!?” you may be asking. Yes, indeed. Depending on the outcome of the decision of the Board of Zoning Adjustment, Call Your Mother may no longer be able to operate as it has been doing at its Georgetown location since 2020.

How did we get here?

It’s a long story, so settle in.

Let’s start way back in the 1850s. (I wasn’t kidding about it being a long story). Sometime around 1859, a building was constructed at the southeast corner of Fayette and Second Streets. It was constructed to have a grocery store on the first floor, with a residence on the second floor. This was a common sight in Georgetown in the century before supermarkets were invented. Back then most people bought their food from small corner grocery stores, which themselves obtained their supplies wholesale from the large city markets, like Central or Eastern Markets.

A grocery store stood at this location well into the 20th century. For a long time it was a location of the chain of small grocery stores operating under the name “Sanitary Grocery Co.” Here’s an ad from 1926 listing the address (by then Fayette Street had become 35th and Second Street became O St., and so the address was, and is, 3428 O St.):

But the arrival of the supermarket model in the mid-20th century brought the days of the ubiquitous corner grocery store in DC to an end. For this location that end was in 1970, when a health foods store opened up in its place. It only lasted about a year and was then replaced with an antiques store. This lasted for many years and was ultimately replaced by a flower shop. The flower shop closed in 2019 at which point Call Your Mother signed its lease to operate here.

In the background of this story is another, deeply consequential story: the history of zoning.

The District of Columbia adopted its first significant zoning code in 1920. Modeled on the relatively new zoning laws in New York City, the zoning code, not surprisingly, required a zoning map. The map delineated which blocks had which zoning. The first zoning map for Georgetown acknowledged what had always been true: that there were commercial blocks tucked away in the neighborhood. As you can see in this map, the dark blocks were commercially zoned blocks:

Notably, despite the fact that the grocery store at 35th and O St. had already existed for well over a half century at this point and several other buildings on the block were also built and used for commercial purposes, this particular block does not appear to have been zoned commercial. (Similarly, all the other corner store lots that were all over Georgetown were also not zoned commercial.) But notably, all of 36th St. south of P St. was zoned commercial (this will become important later).

By 1936, the city bowed to pressure from groups like the Citizens Association of Georgetown, which took a hostile view on mixing commercial uses in primarily residential blocks. So the commercial zoning was limited in the 1936 map:

(But again, note that 36th St. remained zoned for commercial despite the fact that it only had about as many commercial establishments as 35th St. did.)

Finally in 1958, the city adopted this map, which remained in place until last decade:

By this point, only a few pockets of commercial zoned blocks remained tucked away off of M and Wisconsin.

But a handful of the corner stores remained, despite the pressure from the regulations and the challenges from the supermarkets. Neighborhood gems like Sara’s and Scheele’s remained. That’s because the zoning regulations allow “non-conforming” uses (i.e. otherwise illegal uses) to continue under grandfathering. So long as the non-conforming use continues the zoning regulations will permit it. But if the use is interrupted for three years, the grandfathering evaporates and the store must close. So, for instance, if Sara’s, which recently was closed for an extended period, had remained closed for three years, it could not reopen at that location, with one big exception (which I will get to, I promise).

So the Sanitary Grocery store that existed at 35th and O Street for many decades was operating as a non-conforming use due to it operating before the regulations were adopted. (Hell, it was operating before most of the people who wrote the regulations were even born.)

But as I mentioned, in 1970 the grocery store went out of business. Another grocery store could have opened within three years without a problem. Instead, the property owner, Roy Jones, attempted to open a deli. Since this use was not the same use as the previous non-conforming use, he needed to seek what is known as a use variance. This is basically permission to operate under a different zoning conditions than your property is supposed to have under that existing map. For some reason not identified in the order, this variance request was withdrawn. The short-lived health foods store opened instead. (Given the subsequent history with Call Your Mother also seeking a deli and running into problems, the withdrawal may count as foreshadowing, I suppose.)

In 1973, however, when the antiques shop wanted to open, Mr. Jones had more success. The BZA granted his request for a variance that changed the use zoning for the property from the non-conforming grocery use to C-2, a now-defunct use code that allowed retail sales. The antiques shop and the flower shop operated under this 1973 variance.

Which finally brings us back to Call Your Mother.

After signing the lease, the owners of Call Your Mother discovered that zoning might be a problem for them. The 1973 variance only allowed retail sales. Selling bagel sandwiches doesn’t count as “retail sales”. So some sort of zoning relief would be necessary for them to open. In 2019 they applied for the same thing that Mr. Jones applied for in 1973: a use variance.

It’s important to understand that use variances are generally quite hard to obtain. The burden is on the applicant to show that there is something wholly unique about his or her property such that to apply the normal zoning regulations to it would be an undue hardship on the property owner. For instance, say the zoning code requires a setback of 10 feet from your neighbors’ property but your property is only 10 feet wide. Without a variance you simply couldn’t build anything on your property. So in Call Your Mother’s case, the applicant would have to show that to use this property as residential (which the default zoning requires) would be an undue hardship.

Call Your Mother went about making just that argument. And it’s not terribly unreasonable. The building was purpose-built to be commercial on the first floor and residential on the second. Forcing the first floor to be residential would be a bit of a square peg in a round hole.

But during the public hearings for their zoning application, the BZA suggested to Call Your Mother that they amend their application to an area variance. An area variance is slightly different from a use variance. Whereas a use variance gives the applicant the right to use their property in a way that zoning wouldn’t typically allow, an area variance allows the applicant to do something that would typically be disallowed due to some geographically based limitation. For instance, say a zoning rule states that you cannot have a pool within 1,000 feet of a wetland. An area variance would allow you to build a pool within 1,000 feet. (Also, generally an area variance is easier to obtain than a use variance.)

Why would an area variance help Call Your Mother? To explain that, I’ll have to jump back in the Time Machine, although my trip won’t be nearly as far.

Last decade, the city finally got around to significantly updating the zoning code (the one that was substantially the same since the 1950s). The changes incorporated a lot of policy goals that had become important to the city government in recent decades. One of those goals was the return of those historic corner stores that once dotted neighborhoods like Georgetown. As I mentioned, under the longstanding regulations, once the old corner stores went out of business, if they weren’t quickly replaced, they became illegal to operate. And it was nearly impossible to open a new corner store where there hadn’t been one.

To address this, the city introduced a new legal category: the Corner Store (I’ll use capital letters to distinguish this legal category from the generic idea of corner stores). In a residential zone, a Corner Store can open on any corner so long as it meets certain conditions, including not being too close to too many other Corner Stores. And (this is important) in Georgetown specifically, a Corner Store cannot be located within 750 feet of a block that is zoned commercially. (The idea behind this rule-which I opposed at the time and still think is a bad idea-is to prevent “commercial creep” off the main commercial corridors into the residential neighborhood.)

So long as the Corner Store meets these conditions, it can open without seeking any zoning relief and operate by-right (i.e. without having to seek any zoning relief) as a fresh food market or grocery store.

(That is why I mentioned above that under the new rules, Sara’s could have reopened even if it had been closed for more than three years. But the same couldn’t be said of Morgan’s or Scheele’s. They’re both within 750 feet of the commercial blocks on P St. Do you see what I mean when I say this 750 foot rule is a bad idea?)

And so the reason that the BZA suggested to Call Your Mother to amend its original zoning application to an area variance was because the only thing preventing the store from opening as a Corner Store was the proximity to the handful of commercially zoned blocks left over on 36th st. In other words: due to these 36th St. blocks arbitrarily getting zoned commercial in the 1920s, Call Your Mother would not be allowed to operate a Corner Store on the same location that a corner store had existed since before 35th St was still called Fayette St. An area variance would fix that preposterous result.

Furthermore, the BZA reasoned that as a Corner Store, Call Your Mother could sell bagel sandwiches by-right because it would fall under the fresh food market category. And in 2020, after a bunch of hearings, the BZA issued an order saying just that.

And then Call Your Mother opened.

And then the neighbors sued.

You see, from the moment the store was announced, a group of residents around the store have objected to the plans. The complaints were and are many, but the most pertinent is the (ultimately correct) predication (and later observation) that a store as massively successful as Call Your Mother would bring massive crowds of people. And massive crowds of people tend to bring–if not massive, at least substantial–crowds of jerks. And crowds of jerks do things like sit on strangers’ front steps eating bacon, egg and cheese sandwiches even after they’ve been told not to.

The group of neighbors (and it’s important here to point out that not all neighbors joined in this effort) brought their legal claim to the courts, arguing that the zoning order was issued in error.

And for the most part, the court didn’t agree. However, in one critical part the court did agree. Specifically, the DC Court of Appeals ruled that selling bacon, egg and cheese sandwiches counts as selling prepared food and selling prepared food is not a by-right use for Corner Stores. (The court also asked the BZA to bulk up its justification for the area variance, but didn’t specifically reject it.)

The matter was remanded back to the BZA. And in a hearing earlier this year, the BZA admitted that its suggestion back in 2019-20 was in error and dismissed the zoning application. Call Your Mother was told to simply reapply for a different relief. (I’ll get to that in a second.)

In other words, the zoning relief that Call Your Mother had been operating under since 2020 completely evaporated. However, despite no longer having a legal right to operate as a bagel shop, the city permitted Call Your Mother to continue operating while it sought the new relief. That’s why it’s still open.

And what is that new relief?

Well, I’ve told you that Corner Stores may operate as fresh food or grocery stores by-right. But they also can do other things–including selling prepared food–if they obtain a different form of relief: a special exception.

Special exceptions are generally easier to obtain than a variance. The burden is placed on the objecting neighbors to show that it would be an undue burden on them if the special exception were granted.

So the new Call Your Mother application is two-fold:

• The original area variance request to operate as a Corner Store despite still being too close to Wisemiller’s; and
• A new special exception request to sell prepared foods as a Corner Store.

There are a string of conditions specific to a Corner Store special exception. But the key one (at least in my view) is the first one:

A corner store use shall be located so that it is not likely to become objectionable to neighboring property because of noise, traffic, deliveries, or other objectionable conditions;

And it’s on this condition that I choose to join four of my ANC colleagues and vote in favor of a resolution that withholds support for this special exception. I simply cannot deny that the large crowds of people outside the store every single Saturday and Sunday has become an objectionable condition for the nearby residents.

This is the resolution we adopted:

For BZA case #21143, ANC 2E is providing a resolution to the Board of Zoning Adjustment (BZA) regarding the zoning relief being sought for the property at 3428 O Street NW.  A renter that is already operating their business at the location is applying for this relief on behalf of the owner of the property.  

The zoning relief requested by BZA case #21143 is to allow for a corner store that sells prepared food. The applicant is seeking both an area variance and a special exception. In short, the area variance would allow the applicant to operate as a corner store notwithstanding the fact it is within 750 feet of a commercially zoned lot. The special exception would allow the applicant to sell prepared foods, which is not allowed by-right even as a corner store. 

Addressing the special exception first: the critical element is that no special exception shall be granted if the intended use is likely to become objectionable to neighboring property because of noise, traffic, deliveries, or other objectionable conditions. Due to the unusual procedural history of this case, this analysis is somewhat unusual because the intended use is not merely theoretical. We have nearly four years of observations to judge whether it has in fact become objectionable. And the ANC concludes that it has.

Most notably, the ANC concludes that the large crowds that critically cannot be contained within the establishment create a routine objectionable condition. The applicant has made attempts and promised plans to address these crowds and the detrimental impact they have, but these attempts have not and will not succeed without a fundamental shift in shop operations. Therefore the ANC cannot support the special exception at this time.

With regards to the area variance, the ANC has no objection to this property operating as a corner store in conformity with the relevant corner store regulations concerning use, which among other things prohibit the sale of prepared foods without the aforementioned special exception.

In voting to approve this resolution, I still believe that Call Your Mother can operate at this location. I just think it will require a dramatic shift in how they do business. That’s why I pushed for the resolution to say that we simply cannot support the application at this time.

For that to change to “support” (at least from me), I believe that the store must find a way to provide interior space for seating in order to discourage so much eating immediately outside the neighbors’ houses. Perhaps the food preparation can be moved to the cellar with more of the ground floor dedicated to tables? Maybe the second floor residential can be converted? I just know that for nearly four years, whatever steps the store has taken have not been sufficient. And I do not believe the new promised steps (most notably a staff member dedicated to policing outdoor behavior) will be adequate.

I supported this store when it was first trying to open. I testified at a BZA hearing to state that I was involved in the zoning rewrite and it was my belief that the 750 foot rule should not be an obstacle to a Corner Store opening here. I still believe that.

I also believe that this block should have always been zoned commercially. It’s ridiculous and arbitrary that it is not and yet the Wisenmiller’s block is. Commercial blocks tucked away in the residential areas of Georgetown is a huge part of the history of Georgetown. And it has always depressed me that the Citizens Association of Georgetown—an organization that has always claimed to value and protect Georgetown history—was in the forefront of eliminating these historic commercial uses through the efforts of legendary leaders like Eva Hinton. We cannot claim to preserve history if we take such a selective view on what counts as history worth preserving.

But with the imperfect zoning regulations and maps we find ourselves with, the ANC was asked to take a position on the area variance and the special exception. We supported the area variance. And we simply chose not to support the special exception based upon the application as it stands.

That’s my position, at least. At the end of the day, though, the ultimate decision will come from the BZA itself. And your guess how they’ll go is as good as mine. (For what it’s worth, the BZA has developed a reputation in recent years for leniency. So I personally wouldn’t bet on them denying the special exception even after the ANC’s decision not to support it.)

It is still my hope that the store responds to the ANC’s resolution and comes up with some novel plans to finally address the concerns. And then the BZA can approve it and the store won’t close, but we’ll have to see.

For now, though, the store is still open. So please go and enjoy their bagels! Just please don’t sit on the neighbors’ front steps while you do it!