An Indiana court recently touched off a firestorm of media attention and online debate by ruling that burritos and tacos are sandwiches. The decision exemplifies a longstanding issue in legal interpretation: how to figure out the "ordinary meaning" of words in a statute or regulation. It also highlights the absurdity of zoning rules restricting the development and use of property.
The case arose because developer Martin Quintana wanted to use a property he owned in Fort Wayne, Indiana for commercial purposes. In order to be able to do that, he had to get the Fort Wayne Plan Commission (a local government agency) to "upzone" the area from allowing single-family residential housing only, to allowing some types of commercial uses. The Commission was only wlling to do that in exchange for Quintana signing a "Written Commitment" (required at the behest of a local NIMBY group) under which only certain types of restaurants would be allowed in the area. The restrictions imposed by the Commitment became new zoning rules for these tracts. Specifically, the Commitment bars "restaurants, including fast food-style restaurants," except for the following:
A sandwich bar-style restaurant whose primary business is to sell "made-to-order" or "subway-style" sandwiches (which by way of example includes, but is not limited to, "Subway" or "Jimmy John's", but expressly excludes traditional fast food restaurants such as "McDonalds", "Arbys" and "Wendys"), provided that any such restaurant shall not have outdoor seating or drivethrough service….
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