An Indiana court recently ruled that burritos and tacos are sandwiches, sparking media attention and online debate. The decision reflects a long-standing problem in legal interpretation: how to figure out the “ordinary meaning” of words in a statute or statute. It also highlights the absurdity of zoning rules that restrict property development and use.
The case arose when developer Martin Quintana wanted to use a property he owned in Fort Wayne, Indiana, for commercial purposes. In order to do that, he had to get the Fort Wayne Planning Commission, a local government agency, to “upgrade” the area from allowing only single-family homes to allowing certain types of commercial uses. The council was willing to do this in exchange for Quintana signing a “written undertaking” (at the request of a local NIMBY group) under which only certain types of restaurants would be allowed to open in the area. The restrictions imposed by that pledge became the new zoning rules for those areas. Specifically, the commitment column is “Restaurants, including fast food-style restaurants,” with the following exceptions:
Sandwich bar-style restaurants whose primary business is selling “made-to-order” or “Subway” sandwiches (for example, including but not limited to “Subway” or “Jimmy John’s”, but specifically excluding traditional fast food restaurants such as “McDonald’s”, ” Arbys” and “Wendys”), provided that any such restaurant shall not have outdoor seating or drive-thru service….
One of the tenants Quintana has recruited for the new development is the popular Taco Restaurant, a Mexican restaurant that (as the name suggests) serves tacos and burritos. The planning committee believes the famous burritos should be banned because they are not “sandwiches.” Indiana Superior Court Judge Craig Bobe rejected that argument, concluding that burritos and tacos are actually sandwiches:
The proposed Famous Taco restaurant falls within the general uses approved in the original written commitment. The proposed Famous Taco restaurant would offer made-to-order tacos, burritos and other Mexican-inspired foods and would not offer outdoor seating, drive-thru service or serve alcohol. The court agreed with Quintana that tacos and burritos were Mexican-style sandwiches and that the original written promise did not limit the potential restaurant to serving American-style sandwiches. The initial written commitment also allows restaurants to offer customized Greek gyros, naan rolls or Vietnamese sandwiches, provided they comply with other enumerated conditions.
In Indiana, as in most jurisdictions, courts are generally required to interpret laws (or in this case, agreements that are legally valid by virtue of being embodied in zoning restrictions) based on their “ordinary meaning.”The Indiana Supreme Court recently reaffirmed this rule in a February ruling spell v. state.
Are tacos and burritos considered “sandwiches” in the ordinary sense? Hard to say. I don’t think most Americans would typically refer to these items as sandwiches. On the other hand, it’s not hard to see why a taco or burrito falls into the general concept of a sandwich as most ordinary people understand it: meat and/or vegetables wrapped in bread or other similar packaging. Therefore, Judge Bobe may be correct in concluding that tacos and burritos are “Mexican-style sandwiches,” although few would actually call them that. It all depends on whether ordinary meaning depends on usage or on one’s intuitive theoretical understanding of the concept in question.
The ruling differs from a controversial 2006 ruling by a Massachusetts court that held that tacos, burritos and quesadillas were not no Comes with the common meaning of “sandwich” as the term usually refers to food wrapped in a sandwich two Slices of bread, and these Mexican foods usually only have one slice of bread. Judge Bobe did not cite the Massachusetts precedent, which, to be fair, is not binding in Indiana. Nor did he consider the question of whether a sandwich must have two slices of bread instead of just one.
Food wrapped in a continuous piece of bread (or tortilla wrap) still counts as a “sandwich” in my mind. The top and bottom of a hamburger or hot dog roll are sometimes connected. But that doesn’t mean burgers and hot dogs can’t be sandwiches. My wife (who is a lawyer and knows a lot more about food than I do) pointed out that there are some “open sandwiches” that only use one slice of bread.
Perhaps such questions reveal the limits of the rules of interpretation in the “ordinary sense.” Regular people (at least people who aren’t lawyers) don’t usually think about these difficult questions. So when a question arises like whether a burrito qualifies as a sandwich, there may not be any clear “ordinary meaning” answer to the question at hand.
Whatever you think of the definition of “sandwich,” this case highlights the absurdity of zoning restrictions on development. Unless there was some significant danger to public health or safety (no evidence here), Quintana should never have gotten a special permit to use his property for commercial purposes in the first place. It makes even less sense to allow restaurants to serve “‘made-to-order’ or ‘subway-style’ sandwiches” but not other kinds of food. The distinction appears to be based solely on the aesthetic preferences of the Covington Creek Association, a NIMBY group that pressured the Planning Commission to impose this restriction on the development.
This NIMBYism causes real harm both to property owners (who are denied the right to use their land as they see fit) and to consumers who wish to patronize its services. I’m not a big fan of tacos and burritos myself. But a lot of people do, which is why there’s a huge demand for restaurants like Famous Taco.
in the upcoming one Texas Law Review Josh Braver and I argued in the article that exclusionary zoning rules that restrict housing construction violate the takings clause of the Fifth Amendment. Limitations on commercial development are a more complex situation. But under the originalist theory discussed in the second part of the article, such restrictions also infringe upon rights of use of property protected by the Takings Clause unless they prevent a serious threat to public health or safety and thus fall within the “police powers” exception (see Section II.C). The situation may be different according to the living constitution approach described in Part III of this article.
