Tacos are Sandwiches under Indiana Zoning Law, By Brianna J. Schroeder

An Indiana judge has answered the age-old question…is a taco a sandwich? The answer, at least under Indiana zoning law, is YES.

A landowner in Fort Wayne, Indiana wanted to develop his property. He sought a rezoning from R1 (single family) to C2 (limited commercial). During the zoning hearings, to address certain remonstrators’ arguments, the landowner agreed to several restrictions to be contained in a Written Commitment. The Plan Commission granted the rezone, subject to the Written Commitment. The restriction prohibited “restaurants, including fast food style restaurants,” but made an exemption for a “sandwich bar-style restaurant” that sells “made-to-order” sandwiches. Such a sandwich restaurant would be permitted under the rezoning restriction.

The landowner developed the property and planned to allow a “Famous Taco” restaurant to occupy one of the tenant spaces. The remonstrator contacted the landowner and opined that the Famous Taco restaurant violated the Written Commitment. To avoid any uncertainty and in agreement with the remonstrator, the landowner filed an application with the Plan Commission for an amendment to modify the restriction to explicitly allow the Famous Taco restaurant. The landowner and remonstrator seemed to agree that the taco restaurant would not have been “clearly permitted” under the original language of the restriction. (The Court calls this a “curious” concession.)

During the ensuing public hearings, the Plan Commission debated the project. Some were concerned that the development had not been carefully planned and that the amendment was evidence the whole process had been reactive rather than a proactive planning process. The Plan Commission ultimately denied the request for the amendment to the Written Commitment. The landowner appealed the decision.

The Court gave discretion to the Plan Commission’s decision and upheld the denial of the request to amend the Written Commitment.


HOWEVER, the Court continued, a Famous Taco restaurant must be allowed to operate at the property under the terms of the original Written Commitment. In other words, the amendment was not necessary. The Court explained: “tacos and burritos are Mexican-style sandwiches.” The Written Commitment would also allow “sandwich” restaurants serving Greek gyros, Indian naan wraps, or Vietnamese banh mi. (This decision may conflict with a 2006 Massachusetts case where the judge ruled burritos were not sandwiches.)

The lessons for agriculture in this case? First, courts continue to give substantial discretion to local boards’ zoning decisions. Second, this discretion does not prevent a Court from interpreting the words in a Written Commitment pursuant to our zoning code (Indiana Code 36-7-4). Third—and most importantly—a taco is a sandwich, after all. Next up, where do hot dogs fall on the sandwich spectrum?