Sodas and energy drinks, not allowed ... ... cigarettes and vaping products, still allowed, at 864 Whalley. A ​“Not For Sale” sign remains taped to the top of a beverage case filled with Monster energy drinks, Powerade and Diet Coke at the Grab n’ Go Market in Westville Village — where city zoners recently rejected Mohammed Ababneh’s bid to sell soda and prepackaged food in addition to vaping products and cigarettes.The Board of Zoning Appeals (BZA) took that unanimous vote last Tuesday during their latest monthly meeting, held online via Zoom and in-person on the second floor of City Hall.On the agenda for Tuesday’s meeting was Ababneh’s appeal of a cease-and-desist order he had received from the Elicker administration at the very end of October 2024 in regards to the Grab n’ Go Market he runs at 864 Whalley Ave. That’s the single-story storefront that used to house a Dunkin’ Donuts, and that is located in the middle of a commercial island bounded by Whalley Avenue, Fountain Street, and a closed-off block of Central Avenue, right at the heart of Westville Village.Ababneh had received a license from the city to run a supermarket/grocery at that location, which is a use that is allowed as of right in Westville Village’s BA‑2 district. A city inspector subsequently found that he had been operating a ​“convenience store,” which is not allowed in that district. The BZA’s vote and preceding debate raised questions about the difference between a ​“convenience store” — which does have a definition in the city’s zoning code — and a ​“grocery” — which does not. (The city’s zoning code defines a convenience store as “[a]ny retail establishment offering for sale prepackaged food products, household items, and other goods commonly associated with the same and having a gross floor area of less than 5,000 square feet.”)It also relegated another Westville Village storefront to selling primarily smoking and vaping products, when the owner had originally intended to sell food and drink as well. While alders are currently considering new zoning and permitting regulations for smoke shops, those aren’t on the books yet. That means Ababneh can continue selling smoking products even though the BZA has rejected his bid to run a convenience store.Reached by phone on Tuesday, Ababneh told the Independent that he hopes to open a deli or grocery at the Grab n’ Go now that his convenience store use has been turned down by the BZA. He said he’s in conversation with City Plan staffers, and is just waiting to hear what exactly he is or is not allowed to sell before moving forward.For now, that means the beverage cases at the Grab n’ Go are still off limits to customers. And the Marlboros and vape cartridges are still for sale.City Plan Director Laura Brown confirmed for the Independent on Tuesday that she had met with Ababneh. ​“There are lots of options of permitted uses that could exist at this site,” she said, including a ​“food specialty store,” which would include such products as eggs, fish, meat, poultry, nuts, cheese, coffee, and vegetables.“What we are not going to do is drill down into the list of items that a business has to carry. That’s not the purpose of the zoning ordinance. That’s for the business owner to decide,” she said. She said she has encouraged Ababneh to speak to a business counselor about who his customers are and what kind of products would be successful — and permitted — at this spot. As Ababneh’s lawyer, Joe Porto, explained to the zoning commissioners during Tuesday’s meeting, Ababneh had gone to the City Plan Department office last June and ​“specifically asked if he would be able to operate a convenience store” at 864 Whalley. ​“He was told that a convenience store is not allowed, but that a grocery store is” in the BA‑2 zone where the address is located.Ababneh proceeded to get approvals from a host of agencies — the building department, the fire department, the health department — to open a food service business last October. Porto said Ababneh received a text message from a city health department employee saying that he was all set and approved to open.In the meantime, Porto continued, Ababneh spent more than $50,000 ​“fitting out the store, purchasing food items, shelving, [and on] construction costs,” getting his store ready.But then, on Oct. 31 of last year, he received a cease-and-desist order from the city, telling him he could not sell food and drink at the Grab n’ Go as it was then set up.In defense of the city’s cease-and-desist order, Evan Trachten, a former long-time Livable City Initiative (LCI) employee who now works as the city’s building and zoning enforcement inspector, said that he went to the Grab n’ Go several times last October in response to a complaint.He found that the store was ​“operating as a convenience store and not as a supermarket/grocery, which was the health license we had in our system.”Trachten said that the Grab n’ Go’s had all of the telltale signs of a convenience store: ​“pretty much everything is a prepackaged item or a single-serving-size soda,” in addition to some home goods and cleaning items. There was no fresh fruit, no baked goods, no meat or poultry or fish, no flowers, nothing ​“akin to what I would consider an actual supermarket.”“This lines up with a convenience store,” he said, which is expressly not permitted in a BA‑2 zone.City Deputy Corporation Counsel Michael Pinto agreed. ​“The city’s position is that what was licensed was a grocery store. [A] typical understanding [is that a grocery store] would have fresh food, fresh meats, possibly a delicatessen and prepared foods.” Instead, all of the food being offered was prepackaged. Is there a definition of a supermarket-grocery use laid out in the city’s zoning code? Porto asked.No, Trachten replied. But, ​“in the absence of a definition, the common accepted practice” is to look at a definition in the dictionary or in state business registry codes. ​“We’re pretty familiar with what a grocery store looks like. What I’ve observed [at 864 Whalley was] much more akin to what is commonly like a gas station convenience store.”Porto countered that the Grab n’ Go has more than just prepackaged food. ​“There’s paper goods, toiletries, laundry, soap, items that are classically contained within a grocery or market.”When the commissioners opened the item up for public testimony, a half dozen Westville neighbors weighed in — all against Ababneh’s appeal.“From my perspective, it looked very much like a convenience store,” Westville Alder Adam Marchand said. He urged the commissioners to uphold the city’s cease-and-desist order.Westville Village Renaissance Alliance (WVRA) Executive Director Lizzy Donius said that, when WVRA and the city worked together to change the zoning for this part of town more than five years ago, they made a ​“very distinct effort to separate a convenience store from a grocery store. We would love a grocery store” in the neighborhood. But ​“we went to a lot of effort to make this small two or three block zone not to have a convenience store.”“We believe this is a convenience store, and not appropriate in that location,” agreed Susan Weisselberg.And Ben Trachten, speaking up as a Westville resident and not as an attorney, said that this case is ​“not even a close call. … Nothing I saw through the window of this business in the former Dunkin’ Donuts is what a reasonable person would consider a grocery-type use.”What the owner has built, he said, is ​“basically a vending bunker” with not a single perishable item. ​“This gentleman appears to have applied for a grocery and simply built a convenience store.”With that, the commissioners closed the public testimony portion of the meeting and, at the recommendation of BZA Chair Mildred Melendez, voted unanimously to uphold the city’s cease-and-desist order.