American U. Park Citizens Ass'n v. Burka

• Citation: 400 A.2d 737
• Decision Date: 20 March 1979
• Docket Number: No. 12597.,12597.
• Parties: AMERICAN UNIVERSITY PARK CITIZENS ASSOCIATION, et al., Appellants, v. David BURKA et al., Appellees.
• Court: D.C. Court of Appeals

Page 737

400 A.2d 737

AMERICAN UNIVERSITY PARK CITIZENS ASSOCIATION, et al., Appellants, v. David BURKA et al., Appellees.

No. 12597.

District of Columbia Court of Appeals.

Argued May 10, 1978.

Decided March 20, 1979.

Frank M. Northam, Washington, D. C., with whom William J. Butler, Jr., and Mitchell W. Dale, Washington, D. C., were on the brief, for appellants.

Norman M. Glasgow, Washington, D. C., with whom John F. McCabe, Jr., and J. E. Bindeman, Washington, D. C., were on the brief, for appellees David and Fred Burka.

Louis P. Robbins, Principal Deputy Corp. Counsel, with whom John C. Salyer III and Edward L. Curry, Asst. Corp. Counsels, Washington, D. C., were on the brief, for appellees Dist. of Columbia Surveyor, Dist. of Columbia Dept. of Economic Development, and Dist. of Columbia Zoning Commission.

Before NEWMAN, Chief Judge, and MACK and FERREN, Associate Judges.

FERREN, Associate Judge:

In late 1976, three citizen associations and four neighborhood residents (appellants) filed suit to enjoin the issuance of a building permit to David and Fred Burka, who intended to construct a 194,420 square foot building for retail stores and offices on Massachusetts Avenue between 48th and 49th Streets, N.W.¹ Appellants argued that a structure of that size was premised on the unlawful closing of an alley in 1973, facilitating the combination of five lots into one and, as a result, permitting construction of a larger building than the previous, smaller lots could lawfully accommodate.

Appellants, more specifically, urged the trial court to set aside the alley closing, enjoin the building permit, and restrain construction for the following reasons now advanced on appeal: (1) the National Capital Planning Commission (NCPC) and the District of Columbia Council did not make findings, required by the Street Readjustment Act, D.C.Code 1973, §§ 7-401, -403, that the alley was "useless or unnecessary," and that its closing would be "in the public interest" and not "detrimental" to the rights of abutting property owners; (2) NCPC's consideration of the matter was void in any event for conflict of interest, because the chairman of the NCPC Transportation Committee, which recommended the alley closing, was also the architect for the property owners who sought the closing; (3) NCPC and the Council had approved the alley closing based on a representation — now a misrepresentation — that the applicants would construct a 95,822 square foot building, not one over twice as large; (4) even if the alley closing complied in all respects with the statute, the Burkas' use of that closing to "borrow" floor area ratio (FAR) from one lot for a larger building on another lot would be an unlawful circumvention of the zoning process; and (5) the planned structure would violate the Home Rule Act because it would not be consistent with the Comprehensive Plan for the National Capital.²

After a hearing, the motions judge granted summary judgment for the Burkas. He held that appellants were barred by lathes from challenging the alley closing on the first two grounds, and that their other three arguments must fail on the merits. We affirm these rulings.

I.

On October 14, 1972, counsel for Kogod & Burka Enterprises, Inc., then owners of the property at issue in this case, wrote the Surveyor of the District of Columbia requesting amendment of an earlier application to close the public alley separating Lots 2, 3, 4, and 5 from Lot 7 in Square 1499 (Massachusetts Avenue between 48th and 49th Streets, N.W.). Counsel stated that the purpose of the closing was to facilitate the merger of Lot 7 with the other four lots, in order to permit construction of a larger building on Lots 2, 3, 4, and 5 than the District of Columbia Zoning regulations otherwise would permit. This could be accomplished, in effect, by "borrowing" additional FAR from Lot 7 for use on the other lots.

In accordance with the Street Readjustment Act, D.C.Code 1973, § 7-401, the application was referred to NCPC for its recommendation. The preliminary plans submitted by Kogod & Burka's architect to the NCPC Transportation Committee indicated that the new building would have a floor area of 95,822 square feet. The existing C-2-A zoning would permit only 75,386 square feet of floor area in a structure built on Lots 2, 3, 4, and 5; thus, the proposed alley closing was intended at the time to facilitate, in effect, the transfer of 20,436 square feet from Lot 7 (or approximately 15% of the total floor area available from Lot 7). On March 1, 1973, NCPC, acting on a favorable committee report, recommended approval to the District of Columbia Council.

After a public hearing on March 26, 1973, the Council adopted a resolution on April 17 ordering that the requested portion of the alley be closed, subject to a deed of easement for vehicular and pedestrian access. Thereafter, the Council published notice of the closing for 14 consecutive days, stating that it would become effective on May 21, 1973 "if no objection in writing is made by any party interested prior to that date." The appellant organizations filed letters of objection. The Council did not rescind. On May 21, 1973, the Surveyor recorded the plat reflecting the transfer of the closed portion of the alley to the adjoining property owners, Kogod & Burka Enterprises, Inc. See Carr v. District of Columbia, 312 F.Supp. 283 (D.C.D.C. 1970), aff'd without opinion, (D.C.Cir., No. 24,406, Sept. 28, 1971). As a result of amendments to the zoning regulations adopted by the Zoning Commission on May 21, 1973, effective May 29, 1973, the closed portion of the alley received the same (C-2-A) zoning as the contiguous property, without the necessity of a public hearing.³

Three years later, on August 4, 1976, David and Fred Burka, who by then owned the property, requested the Surveyor to combine Lots 2, 3, 4, 5, and 7 into a single lot. See D.C.Code 1973, § 1-618.⁴ On September 28, 1976, the Surveyor combined them into Lot 9. Meanwhile, on September 22, 1976, the Burkas had filed with the Department of Economic Development an application for a building permit for a structure with a floor area of 194,420 square feet — a structure consistent with C-2-A zoning of the new lot but over twice as large as the one reflected in the preliminary plans at the time of the 1973 alley closing. On December 30, 1976, the Department issued the requested permit.⁵

On November 24, 1976, appellants filed a Complaint for Injunction and Declaratory Judgment to invalidate the alley closing and prevent the planned structure, as well as a Motion for Preliminary Injunction to enjoin issuance of the building permit and construction pending resolution of the suit. After the parties had filed motions for summary judgment (and/or to dismiss), the court consolidated the application for preliminary injunction with the motions, see Super.Ct.Civ.R. 65(a)(2), and set them for hearing on April 15, 1977.

In a Memorandum Opinion of June 23, 1977, Judge Ugast ruled, first, that although the statute of limitations, D.C.Code 1973, § 12-301, was inapplicable in light of the equitable nature of the relief sought, appellants nevertheless were barred by laches from pursuing the two arguments based solely on the alleged illegality of the 1973 alley closing — specifically, the assertions that the alley closing was not accomplished in accordance with the Street Readjustment Act, and that the closing should be declared void because of the NCPC Transportation Committee Chairman's conflict of interest.⁶ Judge Ugast then rejected appellants' additional claims that the alley closing should be voided because it had been premised on construction of a 95,822 square foot building, that the Burkas' plans unlawfully would circumvent the zoning process, and that the project would violate the Comprehensive Plan. On July 1, 1977, in accordance with his opinion, Judge Ugast issued the Order and Judgment underlying this appeal.

II.

We consider, first, Judge Ugast's ruling that laches barred appellants' 1976 challenge to the closing of the alley in 1973. Laches is the principle that "equity will not aid a plaintiff whose unexcused delay, if the suit were allowed, would be prejudicial to the defendant." Russell v. Todd, 309 U.S. 280, 287, 60 S.Ct. 527, 531, 84 L.Ed. 754 (1940). It was developed to promote diligence and accordingly to prevent the enforcement of stale claims. Powell v. Zuckert, 125 U.S.App.D.C. 55, 57, 366 F.2d 634, 636 (1966); see Brundage v. United States, 504 F.2d 1382, 1384 (Ct.Cl. 1974), cert. denied, 421 U.S. 998, 95 S.Ct. 2395, 44 L.Ed.2d 665 (1975). Laches will not provide a valid defense, however, unless two tests are met: the defendant has been prejudiced by delay and that delay was unreasonable. See Wieck v. District of Columbia Board of Zoning Adjustment, D.C.App., 383 A.2d 7, 11 (1978); Amidon v. Amidon, D.C.App., 280 A.2d 82, 84 (1971); Duncan v. Summerfield, 102 U.S.App.D.C. 185, 186, 251 F.2d 896, 897 (1957). In the absence of an analogous statute of limitations, the party asserting the defense has the burden of establishing both elements. See Kosty v. Lewis, 115 U.S.App.D.C. 343, 349 n. 8, 319 F.2d 744, 750 n. 8 (1963), cert. denied, 375 U.S. 964, 84 S.Ct. 482, 11 L.Ed.2d 414 (1964).⁷

As the parties' supplemental briefs indicate, determining the appropriate standard of review of a trial court ruling as to laches presents a complex question — one with no consistent pattern of answers. Some courts have held that laches essentially is a question of fact, limiting appellate review to the "clearly erroneous" standard of Super.Ct. Civ.R. 52.⁸ Other courts have perceived laches as a mixed question of fact and law,⁹ or as a conclusion of law,¹⁰ permitting much freer, sometimes de novo, appellate review.

We conclude that the determination is a mixed question of fact and law in this sense: answers to the factual questions bearing on prejudice to the defendant from delay and on...