Capitol Hill Restoration v. D.C. Bd. of Zon., 13111.

• Decision Date: 08 February 1979
• Docket Number: No. 13111.,13111.
• Citation: 398 A.2d 13
• Parties: CAPITOL HILL RESTORATION SOCIETY, INC., Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent, Claudia Moore, Intervenor.
• Court: D.C. Court of Appeals

398 A.2d 13

CAPITOL HILL RESTORATION SOCIETY, INC., Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent, Claudia Moore, Intervenor.

No. 13111.

District of Columbia Court of Appeals.

Argued September 12, 1978.

Decided February 8, 1979.

Ellen Seidman, Washington, D.C., with whom Richard Wolf was on the brief, for petitioner.

Leo N. Gorman, Asst. Corp. Counsel, Washington, D.C., with whom John R. Risher, Jr., Corp. Counsel, Washington, D.C., at the time the case was briefed, and Richard W. Barton, Deputy Corp. Counsel, Washington, D.C., were on the brief, for respondent.

Claudia Moore, pro se.

Before NEBEKER, YEAGLEY and FERREN, Associate Judges.

NEBEKER, Associate Judge:

Petitioner, Capitol Hill Restoration Society, Inc. (Capitol Hill) requests this court to reverse a decision of the District of Columbia Board of Zoning Adjustment (BZA or Board) granting a variance to the intervenor, Claudia Moore. The variance was requested by intervenor to permit conversion of a row house containing three apartments into one with four apartments. The variance is from the R-4 Zoning Regulations which require a minimum of 900 square feet of lot area for each dwelling unit thereon. The BZA granted the variance and Capitol Hill filed this petition. We hold that the BZA decision improperly utilized the intervenor's personal circumstances, rather than the unique circumstances of the property, as a basis for granting the variance. We therefore reverse the decision.

The property is a three-story row house located in the Capitol Hill area of the Northeast section of the District of Columbia. It is typical of the many row houses in the neighborhood. The district is zoned R-4 meaning that without a variance the most dense residential use permitted is a two-family dwelling, or a "flat." Conversion of an existing row house to a multiple dwelling of three or more units in an R-4 zoning district is permitted, where, inter alia, 900 square feet of lot area is provided for each dwelling unit. We are told that with the lot measuring 1,711 square feet the property in question could be used as a single-family dwelling or a two-family dwelling, absent a variance despite the 89 square feet deficiency.

In 1964, a prior owner of the property obtained a variance to permit conversion of the improvement from a single-family dwelling to a three-unit apartment building. The property was then sold, and the next owner renovated the three floors and made a fourth, efficiency apartment (for which no variance was granted) for himself in the small basement room. The owner lived in the basement efficiency and rented the other three floors as apartments.

Intervenor, Claudia Moore, rented one of the units as a tenant from 1967 to 1969. During that time period and presumably until 1973, all three apartments were rented to tenants by the owner who lived in the basement efficiency. In 1973, Moore purchased the property from the prior owner after having been shown a housing business license by the owner. She did not ask to see, nor was she shown, a certificate of occupancy. It is clear from the record that at the time the property was sold by the prior owner, the efficiency apartment was not permitted under the 1964 variance.

Not long after she had moved into the basement efficiency of her newly purchased property, Moore was informed by a neighbor that the row house legally could have only three units instead of four. Moore continued to live in the basement efficiency and rent the other three units until 1977 when, after verifying that the fourth unit was illegal, she applied for a Certificate of Occupancy, which was denied. By this time the prior owner had moved to Australia. Moore then moved out of the efficiency and applied to the BZA for a variance.

On November 16, 1977, a hearing was held before the BZA on the application. Moore introduced evidence to show that due to "grandfather" rights, old variances or illegal use, many of the surrounding row houses have three or four apartment units. She also introduced a petition indicating that the neighbors of the area either approved or had no objection to the variance. In her letter to the BZA, she also stated that she had budgeted her investment in the property on the premise that she would rent three of the units and live in the fourth herself. Her counsel made the same argument at the hearing to show the hardship she faced due to the zoning requirements.

Capitol Hill, opposing intervenor's application, was of the view that there was not sufficient legal basis upon which the variance could be granted. In particular, Capitol Hill argued, inter alia, (1) that no unique circumstances or conditions of the property existed which would result in either practical difficulties or extraordinary hardship if the variance was not granted; and (2) that the variance requested was a considerable one since the size of the lot (1,711 sq. ft.) was less than half the size of the lot required for four units (viz 3,600 sq. ft.). The Municipal Planning Office opposed the application while the Advisory Neighborhood Commission 6B took no position on the matter.

The BZA granted the variance despite the contrary arguments:

The subject property reflects a history of a four unit occupancy since 1967 to date. There is no evidence that such occupancy created any substantial detriment to the public good. Rather the support of neighboring residents reflects the opposite. The Board in applying its discretion, concluded that the...