Clouser v. Hot Shoppes, Inc.

• Decision Date: 12 May 1965
• Docket Number: No. 18920.,18920.
• Citation: 346 F.2d 834,120 US App. DC 353
• Parties: Robert O. CLOUSER, et al., Individually and as Members of the District of Columbia Board of Zoning Adjustment, Appellants, v. HOT SHOPPES, INC., a corporation, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

120 US App. DC 353, 346 F.2d 834 (1965)

Robert O. CLOUSER, et al., Individually and as Members of the District of Columbia Board of Zoning Adjustment, Appellants, v. HOT SHOPPES, INC., a corporation, Appellee.

No. 18920.

United States Court of Appeals District of Columbia Circuit.

Argued March 29, 1965.

Decided May 12, 1965.

Mr. David P. Sutton, Asst. Corp. Counsel for the District of Columbia, with whom Messrs. Chester H. Gray, Corp. Counsel, Milton D. Korman, Principal Asst. Corp. Counsel, and Hubert B. Pair, Asst. Corp. Counsel, were on the brief, for appellants.

Mr. John R. Hess, Asst. Corp. Counsel, also entered an appearance for appellants.

Mr. Frank H. Strickler, Washington, D. C., with whom Messrs. John J. Carmody, Jr., and Clifford Lawrence Wiser, Bethesda, Md., were on the brief, for appellee.

Before WILBUR K. MILLER, Senior Circuit Judge, and FAHY and DANAHER, Circuit Judges.

JUDGMENT

PER CURIAM.

This case came on to be heard on the record on appeal from the United States District Court for the District of Columbia and was argued by counsel; and the trial judge having determined that the administrative record as stipulated is insufficient for the achievement of finality and having accordingly directed a remand for further proceedings before the Board of Zoning Adjustment at which additional testimony and argument may be adduced, as from Judge Youngdahl's opinion will more fully appear,

Now, upon consideration of the foregoing and of the record before this court,

It is ORDERED and ADJUDGED by this court that the judgment of the District Court, 231 F.2d 825, substantially for the reasons set forth in its opinion, is affirmed.

It is further ORDERED by the court that appellee herein recover from appellant its taxable costs on this appeal, and have execution therefor.

FAHY, Circuit Judge (concurring in part and dissenting in part).

This is an appeal by the District of Columbia from a decision of the District Court remanding to the Board of Zoning Adjustment a case in which appellee, Hot Shoppes, Inc., was denied a building permit for certain proposed construction on property located at 3250 Pennsylvania Avenue, S. E., this City.

At the location referred to appellee operates a restaurant with table and counter, and also curb or drive-in services. When operations began in 1959 both services were conforming uses under the Zoning Regulations. But in 1961 the Regulations were amended to exclude from the area in which the premises are located any type of drive-in restaurant. The drive-in portion of appellee's services then became a nonconforming use and was allowed to continue only by virtue of D.C.Code § 5-419,

"provided no structural alteration, except such as may be required by law or regulation, or no enlargement is made or no new building is erected."

On the premises as originally constructed, and at present, is a storage area adjacent to the main building, bounded on two sides by an enclosure described as a basket-weave fence, without a roof. Appellee stores commissary carts in this area. The carts are used to transport food to the restaurant from Hot Shoppes' central commissary; the carts thus aid both the conforming and nonconforming uses of the property.

In July, 1962 officials of the Health Department directed appellee to store its commissary carts under cover. Appellee thereafter applied for a building permit which proposed to transform the fenced in area into a completely enclosed structure with a roof, matching the main building architecturally. The application was rejected after a hearing on the ground that the proposed construction was an "enlargement" which would extend the nonconforming use contrary to the Zoning Act and Regulations. Following an inspection of the property ex parte, the Board denied an appeal, concluding that "it is obvious that the equipment can be placed somewhere inside the...