District of Columbia v. Cahill, 5167.

• Decision Date: 30 November 1931
• Docket Number: No. 5167.,5167.
• Citation: 60 App. DC 342,54 F.2d 453
• Parties: DISTRICT OF COLUMBIA et al. v. CAHILL.
• Court: U.S. Court of Appeals — District of Columbia Circuit

60 App. DC 342, 54 F.2d 453 (1931)

DISTRICT OF COLUMBIA et al. v. CAHILL.

No. 5167.

Court of Appeals of District of Columbia.

Argued October 8, 1931.

Decided November 30, 1931.

W. W. Bride and F. H. Stephens, both of Washington, D. C., for appellants.

Daniel W. O'Donoghue and Frederick Stohlman, both of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

MARTIN, Chief Justice.

An appeal from a decree permanently enjoining the District of Columbia from canceling or revoking a certain certificate issued to appellee by the inspector of buildings of the District of Columbia permitting the use and occupancy as a garage of the building known as 1615 and 1617 O Street Northwest, in the city of Washington, D. C.

The building in question is a two-story brick structure extending from O street to a public alley in the rear, with double door entrances at front and rear; the first floor designed for use for storage and similar purposes, and the second floor for living apartments. The building was erected in 1911, and is in a residence district of the city. The record does not disclose that a permit was ever issued to the owner for the use of any part of the premises as a garage; nevertheless it appears that from 1911 and continuously thereafter the first floor of the building was openly and publicly used by successive tenants for storage and garage purposes. Nor does it appear that any objection was ever made either by the District of Columbia or any resident thereof against the use of the first floor for such purposes.

In March, 1926, the appellee purchased the property, with the purpose of improving the building and renting the first floor as a garage. He applied to the inspector of buildings of the District of Columbia for a permit to fireproof and repair the premises, and also for a certificate of occupancy of the first floor for use as a garage. The inspector of buildings after making an investigation decided that although the building was located within a residence district, it nevertheless had been put to lawful use as a garage prior to and at the time of the enactment of the Zoning Act of March 1, 1920, and that such use might, by the express provision of section 6 of the act, be continued, although not conformable with the present zoning regulations. 41 Stat. 500, § 6. Accordingly on June 8, 1926, a permit to use the first floor of the building as a garage was issued by the inspector of buildings to appellee, and at the same time the inspector approved of the plans submitted to him by appellee upon blue prints for the repair and improvement of the building. Appellee thereupon expended approximately $6,000 in the execution of such repairs and improvements, designed for the use of the first floor as a garage, but without structural alteration of the building. This expenditure added little or nothing to the value of the premises for any other than garage purposes. Appellee also expended about $135, in providing a drainage outlet for the garage, upon an order of the inspector of plumbing of the District of Columbia. These repairs were publicly carried on, in full view of the neighborhood, and no objection was then made concerning them on behalf of the District or any of its residents.

Appellee thereupon leased the first floor of the building as a garage to tenants for a 5-year term, and the inspector of buildings issued to them occupancy permits for such use.

Afterwards, to wit on January 31, 1927, the board of commissioners of the District of Columbia, acting upon a protest filed on December 31, 1926, by adjacent property owners, and upon a hearing and report of the inspector of buildings and the assistant corporation counsel, notified appellee that the certificates of occupancy theretofore issued to appellee and his lessees were issued under "a mistake of fact," and should be canceled and revoked, inasmuch as it had been found that the use of the lower floor of the building as a garage prior...