Garrity v. District of Columbia

• Decision Date: 31 August 1936
• Docket Number: No. 6365.,6365.
• Citation: 66 App. DC 256,86 F.2d 207
• Parties: GARRITY v. DISTRICT OF COLUMBIA et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

66 App. DC 256, 86 F.2d 207 (1936)

GARRITY v. DISTRICT OF COLUMBIA et al.

No. 6365.

United States Court of Appeals for the District of Columbia.

Decided August 31, 1936.

Rehearing Denied October 26, 1936.

William C. Sullivan, of Washington, D. C., for appellant.

Leslie C. Garnett, U. S. Atty., John W. Fihelly, Asst. U. S. Atty., E. Barrett Prettyman, Corp. Counsel, and Vernon E. West, Asst. Corp. Counsel, all of Washington, D. C., for appellees.

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

STEPHENS, Associate Justice.

This is an appeal from a decree of the Supreme Court of the District of Columbia dismissing a bill of complaint filed by the appellant, plaintiff below, against the appellees, defendants below — the District of Columbia, the Zoning Commission of the District of Columbia, the Commissioners of the District of Columbia and the Inspector of Buildings of the District of Columbia. The relief sought was: A mandatory injunction compelling a change of zoning of the appellant's property from a zoning district in which erection of apartment houses is forbidden, to one in which that is not forbidden; a mandatory injunction compelling the Building Inspector and his successors in office to issue permits for building operations for apartment houses upon the appellant's land as if it had never been zoned in a district forbidding them; and a perpetual injunction restraining enforcement against the appellant's land of zoning regulations forbidding apartment houses.

By the Act of March 1, 1920, 41 Stat. 500 (D.C.Code 1929, T. 25, § 521 et seq.), Congress passed "An Act To regulate the height, area, and use of buildings in the District of Columbia and to create a Zoning Commission, and for other purposes." The provisions thereof pertinent to this case are:

"Sec. 2. That within six months after the passage of this Act and after public notice and hearing as hereinafter provided, the said commission shall divide the District of Columbia into certain districts, to be known, respectively, as height, area, and use districts, and shall adopt regulations specifying the height and area of buildings thereafter to be erected or altered therein and the purposes for which buildings and premises therein may be used: Provided, That such regulations may differ in the various districts: Provided further, That the permissible height of buildings in any district shall not exceed the maximum height of building now authorized upon any street in any part of that district by the Act of Congress approved June 1, 1910, and amendments thereto, regulating the height of buildings in the District of Columbia: And provided further, That no such districts shall be established, nor shall any regulations therefor be adopted, nor shall the height, area, or use of buildings to be erected therein be prescribed until said commission has afforded persons interested an opportunity to be heard at a public hearing as hereinafter provided: And provided further, That in residence districts the usual accessories of a residence located on the same lot including the office of a physician, dentist, or other person, and including a private garage containing space for not more than four automobiles, shall not be prohibited.

"Sec. 4. That after the public hearings herein provided for shall have been concluded, said commission shall definitely determine the number and boundaries of the districts which it is hereby authorized and directed to establish, and shall specify the height and area of the buildings which may thereafter be erected therein, and shall prescribe the purposes for which such buildings thereafter erected may or may not be used. Said districts so established shall not be changed except on order of said commission after public hearing. Said commission may initiate such changes, or they may be initiated upon the petition of the owners affected. Where the proposed change is to add a contiguous area to a use, height, or area district, the owners of at least 50 per centum of the street frontage proposed to be changed must join in the petition: Provided, That if the frontage proposed to be changed is not a contiguous area, the owners of at least 50 per centum of a frontage within the area not less than three blocks in length must join in such petition before it may be considered by said commission. No such change shall be made, either by said commission on its own motion or upon such petition, except with the unanimous vote of said commission, if the owners of at least 20 per centum of the frontage proposed to be changed protest against such change.

"Sec. 5. That said commission is authorized and empowered to make such orders and adopt such regulations not inconsistent with law as may be necessary to accomplish the purposes and carry into effect the provisions of this Act. * * *

"Sec. 9. That buildings erected, altered, or raised, or converted in violation of any of the provisions of this Act or the orders and regulations made under the authority thereof are hereby declared to be common nuisances; and the owner or person in charge of or maintaining any such buildings, upon conviction on information filed in the police court of the District of Columbia by the corporation counsel or any of his assistants in the name of said District, and which court is hereby authorized to hear and determine such cases, shall be adjudged guilty of maintaining a common nuisance, and shall be punished by a fine of not more than $100 per day for each and every day such nuisance shall be permitted to continue, and shall be required by said court to abate such nuisance. The corporation counsel of the District of Columbia may maintain an action in the Supreme Court of the District of Columbia in the name of the District of Columbia to abate and perpetually enjoin such nuisance.

"Sec. 10. That the Commissioners of the District of Columbia shall enforce the provisions of this Act and the orders and regulations adopted by said Zoning Commission under the authority thereof, and nothing herein contained shall be construed to limit the authority of the Commissioners of the District of Columbia to make municipal regulations as heretofore: Provided, That such regulations are not inconsistent with the provisions of this law and the orders and regulations made thereunder. In interpreting and applying the provisions of this Act and of the orders and regulations made thereunder they shall be held to be the minimum requirements for the promotion of the public health, safety, comfort, convenience, and general welfare. This Act shall not abrogate or annul any easements, covenants, or other agreements between parties: Provided, however, That as to all future building construction or use of premises where this Act or any orders or regulations adopted under the authority thereof impose a greater restriction upon the use of buildings or premises or upon height of building, or requires larger open spaces than are imposed or required by existing law, regulations, or permits, or by such easements, covenants, or agreements, the provisions of this Act and of the orders and regulations made thereunder shall control." 41 Stat. 500-502.

Pursuant to the Act, the Zoning Commission (hereinafter referred to as the Commission) in August 1920 by regulations established height, area and use districts in the District of Columbia, with subdivisions in each. Specifically it divided the District of Columbia in respect of use districts into residential, first commercial, second commercial, and industrial use districts; in respect of height districts, into 40-foot, 50-foot, 85-foot, and 110-foot height districts; and in respect of area districts, into "A", "B", "C", and "D" area districts. Area districts are for the purpose of regulating the area of yards and courts and the percentage of lot which may be occupied by buildings.

The land in question in this case was first zoned in the residential use district, the 40-foot height district, and the "A" area district. The erection of apartment houses was not forbidden in any of the original zoning districts. But in June 1923, after hearings with respect thereto, the Commission by regulation defined a new district called the "`A' restricted-area district," as follows:

"In the `A' restricted area district the minimum dimensions of yards and courts and the maximum percentage of the occupancy shall be the same as for `A' area district, except that hereafter no building shall be erected or altered for use as an apartment house, nor shall any building or premises be used for this purpose."

There were subsequent amendments to this definition but they are not material in this case.

After the establishment of this new district the Commission considered at various hearings what properties should be included therein, and on October 26, 1923, it considered the propriety of transferring thereto certain properties including that later purchased by the appellant. Protest had been made, however, by the appellant's predecessor in interest and certain other property owners with respect to the inclusion of their lands in the "`A' restricted-area district," and the Commission determined to except them temporarily from an order of transfer so as to postpone court attack on the creation of an "`A' restricted-area district," and with the expectation that special hearings might later be had with respect to the propriety of their inclusion. Accordingly on October 31, 1923, the properties considered at the hearing of October 26 were ordered changed from their previous zoning to the "`A' restricted-area district," but not those whose owners had filed protests. On January 17, May 15, and June 19, 1924, hearings were held with respect to the propriety of including in the "`A' restricted-area district" these excepted properties. Finally, on June 24, 1924, at an executive hearing of the Commission, an order was made changing the...