Hyman v. Coe

• Decision Date: 29 October 1956
• Docket Number: Civ. A. No. 2075-49.
• Citation: 146 F. Supp. 24
• Parties: George HYMAN et al., Plaintiffs, v. Theodore I. COE et al., Defendants.
• Court: U.S. District Court — District of Columbia

146 F. Supp. 24

George HYMAN et al., Plaintiffs, v. Theodore I. COE et al., Defendants.

Civ. A. No. 2075-49.

United States District Court District of Columbia.

October 29, 1956.

James C. Wilkes, Norman M. Glasgow, Washington, D. C., for plaintiffs.

Vernon E. West, Corp. Counsel for the District of Columbia, Milton D. Korman, J. Hampton Baumgartner, Jr., Asst. Corp. Counsel for the District of Columbia, Washington, D. C., for defendants.

CURRAN, District Judge.

Plaintiffs are owners of an apartment building located on the west side of Sixteenth Street, N.W., between K and L Streets, directly opposite the main entrance to the Statler Hotel, in an area zoned Residential 90' "D." The premises are known as 1016 Sixteenth Street, N. W. They desire to convert the apartment building to an office building. Since the property is located in the aforementioned area this conversion cannot be accomplished unless the defendants, members of the Board of Zoning Adjustment, grant an exception for this purpose.

Three appeals for such exception, which the plaintiffs had filed with the Board, were denied in 1947, 1948 and 1949. On May 11, 1949 plaintiffs originated this action in this Court, seeking a mandatory injunction. This matter was heard by Judge Morris who, on January 25, 1952, filed a memorandum opinion, D.C., 102 F.Supp. 254. On May 2, 1952 Judge Morris signed an order in which he determined: "the order of the Board of Zoning Adjustment complained of is invalid * * * and the same is hereby vacated and set aside and the said Board of Zoning Adjustment is hereby directed to reopen said proceedings * * *"

Thereafter the defendants appealed to the United States Court of Appeals for the District of Columbia Circuit and the plaintiffs filed a cross appeal. On April 8, 1954 the Court of Appeals handed down the following order:

"Whereas it appears from a memorandum filed April 6, 1954, in these appeals by George Hyman, et al., appellees in No. 11,476 and appellants in No. 11,477, that the Board of Zoning Adjustment, on April 2, 1954, announced its decision in four appeals, each involving the use or erection of an office building on 16th Street, Northwest, between H and M Streets, one to convert to office use an existing building at 1010 16th Street, one to erect a new office building at 821 16th Street, one to add a rear addition to an existing office building at 1108 16th Street, and one to erect a new office building at 1126 16th Street; and

"Whereas the granting of these four exceptions to the existing zoning regulations and maps, together with the exceptions theretofore granted by the Board, may have changed the present character of the neighborhood and its future development so that the use of the property here involved as an office building may no longer adversely affect such character and development;

"It is Ordered that these cases be remanded to the District Court with instructions to enter an order vacating the order of the Board of Zoning Adjustment heretofore entered and complained of and directing the Board to reopen the proceedings and reconsider the application in the light of the exceptions to the zoning regulations and maps already granted by it; and

"For these purposes of remand the judgment of the District Court is hereby vacated."

Pursuant to the order of the District Court, the Board of Zoning Adjustment, on April 21, 1954, and again on January 19, 1955, heard further testimony in the matter of this appeal, and on April 19, 1955 issued its order again denying plaintiffs' application for a special exception.

On January 23, 1956 plaintiffs filed in this Court a supplemental complaint for injunctive relief. On June 22, 1956 defendants filed a motion for summary judgment and on August 22, 1956 plaintiffs filed their motion for summary judgment. It is these motions for summary judgment that are now before this Court. The pleadings, admissions and affidavits on file show there is no genuine issue of any material fact.

Plaintiffs' appeal, along with others, has been considered by the Board of Zoning Adjustment under the authority granted to it by the Zoning Act of 1938, as amended, D.C.Code 1951, § 5-413 et seq., to consider appeals brought under Section XXIII, Part 2, Paragraph 29 of the Zoning Regulations of the District of Columbia. This regulation is as follows:

"Part 2. — Powers Relative to Exceptions and Special Questions.

"Upon appeals the Board of Zoning Adjustment is hereby empowered to grant requests for the following special exceptions, when, in the judgment of the Board, such exceptions shall be in harmony with the general purpose and intent of the Zoning regulations and maps and will not tend to affect adversely the use of neighboring property in accordance with the zoning regulations and maps."

* * * * * *

"29. Permit in the Residential, 90 foot `D' Area District on Streets not less than 160 feet in width, office buildings and banks, provided: (a) No articles of commerce are sold on the premises, (b) there be no projection made beyond the front building line and no display or show windows used, (c) there be no neon or gas tube signs or displays used, and no permitted sign extending beyond the front wall of the building, and (d) the use will not affect adversely the present character and future development of the neighborhood, and will not result in dangerous or otherwise objectionable traffic conditions. (April 22, 1947)."

Pursuant to an Act of Congress zoning was first adopted in the District of Columbia in 1920, D.C.Code 1929, Tit. 25, § 521 et seq. That Act provided for the establishment of a Zoning Commission empowered to adopt zoning maps and promulgate zoning regulations. The Commission was authorized to fix the zoning boundaries and to specify and limit the specific uses that could locate within the fixed zoning boundaries. The Commission could change the zoning boundaries as well as the uses located within the fixed boundaries, but there was little flexibility under the system to deal with the individual problems of the property owners. Spot zoning proved undesirable. So that more flexibility could be had under the zoning regulations and maps, and in order to establish machinery to deal with specific properties, Congress passed a new Zoning Act in 1938. Under that Act the Zoning Commission retained the power already vested in it to establish zoning boundaries and zoning regulations. A Board of Zoning Adjustment was established which the Commission could empower to make special exceptions to the provisions of the zoning regulations "subject to appropriate principles, standards, rules, conditions, and safeguards set forth in the regulations" and to hear and decide requests for special exceptions in accordance with the provisions of the zoning regulations, D.C.Code, § 5-420. A special exception is part of the zoning plan and the instant case involves a special exception.

The decisions of a zoning adjustment board are discretionary and should not be reversed by the Courts unless clearly arbitrary and unreasonable. Leventhal v. District of Columbia, 69 App. D.C. 229, 100 F.2d 94; Lewis v. District of Columbia, 89 U.S.App.D.C. 72, 190 F. 2d 25; Selden v. Capitol Hill Southeast Citizens Association, 95 U.S.App.D.C. 62, 219 F.2d 33.

But where such a Board's decision, upon review, is clearly unreasonable and arbitrary it will be set aside. Robinson v. Town Council of Narragansett, 60 R.I. 422, 199 A. 308, 314. The Court is not bound by an arbitrary or capricious action of the Board or where there has been a manifest abuse of discretion. Berard v. Board of Adjustment of City of St. Louis, Mo.App., 138 S.W.2d 731, 734.

"A zoning board of appeals acts in a quasi judicial capacity. It is an appellate tribunal, and its decisions are reached only after the presentation of evidence deemed to warrant such action." Burr v. Rago, 120 Conn. 287, 180 A. 444, 446; Coleman v. Board of Appeals, 281 Mass. 112, 183 N.E. 166. Such a board is "required to act judicially on facts lawfully ascertained." Robinson v. Town Council of Narragansett, supra 60 R.I. 422, 199 A. 314.

It is not the intent of Section XXIII, Part 2 of the Zoning Regulations that an appeal for an exception must be granted if certain requirements are met. An "exception" in a zoning ordinance is one allowable where facts and conditions detailed in the ordinance, as those upon which an exception may be permitted, are found to exist. Application of Devereux Foundation, Inc., 351 Pa. 478, 41 A.2d 744, appeal dismissed Devereux Foundation v. Lea, 326 U.S. 686, 66 S.Ct. 89, 90 L.Ed. 403. The Board is to decide whether or not the exception sought meets the requirements of the regulation, but this decision must result from an exercise of sound discretion, that is, legal discretion, and must not be arbitrary, capricious or unreasonable. Robinson v. Town Council of Narragansett, and Berard v. Board of Adjustment of City of St. Louis, supra. As Judge Morris so aptly said in his opinion of January 25, 1952:

"* * * every one upon whom any organ of government acts has a right to have that agency make its decision upon evidence, which is open to question and correction, and the exercise of discretion and the consequent judgment of the agency must be controlled by the same principles that control such agency's action in its dealings with others." Hyman v. Coe, 102 F.Supp. 254, at page 257.

Reading the Preamble of Part 2 of Section XXIII, together with Paragraph 29, it is clear that the limitations on the use of the property in the neighborhood for office building purposes are that such use will not render less desirable other property in the neighborhood used for residential purposes.

Paragraph 29 was adopted by the Zoning Commission on April 22, 1947. (When originally adopted it was paragraph 30. It has since been re-numbered). Pursuant to its provisions the owners of certain parcels of land on Sixteenth Street between H and M Streets, N.W.,...