Kenmore Joint Venture v. District of Columbia

• Decision Date: 23 August 1978
• Docket Number: No. 12544.,12544.
• Citation: 391 A.2d 269
• Parties: KENMORE JOINT VENTURE, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent, The Upper Connecticut Avenue Betterment Association et al., Intervenors.
• Court: D.C. Court of Appeals

391 A.2d 269

KENMORE JOINT VENTURE, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent, The Upper Connecticut Avenue Betterment Association et al., Intervenors.

No. 12544.

District of Columbia Court of Appeals.

Argued April 13, 1978.

Decided August 23, 1978.

Norman M. Glasgow, Washington, D. C., with whom Whayne S. Quin and John F. McCabe, Jr., Washington, D. C., were on 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 brief was filed, and Richard W. Barton, Deputy Corp. Counsel, Washington, D. C., were on brief, for respondent.

B. Donovan Picard, Washington, D. C., entered an appearance for intervenors.

Before GALLAGHER and NEBEKER, Associate Judges, and UGAST, Associate Judge, Superior Court of the District of Columbia.^*

UGAST, Associate Judge:

This is a petition for review of a decision of the District of Columbia Board of Zoning Adjustment (BZA) denying the application of petitioner Kenmore Joint Venture for a special exception pursuant to § 8207.2 of the Zoning Regulations.¹ In its application, petitioner sought modification of an earlier Order of the BZA in 1964 in which it had granted the owners of the property in question a special exception to use adjoining lots zoned for single-family detached dwellings for accessory off-street parking² The application was specifically directed at the modification of a covenant entered into with the District of Columbia pursuant to that Order and as a condition for approving the special exception.

Two issues are presented on this petition: (1) whether this court has jurisdiction to review the decision of the BZA; and (2) whether the interpretation by the BZA of its previous Order and the covenant entered into pursuant thereto was clearly erroneous.

Petitioner is the owner of the Kenmore Apartments and some unimproved property adjoining the site of the building. The apartment house, built prior to May, 1958, is located in the square-block area bounded generally by Connecticut Avenue on the west, Chevy Chase Parkway on the east, Legation Street on the north, and the residences lining Military Road on the south. The portion of the block fronting Connecticut Avenue is zoned R-5-C (medium high density apartment houses), while the rear or east portion of the block is zoned R-1-B (single-family detached dwellings). The Kenmore faces Connecticut Avenue and is situated on the northwest corner of the block on the land zoned R-5-C. Since May 12, 1958, the Zoning Regulations have required that newly constructed apartment houses provide on the same lot as the building a minimum of one 9 x 19 foot parking space for each three dwelling units. See Zoning Regulations, §§ 7201, 7201.1, 7204.1, and 7205.1. The Kenmore has 372 dwelling units and thus, had it been built after the effective date of these Regulations, would have been obligated to provide a minimum of 124 parking spaces. While the Kenmore did provide approximately 87 parking spaces for tenants and their guests, it did not meet the off-street parking requirements of the 1958 Zoning Regulations as to the number or size of spaces.³

In 1960, Kenmore Apartments Inc., under different ownership, applied to the BZA for a special exception and a variance to permit it to use nine lots which it owned located to the east (rear) of the apartment building as accessory off-street parking to serve the tenants.⁴ These lots were zoned for singlefamily detached dwellings.⁵ The BZA granted the application for a two-year period, at the end of which time it stated that it would "give consideration to making the parking permanent as part of the required parking for the Kenmore Apartments upon the filing of a new appeal."⁶

Three years later, the owners of the Kenmore asked the BZA to approve the accessory off-street parking on the same lots on a permanent basis. In Order No. 7298, the BZA granted the appeal to continue the use of the lots for parking purposes, on the condition that the owners agree to become a party to a covenant with the District of Columbia agreeing to the continued use of this property for off-street parking. For reasons not disclosed in the record, no covenant was ever entered into with the District pursuant to this Order, and apparently the Order never took effect.

Subsequently, the owners instituted a second appeal with the BZA again requesting permanent approval to use the nine lots for accessory off-street parking purposes. On July 21, 1964, the BZA issued Order No. 7792 granting the owners' appeal, again subject to the condition that they enter into a covenant with the District of Columbia. In accordance with this condition, the owners of the Kenmore, on August 5, 1964, did enter into a covenant with the District concerning, for purposes relevant to this appeal, the future use of the property for parking which they were voluntarily obligating themselves to provide as a result of their application to the BZA.

The present controversy arose when petitioner, in January, 1976, requested the District of Columbia Zoning Commission to rezone several of the lots on which some of the accessory off-street parking spaces are located. Petitioner desired to have the lots rezoned so that it could build townhouses.⁷ It is apparent that petitioner was motivated in attempting to obtain the rezoning of these lots by the fact that many of the parking spaces which had been provided on these lots were not being used, and in fact had been blocked-off for several years.⁸

On April 8, 1976, the Zoning Commission dismissed petitioner's application for a map amendment to permit it to build the townhouses. The basis of the dismissal, which was without prejudice, was the provisions of the covenant entered into by petitioner with the District pursuant to Order No. 7792. Prior to taking such action, however, the Director of the Municipal Planning Office, on behalf of the Zoning Commission, had requested an opinion of the Corporation Counsel as to the legal effect of the covenant on the Zoning Commission's authority to rezone the lots and whether the petitioner had to seek permission of the BZA to release the covenant before proceeding with its application for a map amendment.

On the basis of the Corporation Counsel's suggestion,⁹ petitioner filed an application with the BZA in July, 1976, to obtain modification of its previous Order in No. 7792. Petitioner's application was in the nature of a request for BZA approval of a proposed parking plan that would locate the parking spaces required under the Zoning Regulations solely on lots 23 and 24 and on portions of three other lots, thereby permitting the utilization of the remaining area on which accessory off-street parking is not required under the Regulations for the townhouses. Since approval of the application required, in the opinion of the petitioner, the granting of a special exception, it filed the application pursuant to § 8207.2. The BZA never questioned the procedure which petitioner followed in seeking to obtain its desired result.

The record itself reflects petitioner's own uncertainty as to what relief was needed in order to obtain approval of the proposed parking plan. In its application to the BZA, petitioner sought modification of Order No. 7792, and the statement accompanying its application requested a modification of that Order. In the same statement, however, petitioner asserted that the covenant entered into pursuant to the Order was inartfully drawn and did not reflect the intention of the owners of the Kenmore and the BZA's resulting Order in Appeal No. 7792. Thus, petitioner additionally sought a modification of the covenant.¹⁰ Petitioner's counsel further argued before the BZA that the manner in which the covenant was drafted obligated petitioner to provide more parking spaces than the Zoning Regulations required. He specifically asserted that petitioner was not seeking a modification of the Order itself, but wanted the BZA to reaffirm the conditions imposed therein. Petitioner, he contended, merely wanted a change in the covenant.

In its decision, the BZA concluded that, "while the language of the covenant differs somewhat from the language of the Order, the covenant is not more restrictive than the Order in any way material to this case. In sum the covenant carries out the intent of the Board." In its brief to this court, petitioner concurred in this conclusion, stating that the covenant was not more restrictive than the conditions imposed in Order No. 7792. Although we have some difficulty following the change in positions taken by petitioner at various stages of the proceedings, it is clear that, in order to obtain the rezoning which would permit the townhouses on the lots in question to be constructed, petitioner needed at a minimum a clarification of the meaning of the conditions in the Order and the language in the covenant and, possibly, a modification of both.¹¹

The decision of the BZA not to grant modification of the covenant was necessarily based upon an interpretation of its own Order No. 7792 and the conditions therein. The BZA interpreted condition (a) in Order No. 7792 to require continuation of the exclusive use of the property for accessory off-street parking, and concluded that the covenant carried out the intent of the condition in that fashion. The BZA declined to modify the condition and denied the application for a special exception, noting that the exclusive use for accessory parking should be retained in any event to protect the surrounding neighborhood from potential additional on-street parking in the future. Therefore, in light of the decision of the BZA, the meaning of the condition, as well as the meaning of the language of the covenant, is before the court.

A Motion for Reconsideration was timely filed with the BZA on September 1, 1977. While that motion was still pending, petitioner filed a ...