Larrabee v. Bell

• Decision Date: 04 January 1926
• Docket Number: No. 4270.,4270.
• Citation: 56 App. DC 121,10 F.2d 986
• Parties: LARRABEE et al. v. BELL et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

56 App. DC 121, 10 F.2d 986 (1926)

LARRABEE et al. v. BELL et al.

No. 4270.

Court of Appeals of District of Columbia.

Submitted December 9, 1925.

Decided January 4, 1926.

C. E. Emig, Arthur Hellen, R. R. Perry, and Chauncey Hackett, all of Washington, D. C., for appellants.

F. H. Stephens, J. C. Wilkes, R. G. Donaldson, Hayden Johnson, C. L. Frailey, and V. E. West, all of Washington, D. C., for appellees.

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

VAN ORSDEL, Associate Justice.

This case involves the orders of the zoning commission of the District of Columbia, fixing the height of an apartment house, to be erected at the corner of Massachusetts avenue and Twenty-First street, in the city of Washington.

On August 30, 1920, the zoning commission made an order placing the land in square 67, the property here in question, fronting on Massachusetts avenue, in the 85-foot height district, thus limiting the height of buildings to be erected on said land to not exceeding 85 feet in height. By the same order the land in the same square, fronting on Twenty-First street, was placed in the 55-foot height district.

On September 9, 1922, one J. M. Donn, an architect, having in charge the designing of the apartment house in question, made application to the zoning commission to extend the 85-foot height district to embrace the lots facing on Twenty-First street, in order that the land required for the apartment should all be brought within the 85-foot zone. Pursuant to Donn's request, public notice was given that a "public hearing would be held at the board room of the District Building, at 10 a. m., October 19, 1922, for the purpose of considering" the proposed changes. A hearing was had, and no one appeared in opposition to the proposed change. Accordingly, on the following day, the zoning commission authorized the change to be made.

A further order, after public notice and hearing, was made on November 22, 1923, amending the zoning regulations to increase the 55-foot height district to 60 feet, and the 85-foot district to 90 feet. This, of course, operated to raise the permissible height of the building here in question to 90 feet. Subsequently, on February 20, 1924, the owners of property in the vicinity of Twenty-First street and Massachusetts avenue petitioned the zoning commission to rezone Massachusetts avenue, between Dupont Circle and Sheridan Circle, and place it in the 60-foot district. After public hearing, the petition, on March 21, 1924, was granted. On March 4, 1924, prior to the order rezoning this district, the appellee, defendant below, 2100 Massachusetts Avenue, Incorporated, made application to the inspector of buildings, for a permit to erect the building here in question, and on March 10th it made application to the engineer department of the District for a permit to excavate for the proposed building. Plans were filed in the office of the inspector of buildings on March 15, 1924. A permit was duly issued to defendant corporation on March 22, 1924.

The present action was brought to restrain the defendant corporation from erecting said apartment house to a height in excess of 55 feet. From a decree denying the injunction, except as to a small portion of the land, not here in controversy, this appeal was taken.

Section 4 of the Zoning Act of March 1, 1920 (41 Stat. 500), provides: "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 district 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 3 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...