Nathanson v. District of Columbia Bd. of Zon. Adjust.

Decision Date17 April 1972
Docket NumberNo. 5761.,5761.
PartiesSidney NATHANSON, Albert I. Nathanson, et al., Petitioners, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent.
CourtD.C. Court of Appeals

Whayne S. Quin, Washington, D. C., with whom Norman M. Glasgow, Washington, D. C., was on the brief, for petitioners.

Earl A. Gershenow, Asst. Corp. Counsel, with whom C. Francis Murphy, Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, were on the brief, for respondent. David P. Sutton, Asst. Corp. Counsel, also entered an appearance for respondent.

Before GALLAGHER, NEBEKER and YEAGLEY, Associate Judges.

GALLAGHER, Associate Judge:

This is a petition for review of an order of the Board of Zoning Adjustment (the Board) denying rescission of a condition attached to a special exception granted petitioners in 1966. The condition required construction of a 42-inch masonry wall on petitioners' premises which would prevent access to an abutting public alley behind the property.

In 1958, the owners of a 135 foot lot (7421 Georgia Avenue, N.W.) applied to the Board pursuant to Section 7514.12 of the Zoning Regulations for a special exception permitting the use of the rear 35 feet of the property zoned R-2 (one-family semi-detached dwellings) for parking and vehicular access to the front portion of the property zoned C-2 (Community Business Center) on which petitioners proposed to build a retail liquor store. The application for the special exception was granted and part of the 35 feet was subsequently dedicated as a public alley. The retail liquor store was constructed on the portion zoned C-2.

In January 1966, petitioners applied for another special exception for the construction of a storage facility for the store on part of the property zoned residential. On March 4, 1966, the Board granted the special exception and issued a preliminary order, which is referred to as a "buckslip." 1

Approximately six weeks after the preliminary order, on April 22, 1966, the formal order granting the special exception was issued and it contained the condition that

appellant shall erect a 42 " masonry wall to close the lot from the alley.

A building permit was applied for on April 5, 1966, and was granted on June 3, 1966, more than five weeks after issuance of the Board's formal order. The permit did not specify plans for the construction of the wall required by the Board's order. The record shows affirmatively, however, that petitioners were aware of the condition in the formal order of April 22nd prior to issuance of the building permit on June 3rd, but failed to bring the condition to the attention of the Department of Licenses.2 No wall was ever built. Because of complaints received from neighbors, the Board on July 22, 1970, requested that petitioners appear at a public hearing in order to show cause why the special exception should not be revoked for failure to comply with the condition imposed. Although no transcript of this hearing is in the record, it appears that petitioners were there permitted to apply for rescission of the condition. Petitioners did so and after a public hearing, the appeal was denied. Motions for rehearing and reconsideration were made before the Board and also denied.

Petitioners' contentions are threefold. They argue that (1) the Board is without jurisdiction or authority to deprive them

of access to the alley by requiring construction of a wall as this action constitutes a taking of property without just compensation; (2) the Board is now estopped from requiring construction of the wall as the petitioners obtained a building permit in reliance upon the Board's preliminary order which they assert did not contain notice of the condition, and the building permit then acquired did not require a wall; (3) the Board acted illegally and arbitrarily in refusing to rescind the condition as the denial was not properly based upon findings of fact, conclusions of law, or evidence in the record.

[1-3] In reference to the authority of the Board to limit access to the parking area of petitioners' property as a condition of granting the special exception, it is true that, generally, the right of access to public streets, and consequently alleys, constitutes a proprietary interest which may only be taken by the government upon payment of just compensation. See Brownlow v. O'Donoghue Bros., 51 App.D.C. 114, 276 F. 636 (1921). See also 10 McQuillan, Municipal Corporations § 30.63 (3d ed. rev. vol. 1966). An order of the Board would be void if it constituted a taking of a proprietary right without such compensation. Brownlow v. O'Donoghue, supra. The Board may apply reasonable conditions, however, to insure that the grant of a special exception will be' in harmony with the Zoning Regulations and will not tend to affect adversely the use of neighboring property. See Zoning Regulations § 7514.-12(d)3 North Plainfield v. Perone, 54 N.J.Super. 1, 148 A.2d 50 (1959); Everson v. Zoning Bd. of Adjustment, 395 Pa. 168, 149 A.2d 63 (1959); Stevenson v. Palmer, 223 Tenn. 485, 448 S.W.2d 67 (1969); 8A McQuillan, Municipal Corporations § 25.271 (3d ed. rev. vol. 1965).

[4] Unlike in Brownlow, supra, this is not a case where the government seeks on its own initiative to take petitioners' property right. Instead, the Board, in response to petitioners' request for a special exception, attached a condition to the grant of the exception which in its view promoted harmony with the Zoning Regulations. Prior to acceptance of the special exception petitioners were not required to construct a wall as they could have challenged first the imposition of this condition. Moreover, the condition does not remove petitioners' access to the premises as compliance with it would leave open the principal street entrance to the parking area. Consequently, in this context we see no basis for viewing the condition as unreasonable and conclude there was no taking of property without just compensation.

Petitioners next contend that since the storage area was built in reliance upon a building permit not reflecting the necessity for a wall, the Board should be estopped from enforcing the condition.

[5, 6] Although estoppel has occasionally been invoked to prevent enforcement of zoning ordinances where there has been reliance upon an invalid order, ...

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12 cases
  • Wieck v. District of Columbia, Bd. of Zoning, 10639.
    • United States
    • D.C. Court of Appeals
    • February 1, 1978
    ...the affirmative defenses of estoppel and lathes are not judicially favored. See, e.g., Nathanson v. District of Columbia Board of Zoning Adjustment, D.C.App., 289 A.2d 881, 884 (1972); People v. County of Kern, 39 Cal.App.3d 830, 115 Cal.Rptr. 67 (Dist.Ct.App.1974). Furthermore, as stated i......
  • Stephen C. Glenn, Inc. v. Sussex County Council
    • United States
    • Court of Chancery of Delaware
    • April 15, 1987
    ...395 A.2d 658 (1978); Montgomery County, et al v. Mossburg, Md.Ct.App., 228 Md. 555, 180 A.2d 851 (1962); Nathanson v. D.C. Board of Zoning Adjustment, D.C.Ct.App., 289 A.2d 881 (1972). See also: Saini, et ux v. Zoning Board of Review of the City of Warwick, R.I.Supr., 99 R.I. 269, 207 A.2d ......
  • P Overlook v. Washington County
    • United States
    • Court of Special Appeals of Maryland
    • December 2, 2008
    ...A District of Columbia zoning case applying the doctrine of equitable estoppel is similar to the case at bar. In Nathanson v. D.C. Bd. of Zoning Adjustment, 289 A.2d 881 (1972), property owners sought a special exception to erect a storage facility on the rear area of their liquor store pro......
  • RAFFERTY v. ZONING COM'N, 89-384
    • United States
    • D.C. Court of Appeals
    • December 3, 1990
    ...its Zoning Regulations where a citizen takes action in reliance on an order subsequently invalidated. See Nathanson v. Board of Zoning Adjustment, D.C.App. 289 A.2d 881, 884 (1972); District of Columbia v. Cahill, 60 App.D.C. 342, 54 F.2d 453 (1931). We cannot reach that issue unless we are......
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