Nathanson v. District of Columbia Bd. of Zon. Adjust., No. 5761.
| Docket Nº | No. 5761. |
| Citation | 289 A.2d 881 |
| Case Date | April 17, 1972 |
v.
DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent.
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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
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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
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a proprietary interest which may only be taken by the government...
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Wieck v. District of Columbia, Bd. of Zoning, No. 10639.
...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 in District of Columbia v.......
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Stephen C. Glenn, Inc. v. Sussex County Council, No. 8382
...et al v. Mossburg, Md.Ct.App., 228 Page 83 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 47 (1965); Zoning Board of Adjus......
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P Overlook v. Washington County, No. 1142, September Term, 2007.
...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 property. The special exce......
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RAFFERTY v. ZONING COM'N, No. 89-384
...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 provided with an adequ......
-
Wieck v. District of Columbia, Bd. of Zoning, No. 10639.
...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 in District of Columbia v.......
-
Stephen C. Glenn, Inc. v. Sussex County Council, No. 8382
...et al v. Mossburg, Md.Ct.App., 228 Page 83 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 47 (1965); Zoning Board of Adjus......
-
P Overlook v. Washington County, No. 1142, September Term, 2007.
...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 property. The special exce......
-
RAFFERTY v. ZONING COM'N, No. 89-384
...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 provided with an adequ......