Palmer v. Board of Zoning Adjustment

• Decision Date: 17 February 1972
• Docket Number: No. 5884.,5884.
• Citation: 287 A.2d 535
• Parties: Gardner E. PALMER et al., Petitioners, v. BOARD OF ZONING ADJUSTMENT for the District of Columbia, Respondent, Emergency, Inc., Intervenor.
• Court: D.C. Court of Appeals

287 A.2d 535

Gardner E. PALMER et al., Petitioners, v. BOARD OF ZONING ADJUSTMENT for the District of Columbia, Respondent, Emergency, Inc., Intervenor.

No. 5884.

District of Columbia Court of Appeals.

Argued October 26, 1971.

Decided February 17, 1972.

Milton M. Gottesman, Washington, D. C., with whom William H. Greer, Jr., Washington, D. C., was on brief, for petitioners.

C. Francis Murphy, Corp. Counsel, Richard W. Barton and Earl A. Gershenow, Asst. Corp. Counsels, entered appearances for respondent but filed no brief.

Frank J. Costello, Washington, D. C., for intervenor. Warren C. Nighswander, Washington, D. C., entered appearance for intervenor.

Before HOOD, Chief Judge, and KELLY and FICKLING, Associate Judges.

HOOD, Chief Judge:

Petitioners¹ seek review of an order of the Board of Zoning Adjustment² (hereinafter the Board) granting a variance of the off-street parking regulations to intervenor, Emergency, Inc. (hereinafter Emergency).

Emergency is a District of Columbia corporation. As tenant of the Georgetown premises at 2813 M Street, N.W., located in a C-2-A district (community business center of medium density), Emergency has been authorized under a certificate of occupancy to operate as a combination restaurant-record shop. The business is staffed and managed by young people. Its purpose is to provide contemporary entertainment in a nonalcoholic surrounding through educational and musical offerings. Appeal to the community's youth is sought as an alternative to the streets. Aside from selling records Emergency provides live music on weekends. Patrons are admitted to the premises upon payment of an admission fee entitling them to a sandwich and soft drink. The record shop comprises the front area of the premises. In the rear there is an entertainment stage upon which bands play and a bar where food and drinks are prepared. Although random seats are available there are no waiters or tables to facilitate the consumption of food. Patrons may gather in any part of the shop and dancing is permitted in the entertainment area. The bulk of Emergency's revenues is used to furnish live rock music.³

Emergency desires to raise additional revenues by expanding its operation to include such activities as film workshops, repertory theater events, benefits and private party rentals. These activities would presumably require a public hall certificate, the issuance of which is conditioned upon compliance with the off-street parking regulations.⁴ Section 7205 of the Zoning Regulations requires that the parking spaces be located on the same lot with the structures they are intended to serve or elsewhere provided "[s]uch spaces are so located as to furnish reasonable and convenient parking facilities . . . but in no case shall they be farther than 800 feet from any lot line of the lot upon which the structure is located." Zoning Regs. § 7205.33. (Definitional italics omitted.)

Since no space for on-site parking is available at 2813 M Street, Emergency applied to the Board for a special exception pursuant to Zoning Regs. § 7205.3 to provide off-street parking within 800 feet of the premises. After a hearing the Board issued an order denying the application on the ground that the proposed parking lot was more than 800 feet from the M Street property.⁵ Thereafter, Emergency applied to the Board for a variance from the "800-foot" requirement. Following a brief hearing at which the record of previous litigation was incorporated therein, the Board issued an order granting a variance to Emergency. The petition for review in this court ensued.

Petitioners contend that the Board's action was arbitrary, capricious, procedurally defective and a misconstruction of the statutory prerequisites governing variances. Agreeing with the assertion that the Board's application of the statutory criteria was erroneous, we reverse. In addition we point out certain deficiencies in the Board's order that make intelligent judicial review a difficult task. For instance, the findings merely state undisputed facts, see D.C.Code 1967, § 1-1509(e) (Supp. IV, 1971), and the opinion merely echoes in large part the statutory language authorizing the grant of a variance. In short, the Board failed to set forth findings of fact of a basic or underlying nature necessary to a determination of the ultimate facts, usually stated in terms of the statutory criteria.⁶ Without such findings there is no guarantee that "cases [will] be decided according to the evidence and the law, rather than arbitrarily or from extra-legal considerations".⁷ Moreover, scrupulous fact-finding facilitates compliance with § 8202.64 of the Zoning Regulations requiring that "full reasons" be entered in the minutes book for all decisions of the Board — a regulation having more than just record-keeping value.⁸

We turn now to interpretation of the variance law. D.C.Code 1967, § 5-420 provides for a Board of Adjustment to grant variances pursuant to the following:

(3) Where, by reason of exceptional narrowness, shallowness, or shape of a specific piece of property at the time of the original adoption of the regulations or by reason of exceptional topographical conditions or other extraordinary or exceptional situation or condition of a specific piece of property, the strict application of any regulation adopted under sections 5-413 to 5-428 would result in peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the owner of such property, to authorize, upon an appeal relating to such property, a variance from such strict application so as to relieve such difficulties or hardship, provided such relief can be granted without substantial detriment to the public good and without substantially impairing the intent, purpose, and integrity of the zone plan as embodied in the zoning regulations and map. (Emphasis supplied.)

The Board's opinion states:

The only factor preventing Emergency from obtaining the public hall certificate of occupancy which it now desires is the requirement of . . . off-site parking within 800 feet (sidewalk measurement) . . . which cannot technically be met because of the condition of the property and the immediate area adjacent thereto . . . consequently, an "extraordinary and exceptional situation or condition of a specific piece of property" exists such that the strict application of Section 7205.33 of the Zoning Regulations "would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon the owner of such property" and upon Emergency.

Petitioners' argument is essentially two-fold: (1) There is no "extraordinary or exceptional situation or condition" of the M Street property within the meaning of the statute. Rather petitioners note the widespread lack of off-street parking in the Georgetown area and the ordinary dimensions of the lot in question. (2) There has been no showing of "exceptional and undue hardship upon the owner" resulting from the strict application of the "800 foot" requirement. Petitioners maintain that the "hardship" contemplated by the statute requires a showing of the owner's inability to make any reasonable use of his property in a manner authorized by the Zoning Regulations.⁹

I.

We have found few cases construing the term "extraordinary or exceptional situation or condition of a specific piece of property" because most states have literally adopted or largely fashioned their zoning legislation on the Standard State Zoning Enabling Act, recommended by the United States Department of Commerce in the 1920's, which differs in part from Section 5-420.¹⁰ It appears that the Standard Act embodies more liberal provisions than Section 5-420. The niceties between the two statutes do not concern us, however, because developing case law and commentary analysis have provided adequate principles to guide the application of our statute.¹¹

To support a variance it is fundamental that the difficulties or hardships be due to unique circumstances peculiar to the applicant's property and not to general conditions in the neighborhood.¹² If the circumstances affect the whole area the reasonableness of the regulations are challenged and the proper remedy is to seek an amendment of the regulation rather than a variance.¹³ To grant a variance when the conditions are not unique would result in similar demands from neighboring property owners. Approval of such requests would in effect be amending the Zoning Regulations thereby undermining the function of the Zoning Commission whose task it is to make the basic legislative judgments in drafting regulations.¹⁴

Our research has disclosed two states with provisions substantially identical to ours — Delaware and New Jersey. A Delaware court defined the term "extraordinary and exceptional situation or condition" in reference "to an economic, geographic or topographic situation or condition, connected with or affecting the lot for which the variance is sought. . . ."¹⁵ The New Jersey Supreme Court found an "extraordinary and exceptional situation or condition" in unusual circumstances where an owner sought to erect a commercial use (gasoline station) on a lot, zoned partly for residence and partly for business, located in a predominantly business community, split by a zone boundary and surrounded by commercial properties.¹⁶

Here the Board concluded that the "800-foot" requirement could not be met because of "the condition of the property and the immediate area adjacent thereto". The findings fail to disclose what was unique about the condition of the property or its adjacent area. Emergency argues that the location of the lot "can supply the unique hardship required to support a variance", citing in support thereof a statement from a treatise.¹⁷ The assertion is made that if Emergency was located "but a short distance from 2813 M Street in the direction of the [proposed] parking lot," the "800-foot" requirement could be...