Saah v. District of Columbia Bd. of Zoning, 80-88.

Decision Date29 July 1981
Docket NumberNo. 80-88.,80-88.
Citation433 A.2d 1114
PartiesJohn SAAH, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent.
CourtD.C. Court of Appeals

Donald Cefaratti, Jr., Washington, D.C., for petitioner.

Leo N. Gorman, Asst. Corp. Counsel, Washington, D.C., with whom Judith W. Rogers, Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief, for respondent.

Before KELLY, FERREN and PRYOR, Associate Judges.

KELLY, Associate Judge:

In this case we are called upon to review a decision of the Board of Zoning Adjustment denying petitioner a variance that would permit him to retain a structure which exceeds the maximum allowable percentage of lot occupancy. We hold that the zoning authorities, having approved, but later cancelled petitioner's building permit, are estopped from denying the variance sought. Therefore, we reverse, and remand for disposition of petitioner's application in accordance with this opinion.

I

Petitioner is the owner of improved property located at 1521 Church Street, N.W., within an R-5-B District. He purchased this property on March 15, 1978, at which time the lot contained a single family dwelling consisting of two stories and a basement, with a certificate of occupancy, issued July 22, 1952, permitting use of the second floor as a tenement house. On May 9, 1978, a building permit was issued allowing petitioner to renovate the structure to include three apartments. Construction was proceeding according to plan when, in September of 1978, the rear half of the building collapsed. Petitioner was then advised by a structural engineer to replace the original masonry walls above the first floor. New plans were prepared for the renovation, and new building permits were sought from the city government. On September 8, 1978, two permits were issued to petitioner: the first was for an "addition to a three story apartment house brick/frame as per applicant's plan and plat," and the second permit covered revision of the permit originally issued on May 9, 1978. Petitioner again began construction.

More than two months later, on November 17, 1978, the two permits were cancelled and petitioner was directed to cease work on the ground that approval for the permits had been erroneously granted. The problem, which, if it had been discovered in September, would have precluded approval of the plans in the form in which they were submitted at that time, was that the structure exceeded, by 123.91 square feet, the maximum lot occupancy of 60% applicable in the R-5-B zone.1 The reason the permits had been approved in September was that in computing the area covered by the proposed structure, a passageway alongside the east side of the first floor of the building was not taken into account. The passageway is not enclosed at either end; however, the second and third floors project over the passageway and abut the western wall of the building next door. The maximum lot occupancy for petitioner's property is 1,254 square feet. Before renovation the structure covered 1,037 square feet; when the new construction is included, adding the projection over the passageway, the structure covers an additional 340.91 square feet. Thus, the total lot occupancy is then 1,337 square feet, or somewhat less than 65%. The Board found that at the time the permits were cancelled the renovation was 60% complete.

On November 30, 1978, the Corporation Counsel, in a memorandum to the Acting Chief of the Zoning Regulations Division, stated that the "circumstances establish sufficient elements of an estoppel to require the District Government to set aside the direction to cease work, pending timely application for an area variance." In Corporation Counsel's view, not all elements of an estoppel, in particular reasonable reliance, had yet been established, and a formal hearing was thought to be necessary to make that determination.

On December 8, 1978, petitioner was informed by letter that the order to cease work was lifted, provided (1) an application for an area variance was filed by December 15, and (2) a revision permit was secured authorizing construction of a rear-entry way not shown on the original plans. Petitioner made timely filing of the application for an area variance on December 15, 1978, and, after several hearings before the Board of Zoning Adjustment, the application was denied on January 4, 1980.

II

Although the doctrine of equitable estoppel has traditionally not been favored when sought to be applied against a government entity, see Note, Equitable Estoppel of the Government, 79 Colum.Law Rev. 551, 552-54 (1979), it is accepted that in certain circumstances an estoppel may be raised to prevent enforcement of municipal zoning ordinances. District of Columbia v. Cahill, 60 U.S.App.D.C. 342, 54 F.2d 453 (1931); see Wieck v. District of Columbia Board of Zoning Adjustment, D.C.App., 383 A.2d 7, 11 (1978); A. Rathkopf, The Law of Zoning and Planning, ch. 67, § 2 (4th ed. 1980).

The elements that must be shown in order to raise an estoppel against enforcement of a zoning regulation are: (1) that a party, acting in good faith, (2) on affirmative acts of a municipal corporation, (3) makes expensive and permanent improvements in reliance thereon, and (4) the equities strongly favor the party seeking to invoke the doctrine. Wieck v. District of Columbia Board of Zoning Adjustment, supra, at 11. Furthermore, we held in Nathanson v. District of Columbia Board of Zoning Adjustment, D.C.App., 289 A.2d 881, 884 (1972), that reliance by the party must be justified.

The Board concluded that in this case some, but not all, of the above elements were present. Given the expertise of an administrative agency, we are generally bound by its decision if it is supported by, and in accordance with, reliable, probative and substantial evidence in the whole record, and the agency's conclusions flow rationally from its findings. Stewart v. Board of Zoning Adjustment, D.C.App., 305 A.2d 516 (1973). However, where the agency's final decision rests on a question of law, the reviewing court has the greater expertise, and the agency decision is therefore accorded less deference. See Gordon v. District Unemployment Compensation Board, D.C.App., 402 A.2d 1251, 1254 (1979); B. Mezines, J. Stein & J. Gruff, Administrative Law § 51.01 (1977); F....

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