Selden v. Capitol Hill Southeast Citizens Association, 12088

• Decision Date: 23 December 1954
• Docket Number: No. 12088,12091.,12089,12088
• Citation: 95 US App. DC 62,219 F.2d 33
• Parties: Samuel M. SELDEN et al., Appellants, v. CAPITOL HILL SOUTHEAST CITIZENS ASSOCIATION et al., Appellees. Theodore I. COE et al., Appellants, v. CAPITOL HILL SOUTHEAST CITIZENS ASSOCIATION et al., Appellees. The WASHINGTON TERMINAL CO., Inc., The Real Estate and Improvement Company of Baltimore, Appellants, v. CAPITOL HILL SOUTHEAST CITIZENS ASSOCIATION et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

95 US App. DC 62, 219 F.2d 33 (1954)

Samuel M. SELDEN et al., Appellants, v. CAPITOL HILL SOUTHEAST CITIZENS ASSOCIATION et al., Appellees.

Theodore I. COE et al., Appellants, v. CAPITOL HILL SOUTHEAST CITIZENS ASSOCIATION et al., Appellees.

The WASHINGTON TERMINAL CO., Inc., The Real Estate and Improvement Company of Baltimore, Appellants, v. CAPITOL HILL SOUTHEAST CITIZENS ASSOCIATION et al., Appellees.

Nos. 12088, 12089, 12091.

United States Court of Appeals, District of Columbia Circuit.

Argued October 8, 1954.

Decided December 23, 1954.

Petition for Rehearing Denied January 17, 1955.

Messrs. Roy St. Lewis and Carl L. Shipley, Washington, D. C., were on the brief, for appellants Selden et al.

Mr. John A. Earnest, Asst. Corporation Counsel for the District of Columbia, Washington, D. C., with whom Messrs. Vernon E. West, Corporation Counsel, Chester Gray, Principal Asst. Corporation Counsel, Milton D. Korman and Harry L. Walker, Asst. Corporation Counsel, Washington, D. C., were on the brief, for appellants Coe et al.

Mr. John L. Hamilton, Washington, D. C., and Mr. George E. Hamilton, Jr., Washington, D. C., for appellants Washington Terminal Co. et al.

Mr. Jay T. McCamic, Wheeling, W. Va., of the bar of the Supreme Court of West Virginia, pro hac vice by special leave of Court, for appellees. Messrs. Howe P. Cochran and William R. Leckemby, Jr., Washington, D. C., were on the brief for appellees.

Before EDGERTON, PRETTYMAN, and WASHINGTON, Circuit Judges.

EDGERTON, Circuit Judge.

These appeals are from a judgment setting aside an order of the Board of Zoning Adjustment of the District of Columbia. The Board's order authorized, for a two-year period, an automobile parking lot at New Jersey Ave. and D St. Southeast. The neighborhood is residential and the Board's order created an exception to zoning regulations.

The Zoning Law provides that "The regulations adopted by the Zoning Commission may provide that the Board of Adjustment may, in appropriate cases and subject to appropriate principles, standards, rules, conditions, and safeguards set forth in the regulations, make special exceptions to the provisions of the zoning regulations in harmony with their general purpose and intent. * *" D.C.Code 1951, § 5-420, 52 Stat. 799. The regulations empower the Board, among other things, to "permit, in a residental district, * * * the use of an unimproved lot for the temporary parking of motor vehicles, subject to such restrictions and safeguards as may, in the opinion of the Board, be necessary to protect the residential property in the vicinity, when such use is found to be reasonably necessary or convenient to the neighborhood, and not to interfere unreasonably with the most appropriate use of neighboring property under the zone plan. * * *"

The Board of Zoning Adjustment held extensive hearings. There was ample evidence of need for additional parking facilities in the neighborhood. The Board found unanimously that "a critical parking problem is now existing on the south side of Capitol Hill." On the other hand, there was ample evidence that the parking lot would make adjoining property less desirable for residence purposes. But a majority of the Board found that "subject to compliance with restrictions and safeguards to be made conditions of this order the use will not interfere unreasonably with the use of neighboring property under the zone plan. That it will operate as a convenience to the neighborhood as such is best indicated by the probable increase in available curb parking by reason of the additional off-street spaces provided. The granting of this appeal we believe to be in the public interest." The Board attached these conditions to its order: "(a) The lot shall be appropriately surfaced with blacktop or concrete and lighted for night use as per plan on file with the Board. (b) Planting and screening arrangement, driveways and spacing shall also be provided and maintained as per plan submitted. (c) Permit shall issue for a trial period of two years only, but shall be subject to renewal in the discretion of the Board upon a new appeal filed in the manner prescribed by law."

The District Court concluded the Board's findings were not supported by substantial evidence. The court therefore directed the Board to vacate its order. We think the court erred.

A parking lot is neither a junk yard for motor vehicles nor a place for putting them in storage. It is a "lot for the temporary parking of motor vehicles". It is the parking of the motor vehicles, not the use of the lot, that the regulation requires to be temporary. The parking problem is more critical in some neighborhoods that lack off-street parking facilities than in many downtown areas that already have them. Though the proposed facility will "interfere" with the use of neighboring property for residence purposes, the question whether it will interfere "unreasonably" can only be answered, like any other question of reasonableness, in the light of all the circumstances, and these include the "critical parking problem on the south side of Capitol Hill." There is, we think, ample room for difference of opinion on this question. The Board of Zoning Adjustment is created and qualified to decide such questions of opinion. Courts should not substitute their opinion for the Board's.

Reversed.

PRETTYMAN, Circuit Judge (dissenting).

I would affirm the judgment of the District Court in this case.

The Board of Zoning Adjustment operates under regulations prescribed by the Zoning Commission. The statute so provides.¹ It says:

"The regulations adopted by the Zoning Commission may provide that the Board of Adjustment may, in appropriate cases and subject to appropriate principles, standards, rules, conditions, and safeguards set forth in the regulations, make special exceptions to the provisions of the zoning regulations in harmony with their general purpose and intent."²

And the statute further provides:

"The Board of Adjustment shall not have the power to amend any regulation or map."³

The regulations adopted by the Zoning Commission provide as follows:

"Upon appeals the Board of Zoning Adjustment is hereby empowered to grant requests for the following special exceptions, when, in the judgment of the Board, such exceptions shall be in harmony with the general purpose and intent of the zoning regulations * * *:

* * * * * *

"4. Permit, in a residential district, except as hereinafter provided, the use of an unimproved lot for the temporary parking of motor vehicles, subject to such restrictions and safeguards as may, in the

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