Shenk v. Zoning Commission of District of Columbia, 23266.
| Decision Date | 18 March 1971 |
| Docket Number | No. 23266.,23266. |
| Citation | 440 F.2d 295,142 US App. DC 267 |
| Parties | Harry SHENK et al., Appellees, v. The ZONING COMMISSION OF the DISTRICT OF COLUMBIA et al., Appellants. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. John R. Hess, Asst. Corporation Counsel for the District of Columbia, with whom Messrs. Hubert B. Pair, Acting Corporation Counsel at the time the brief was filed, and Richard W. Barton, Asst. Corporation Counsel, were on the brief, for appellants.
Mr. Sol M. Alpher, Washington, D. C., with whom Mr. Maurice Friedman, Washington, D. C., was on the brief, for appellee, Shenk.
Before LEVENTHAL, ROBB and WILKEY, Circuit Judges.
The appellees are the owners of Lots 63 and 64 in Square 5877, located in the Anacostia or southeastern section of the District of Columbia. They applied to the Zoning Commission of the District of Columbia1 for a change in the zoning classification of their property from R-1-B to R-5-A. After a public hearing before the Commission the application was denied.2 The appellees thereupon filed in the district court a complaint for a mandatory injunction requiring the Commission to rezone the property as requested. The district court directed the Commission to grant the application. The Commission appeals. We affirm.
The appellees' property consists of two lots fronting on Stanton Road. The lots form a single parcel, their combined area being approximately one acre. Their combined frontage on Stanton Road is approximately 100 feet. At present the property is vacant. It is zoned in a classification known as R-1-B which permits it to be used solely for single-family dwellings. D.C. Zoning Regs. § 3101.1. In their application to the Zoning Commission the appellees sought a rezoning to a classification known as R-5-A which would permit the construction on the property of apartments known as garden-type apartments, two or three stories high, without elevators. D.C. Zoning Regs. § 3105.1.
The Zoning Advisory Council of the District of Columbia, a body created by statute, D.C. Code § 5-417 (1967), recommended that the application be granted. Although the Council "recognized that this will to some extent throw additional demands on community facilities in the area, particularly schools, neighborhood parks, sewers, and etc." sic, the Council found that the change in zoning was supported by "changes of circumstances" in the area. The Council reminded the Commission that it had "recently changed the zoning of three other blocks in the area to R-5-A, and the block now under consideration represents one of only two blocks in the area that remain zoned for single-family residences."
The application was opposed before the Commission by several citizens and a civic association upon the ground that there was a need in the area for inexpensive single-family houses; and it was argued further that the construction of apartment houses would overtax schools and police and fire-fighting facilities in the neighborhood.
The only question before the district court was whether the action of the Zoning Commission in denying the application was arbitrary and capricious, having no substantial relation to the general welfare. Lewis v. District of Columbia, 89 U.S.App.D.C. 72, 190 F.2d 25 (1951); Leventhal v. District of Columbia, 69 App.D.C. 229, 100 F.2d 94 (1938); American University v. Prentiss, 113 F.Supp. 389 (D.D.C.1953), aff'd, 94 U.S.App.D.C. 204, 214 F.2d 282, cert. denied, 348 U.S. 898, 75 S.Ct. 217, 99 L.Ed. 705 (1954); Diedrich v. Zoning Commission, 129 U.S.App.D.C. 265, 393 F.2d 666 (1968). Recognizing this limitation upon the scope of its review the district court found on the record before it "that the denial of the application for rezoning was arbitrary and capricious and therefore should be set aside as invalid and unconstitutional."
The record before the district court disclosed, and the court found, that the appellees' property is what might be described as a single-family zoned island in a sea of garden-type apartment zoning.3 Thus, it appears that in eleven prior cases between 1963 and 1967 the Commission granted applications to rezone other property in the neighborhood to permit the erection of garden-type apartments. In several of these cases, relating to property surrounding the appellees' lots, the Commission overruled objections identical with those advanced in this case. The district court stated that it was "unable to discern any...
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