Wieck v. District of Columbia, Bd. of Zoning, 10639.

• Decision Date: 01 February 1978
• Docket Number: No. 10639.,10639.
• Citation: 383 A.2d 7
• Parties: Paul WIECK, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent.
• Court: D.C. Court of Appeals

383 A.2d 7

Paul WIECK, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent.

No. 10639.

District of Columbia Court of Appeals.

Argued May 12, 1977.

Decided February 1, 1978.

Harley J. Daniels, Washington, D. C., with whom R. Robert Linowes, Washington, D. C., was on the brief, for petitioner.

S. Perry Jones, Asst. Corp. Counsel, Washington, D. C., with whom John R. Risher, Jr., Corp. Counsel, Louis P. Robbins, Principal Deputy Corp. Counsel, and Richard W. Barton, Deputy Corp. Counsel, Washington, D. C., were on the brief, for respondent.

Before KERN, GALLAGHER and MACK, Associate Judges.

GALLAGHER, Associate Judge:

This is a petition for review of an order of the Board of Zoning Adjustment (BZA) denying an appeal from a decision of the Chief of the Zoning Inspection Branch.¹ That decision, if upheld and enforced, would require petitioner to remove from a back-yard structure — which has been and is now used as a residential rental property — those plumbing and electrical items which render the building suitable for human habitation. The building concededly does not comply with the applicable zoning regulation, but petitioner argues that the BZA erred in not finding the District of Columbia government (District) estopped from enforcing that regulation with respect to his property. The peculiar facts of this case are crucial to our decision and thus are recounted in detail.

In June of 1967, a building permit was issued to petitioner's predecessor in interest, Cecile deRochefort, for the erection of an accessory structure — a shed for the storage of garden tools — at 3267 P Street, N.W. The shed was completed in October of that same year. The shed was built with aluminum siding and the value of the work set at $1,200.

The following month, on November 15, a second building permit was issued to Mrs. deRochefort for the stated purpose of repair, authorizing the construction of a new fireplace, partitions for a new bathroom, and some electrical wiring work — the stated value of which was $260. The application for this permit stated the present use of the building as "Priv. Home" and the issued permit recites the occupational use as a dwelling. The drawing accompanying the application describes the work as being done to the "recreation room". The work described in the permit was done to the backyard structure which had been erected under the authority of the first permit issued to Mrs. deRochefort. Twice before work had commenced on the structure and at least twice during work on it, an inspector visited the site.

Several months after completion of the work described in the second permit, the Zoning Administrator sent a letter dated July 2, 1968, to Mrs. deRochefort informing her that the second permit had been issued erroneously due to a misstatement of fact in the permit application — i.e., that the present use of the building was as a private home. Furthermore, the letter ordered her "to remove those items of a plumbing and electrical nature which by their presence make the structure suitable for human habitation and discontinue use of the structure for human habitation." This order was based on her purported violation of a zoning regulation² in using the structure as a dwelling.

After this order with its threat of enforcement, no other action on the part of the zoning authorities occurred until three years later in February 1971, at which time a letter almost identical to that of July 2, 1968, was sent to her. Again, despite this warning of potential penalties, no further enforcement action was taken. Under unclear circumstances, however, an inspector noted on July 12, 1971, that the "bldg. in question is now used as a tool shed only."³

Petitioner purchased the property at 3267 P Street, N.W., in May 1974. On December 2, 1974, the Chief of the Zoning Inspection Branch sent a notice to petitioner advising him of the zoning violation and ordering him to dismantle the offensive structure, reverting its use to a tool shed in accordance with the first permit. Mr. Wieck appealed to the BZA from that order. At the BZA hearing, petitioner's counsel argued that the zoning officials were estopped from enforcing the zoning regulation violated by the backyard structure. In denying the appeal, the BZA declined to rule on the estoppel issue asserting that sufficient material facts — particularly the testimony of Mrs. deRochefort, whom the BZA had no authority to subpoena — were not introduced to enable it to weigh the equities of the parties involved.

The applicable standard of review is set out in D.C.Code 1973, § 1-1510. See § 11-722; Hubbard v. District of Columbia Board of Zoning Adjustment, D.C.App., 366 A.2d 427 (1976). Thus, this court has the power

(3) to hold unlawful and set aside any action or findings and conclusions found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; . . or (E) unsupported by substantial evidence in the record of the proceedings before the court. [§ 1-1510(3).]

Our duty on review of this BZA order is "[to] determine whether findings made `are supported by and in accordance with reliable, probative, and substantial evidence in the whole administrative record, Schiffmann v. ABC Board, D.C.App., 302 A.2d 235 (1973), and whether the conclusions of the Board flow rationally from these findings, Stewart v. BZA, D.C.App., 305 A.2d 516 (1973).' Marjorie Webster Junior College, Inc. v. BZA, D.C.App., 309 A.2d 314, 319 (1973)." Dietrich v. District of Columbia Board of Zoning Adjustment, D.C.App., 320 A.2d 282, 285 (1974).

The BZA concluded, on the basis of its findings and the record, that the estoppel "issue raised by . . [petitioner] is not supported by sufficient facts to enable the Board to decide that issue." The Board then stated vaguely that such an issue must be "decided by weighing the equities of the parties involved, based upon a factual determination by the Board as to the actions of those parties." In deciding not to rule on the asserted estoppel, the BZA relied principally upon its failure to determine why the second permit was issued.⁴ The BZA erred, however, as there is sufficient evidence in the record to rule on petitioner's estoppel argument.

Due to the important general public interest in the integrity and enforcement of zoning regulations, the affirmative defenses 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. Stewart, D.C.App., 278 A.2d 117, 119 (1971):

While estoppel may be applied to the District of Columbia in certain limited situations when the equities are strongly in favor of the party invoking the doctrine (District of Columbia v. Cahill, 60 App.D.C. 342, 54 F.2d 453 (1931), cited in footnote], the District of Columbia must first have authority to act before conduct of its employees can be the basis of an estoppel defense. National Hospital Service Society, Inc. v. Jordan, 76 U.S.App. D.C. 26, 128 F.2d 460, cert. denied, 317 U.S. 664, 63 S.Ct. 65, 87 L.Ed. 534. . (1942). [Footnote omitted.]

The Board argued here that the zoning officials had no authority to issue the second permit,⁵ and that, therefore, under District of Columbia v. Stewart, supra, and National Hospital Service Society, Inc. v. Jordan, supra, the petitioner is barred from asserting estoppel.⁶ In the leading case of District of Columbia v. Cahill, 60 App.D.C. 342, 54 F.2d 453 (1931), where estoppel was applied in a zoning suit, the court did not specifically consider the issue of the official's authority as bearing on the application of the doctrine against the District, but focused on the particular elements of estoppel and particularly on the relative equities of the two parties. We do not reach this issue,⁷ however, since we find that petitioner has not conclusively proved all the elements of equitable estoppel.

The petitioner relies primarily on Cahill to establish estoppel. The necessary elements are: a party (1) 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 invoking the doctrine. See, e.g., Cahill, supra at 344, 54 F.2d at 454-55. Furthermore, the reliance of the party must be justifiable. Nathanson v. District of Columbia Board of Zoning Adjustment, supra at 884.

The record does not demonstrate petitioner's justifiable reliance on any affirmative acts of District zoning officials. Petitioner does not point to anything the zoning officials did upon which he relied to his detriment nor does the record disclose any reliance-provoking conduct. There is no evidence which indicates that petitioner knew of, much less relied upon, the issuance of the second permit. Rather, his reliance resulted from the inaction of the zoning officials — the failure to enforce their two prior orders of 1968 and 1971. A failure to act is not equivalent to an affirmative act. Moreover, inaction ordinarily is not sufficient to raise an estoppel. See City of Evanston v. Robbins, 117 Ill.App.2d 278, 254 N.E.2d 536 (1970); Rye Beach Village District v. Beaudoin, 114 N.H. 1, 315 A.2d 181 (1974); Salt Lake County v. Kartchner, 552 P.2d 136 (Utah 1976).⁸

Our inquiry has not ended, however, until we consider the application of laches to this situation. Although not specifically pleaded as a defense to enforcement before the BZA or before this court, the substance of a laches defense is apparent from the petitioner's equitable arguments — particularly those focusing on the longlasting failure of the proper officials to enforce their previous orders and the consequent prejudice to petitioner from their present attempted enforcement.

"Lathes is a species of...