Wolpe v. Poretsky

• Decision Date: 19 June 1944
• Docket Number: No. 8546.,8546.
• Citation: 144 F.2d 505,79 US App. DC 141
• Parties: WOLPE et al. v. PORETSKY et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

79 US App. DC 141, 144 F.2d 505 (1944)

WOLPE et al. v. PORETSKY et al.

No. 8546.

United States Court of Appeals District of Columbia.

Argued March 10, 1944.

Decided June 19, 1944.

Writ of Certiorari Denied November 20, 1944.

Mr. H. Winship Wheatley, of Washington, D. C., for appellants.

Mr. Louis Ottenberg, of Washington, D. C., with whom Mr. Edwin Shelton, of Washington, D. C., was on the brief, for appellee Poretsky.

Mr. William C. Sullivan, of Washington, D. C., for appellees Machen.

Messrs. Richmond B. Keech, Corporation Counsel, District of Columbia, and Vernon E. West, Principal Assistant Corporation Counsel, District of Columbia, both of Washington, D. C., entered appearances for appellees Kutz, Young, Mason, Lynn and Drury.

Before GRONER, Chief Justice, and EDGERTON and ARNOLD, Associate Justices.

Writ of Certiorari Denied November 20, 1944. See 65 S.Ct. 190.

ARNOLD, Associate Justice.

Appellee, Harry Poretsky, brought suit in the court below to enjoin members of the Zoning Commission of the District of Columbia from carrying into effect a zoning order regularly adopted after public hearing as required by law. At the close of a trial on the merits the court found that the action of the Zoning Commission in adopting the zoning order in question was arbitrary, capricious and void. The order of the court below enjoined the Commissioners from enforcing the zoning order and directed them to restore the parcel of land involved in this suit to the zoning classification known as residential 60-foot "A" Area, which permits the erection of apartment houses.

On April 8, after this decree was entered, the Zoning Commission, in executive session and without public hearing or notice to property owners affected, voted not to take an appeal. They also directed a correction of the official zoning plat to record the zoning classification directed by the court.

On May 6 a large number of adjoining property owners, who stated that they would be seriously injured by the erection of an apartment house on the land rezoned by the Commission under the order of court, filed a motion for leave to intervene for the purpose of moving for a new trial or, in the alternative, for the purpose of taking an appeal.

The court denied the motion for intervention on the following grounds: (1) That the time for filing a motion for a new trial had expired; (2) that intervention could not be allowed after final judgment; and (3) that the intervening petition contained nothing that would cause the court to change its ruling even if the interveners had been parties during the trial.

A special appeal was allowed by this court from the denial of the intervention.

The question presented by the record may be stated as follows: Under what circumstances may adjoining property owners intervene in a suit to enjoin the enforcement of a zoning order which affects the value or use of their property? In considering that question we must first determine what rights are given to adjoining property owners by a zoning order.

Section 5-414 of the District of Columbia Code gives as one of the objectives of the zoning law "encouraging stability of districts and of land values therein." Many other conflicting considerations must be balanced in guiding the judgment of the Zoning Commission but this is the one most important to individual property owners in a residential district threatened with encroachment by other types of building, and it is the consideration on which the intervention in this case is based. The interest of individual property owners in protecting the "stability of districts and of land values therein" is expressly recognized by Section 5-422 of the Code. That section puts neighboring property owners, specially damaged by the violation of a zoning order, on an equal footing with the Corporation Counsel in the enforcement of that order. They are given the direct right to enjoin the unlawful construction of a building.¹ Their right to bring that independent action is the basis of appellants' right to intervene in this case.

Rule 24(a) of the Federal Rules of Civil Procedure 28 U.S.C.A. following section 723c, provides for intervention of right "upon timely application * * * when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action;" italics supplied. It seems clear that a judgment which declares a zoning order to be void would bind adjoining property owners to the extent of taking away their statutory right to an independent action based on the order. Otherwise, adjoining property owners could relitigate the issues in the case any time the plaintiff began construction, on the theory that their right to bring an independent action was not concluded by the decree. The practical result of such an interpretation would be to compel anyone bringing a suit like the present one to join all property owners who may conceivably be damaged. We believe that the Zoning Commission, in the absence of intervention by adjoining property owners sufficiently represents their interest so that...