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05/24/51 Lewis Et Al. v. District of Columbia Et Al

May 24, 1951




Before CLARK, PRETTYMAN and WASHINGTON, Circuit Judges.



WASHINGTON, Circuit Judge.

This suit challenges the action of the Zoning Commission of the District of Columbia in refusing to change the classification of appellants' property from "residential" to "commercial."

The property in question is located at the intersection of Connecticut and Florida Avenues, on the northwest corner. *fn1 The buildings were erected prior to the enactment of the first Zoning Act, *fn2 and have always been used for residential purposes (of late years, on an apartment or multi-family basis). During the period from the passage of the Zoning Act to 1946, it appears that the south side of Florida Avenue, Northwest, marked the limit of commercial development on Connecticut Avenue, at least below the Taft Bridge. Appellants' property (along with the property known as "Temple Heights," on the northeast corner of Connecticut and Florida Avenues) was thus the southern extremity of the residential area on Connecticut Avenue.

On July 8, 1946, the Zoning Commission rezoned the area on Connecticut Avenue just opposite appellants' premises - a 2 1/2 acre triangle in Temple Heights, north of Florida Avenue - as "First Commercial." Appellants consented to that rezoning, and shortly thereafter filed a petition with the Zoning Commission for similar action with regard to their own property. After an adverse report by the Zoning Advisory Council, a public hearing was held by the Zoning Commission. Later, the Commission inspected appellants' property. Finally, on July 17, 1947, the Commission denied appellants' petition. It adopted the report and recommendation of the Zoning Advisory Council, which concluded that the proposed change was "undesirable and unjustified . . . based on several factors, (1) lack of need; (2) substantial character of existing residential improvements; and (3) the possibility that at least four of the properties are eligible for restricted commercial use under the provisions of Paragraph 22, Part 2, Section XXIII of the Zoning Regulations."

Appellant then sued in the United States District Court for the District of Columbia, seeking a mandatory injunction which would require appellees to change the classification of the property to "First Commercial." After answer was filed, appellants moved for summary judgment. Appellees made a similar motion, which was granted. From this judgment appeal is taken. I.

In considering the propriety of any zoning order it must be remembered that zoning, by definition, requires that a boundary by drawn at some point, even though practical conditions may not change abruptly as the line is crossed. *fn3 "Some must suffer by the establishment of any territorial boundaries." L'Hote v. New Orleans, 177 U.S. 587, 597, 20 S. Ct. 788, 792, 44 L. Ed. 899. That is the price to be paid in order that we may have effective zoning. The necessity and desirability of zoning and city planning can no longer be subject to debate. Uncontrolled, haphazard development causes blighted neighborhoods, with their residents deprived of the amenities of decent living and of the environment which breeds good citizenship. *fn4 Accordingly, Congress has given considerable discretion to the Zoning Commission for the establishment of a comprehensive zoning plan, so that the public welfare may dominate the development of the capital city.

In reviewing the exercise of that discretion, "It is not the function of the court to substitute its judgment for that of the Commission even for reasons which appear most persuasive. A suit to declare a zoning order void is not an appeal on the merits of the issues presented to the Commission at its hearing." Wolpe v. Poretsky, 79 U.S.App.D.C. 141, 143-144, 144 F.2d 505, 507-508. "The action of zoning authorities, as of other administrative officers, is not to be declared unconstitutional unless the court is convinced that it is 'clearly arbitrary and unreasonable, having no substantial relation to the . . . general welfare.' [Citing cases] If the question is 'fairly debatable,' the zoning stands." Leventhal v. District of Columbia, 69 App.D.C. 229, 230, 100 F.2d 94, 95. II.

Appellants' primary contention is that when the Zoning Commission on July 8, 1946, extended the commercial classification to include a 2 1/2 acre segment of Temple Heights, it established "a new comprehensive plan for Connecticut Avenue," and that it acted arbitrarily in excluding appellants from the benefit of this new plan. They argue that the Commission's action is "invalid by reason of its arbitrary, discriminatory characteristics . . . bearing no real or substantial relation to the public health, safety, morals, or general welfare . . ." (Brief, p. 7). They refer to this court's decision in Wolpe v. Poretsky, 81 U.S.App.D.C. 67, 154 F.2d 330, certiorari denied 329 U.S. 724, 67 S. Ct. 69, 91 L. Ed. 627, and contend that the action of the Commission here amounts to "spot zoning" within the condemnation expressed in that case. Reference is also made to the statement of this court in Leventhal v. District of Columbia (supra) with regard to the injury which may be suffered by an owner of a "residence-zoned island or peninsula in a commercial-zoned sea."

There appears to be no dispute about the governing facts: Appellants are located at a busy intersection, the other corners of which have now been classified for commercial use. The stream of traffic passing appellants' property is exceedingly heavy; the attendant noise and activity may well render it of marginal desirability for residential purposes. At the same time, this condition is not entirely novel. For a generation, commerce has been separated from appellants' property merely by the width of Florida Avenue. The only major change is with regard to Temple Heights.

It is unquestionably true that the partial commercialization of Temple Heights is a factor lending considerable support to appellants' position, as they no doubt realized when they supported that step in 1946. But it is by no means conclusive. There is nothing arbitrary per se "in the mere zoning of one side of a street for business uses and the other side thereof for residential uses, where this is part of a comprehensive and reasonable zoning plan." 8 McQuillan, Municipal Corporations, p. 159 (3rd ed. 1950). Appellants do not here argue that the District does not have (in general) a comprehensive and reasonable plan, but rather that they have been improperly excluded from certain of its benefits. That, of course, can only be determined by considering the facts of the particular case. For different treatment of two tracts of property in the same locale is only discriminatory if the properties are similarly situated, and no reasonable grounds exist for differentiation.McQuillan (supra) at 87-88, 155-56.

The materials before us indicate that Temple Heights is situated quite differently from appellants' property. It is a tract not yet developed, which is to be cut through by an extension of T Street.A new thoroughfare and new parking area will thus be created. The reclassified portion of Temple Heights is a vacant triangle of some 2 1/2 acres bounded by busy streets. A residential development on such a site could not logically be expected: commercial use is more in keeping with future trends. Further, it would appear that the location and characteristics of the 2 1/2 acre segment are such that its reclassification will expose neighboring residential areas to a minimum of commercial encroachment, a statement which could hardly be made as to a comparable change respecting appellants' property. *fn5 And it has long been recognized that one of the purposes of zoning is to "stabilize the uses of land" and "furnish a protection to residential neighborhoods which will cause them to maintain themselves in a decent and sanitary way for a longer time than they otherwise would. . . . By this process obsolescence is greatly retarded." *fn6 We conclude, therefore, that the differentiation in classification of which appellants complain is not discriminatory, so as to render the Commission's action arbitrary per se. III.

We turn to the three grounds upon which the Zoning Commission relied in refusing to rezone appellants' property. All are vigorously attacked by appellants. The first ground, "lack of need," is alleged by them to be merely a sheltering of certain other property owners, i.e., those now possessing commercially-zoned property, against competition on the part of appellants. We see no basis for imputing such a motive to the Commission. Rather we believe that the Commission's action can be more accurately described as tending to cause existing commercial zones to become fully developed before additions to such zones are made. This appears to us to be a reasonable objective. *fn7 "An unlimited supply of commercial sites invites unnecessary and wasteful expansion of enterprises. . . . The over-supply of store facilities inevitably leads to the blighting of the neighborhood." *fn8 Further, to provide for the development of concentrated business districts, district from residential districts in which the amenties are preserved, would certainly appear to be a more desirable arrangement than to allow mixed commercial-residential areas not offering much in the way of comfortable living. See ...

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