development of the neighborhood than did the uses permitted by the Board of other properties on lower Sixteenth Street; nor was there any evidence offered tending to show that the use of plaintiffs' property would render less desirable, for residential purposes, other property used as such in the neighborhood.
The purpose of Paragraph 29 of Section XXIII, Part 2, is, according to the Commission itself, to permit a limited type of commercial use for the whole area of 16th Street, N.W., between H and M Streets. The Board of Adjustment has already approved the conversion of some of the property in this area to such use. Is there any sound basis for denying similar approval to the property here in question?
In their points and authorities in support of their motion for summary judgment, pages 9 and 10, defendants attempt to justify denial of plaintiffs' request by distinguishing it from requests which were granted. '* * * In the Teck instance the exception was never exercised. The Reiner and Moskowitz office building had long before ceased to be an apartment house and was occupied by a foreign government office. The Shinn building was a non-conforming office use for many years before zoning existed. The Lowe property was an outmoded town house and the exception was granted, limited to professional offices. Dr. Sappington had for many years occupied two floors for his offices and permission was granted to change the other two floors likewise to offices for his son. The Motion Pictures Association was given permission to use a very large outmoded residence with no exterior changes. Exactly the same was true of the Christian Science Reading Room and the office use upstairs was simply for four church officials. Prior to erection of the Tucci or World Center Building, a large, outmoded residence, which had become dilapidated was torn down, and the land used as an automobile parking lot. Moreover the lot did not face on Sixteenth Street but on K Street, which is zoned commercial in any instance.'
The defendants then say in referring to their actions: 'The opinion then takes note of three of the applications granted subsequent to the bringing of the suit by plaintiff. The American Federation of Labor was permitted to build a monumental type building on land that has been a vacant lot and the rear of which was already zoned commercial. The National Automobile Dealers and, subsequently, the International Union of Electrical Workers were permitted to erect their national headquarters where a large outmoded town house had stood. Charles Tompkins was permitted to physically extend his offices into an adjoining large outmoded residence which had theretofore been occupied by doctors and a foreign government.' Thus the majority of the Board attempted to distinguish the requests it granted from the plaintiffs' request -- an attempt which is utterly without foundation and merit. They have failed to distinguish between the appeals granted and the plaintiffs' appeal.
The defendants say on page 9 of their points and authorities: '* * * the point is that in no case did the Board permit the conversion of a building that was being substantially used as residential property', but this is not 'the point' at all. The issue here is, in the light of the evidence before the Board, will the granting of the plaintiffs' request 'tend to affect adversely the use of neighboring property in accordance with the zoning regulations and maps' or 'affect adversely the present character and future development of the neighborhood' or 'result in dangerous or otherwise objectionable traffic conditions?' Stated another way, the issue is, considering the evidence before the Board, will the use of plaintiffs' property as an office building be more in accord with the present character and future development of the neighborhood than its present use as an apartment house?
Due to the numerous exceptions already granted by the Board to properties similarly situated, the character of the neighborhood has ceased to be residential. Office buildings, hotels and other nonresidential uses now in being or authorized, comprise 85.4 per cent of the Sixteenth Street frontage between H and M Streets, N.W. In view of this, and in view of the testimony before the Board, it cannot now reasonably be said that the conversion of plaintiffs' building to an office use would 'tend to affect adversely the use of neighboring property' or 'affect adversely the present character and future development of the neighborhood' or 'result in dangerous or otherwise objectionable traffic conditions.'
It is true that the Board of Zoning Adjustment cannot transform lower Sixteenth Street into a typical commercial street, but the plaintiffs are not asking for this. It is not contemplated that the premises in question would house retail stores or that it would contain show windows or that it would display neon or gas signs. Plaintiffs are only asking that their building be converted to a limited type of commercial use.
The burden of showing the existence of conditions warranting the granting of the special exception rests upon the plaintiffs. They have carried the burden.
There being no sound basis for distinguishing between plaintiffs' appeal and the other appeals already granted, and the evidence before the Board failing to support the conclusion of the majority of the Board, the denial of plaintiffs' appeal was arbitrary, and it is the conclusion of this Court, after a careful consideration of the entire record, including the affidavits, the exhibits, the briefs and the oral arguments, that the defendants' refusal to grant plaintiffs' appeal was without reasonable foundation and constituted a manifest abuse of discretion.
The motion for summary judgment of the defendants is denied, and the motion for summary judgment of the plaintiffs is granted, and the defendant members of the Board of Zoning Adjustment are hereby ordered to vacate their order of April 19, 1955 denying plaintiffs' appeal to convert the use of premises 1016 Sixteenth Street, N.W. to an office building, and they are hereby ordered to grant without unnecessary delay the exception as provided in Paragraph 29 of Part 2 of Section XXIII of the Zoning Regulations of the District of Columbia.
Counsel for the plaintiffs shall submit an order not inconsistent with this opinion.
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