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October 29, 1956

George HYMAN et al., Plaintiffs,
Theodore I. COE et al., Defendants

The opinion of the court was delivered by: CURRAN

Plaintiffs are owners of an apartment building located on the west side of Sixteenth Street, N.W., between K and L Streets, directly opposite the main entrance to the Statler Hotel, in an area zoned Residential 90' 'D.' The premises are known as 1016 Sixteenth Street, N.W. They desire to convert the apartment building to an office building. Since the property is located in the aforementioned area this conversion cannot be accomplished unless the defendants, members of the Board of Zoning Adjustment, grant an exception for this purpose.

 Thereafter the defendants appealed to the United States Court of Appeals for the District of Columbia Circuit and the plaintiffs filed a cross appeal. On April 8, 1954 the Court of Appeals handed down the following order:

 'Whereas it appears from a memorandum filed April 6, 1954, in these appeals by George Hyman, et al., appellees in No. 11,476 and appellants in No. 11,477, that the Board of Zoning Adjustment, on April 2, 1954, announced its decision in four appeals, each involving the use or erection of an office building on 16th Street, Northwest, between H and M Streets, one to convert to office use an existing building at 1010 16th Street, one to erect a new office building at 821 16th Street, one to add a rear addition to an existing office building at 1108 16th Street, and one to erect a new office building at 1126 16th Street; and

 'Whereas the granting of these four exceptions to the existing zoning regulations and maps, together with the exceptions theretofore granted by the Board, may have changed the present character of the neighborhood and its future development so that the use of the property here involved as an office building may no longer adversely affect such character and development;

 'It is Ordered that these cases be remanded to the District Court with instructions to enter an order vacating the order of the Board of Zoning Adjustment heretofore entered and complained of and directing the Board to reopen the proceedings and reconsider the application in the light of the exceptions to the zoning regulations and maps already granted by it; and

 'For these purposes of remand the judgment of the District Court is hereby vacated.'

 Pursuant to the order of the District Court, the Board of Zoning Adjustment, on April 21, 1954, and again on January 19, 1955, heard further testimony in the matter of this appeal, and on April 19, 1955 issued its order again denying plaintiffs' application for a special exception.

 On January 23, 1956 plaintiffs filed in this Court a supplemental complaint for injunctive relief. On June 22, 1956 defendants filed a motion for summary judgment and on August 22, 1956 plaintiffs filed their motion for summary judgment. It is these motions for summary judgment that are now before this Court. The pleadings, admissions and affidavits on file show there is no genuine issue of any material fact.

 Plaintiffs' appeal, along with others, has been considered by the Board of Zoning Adjustment under the authority granted to it by the Zoning Act of 1938, as amended, D.C.Code 1951, 5-413 et seq., to consider appeals brought under Section XXIII, Part 2, Paragraph 29 of the Zoning Regulations of the District of Columbia. This regulation is as follows:

 'Part 2. -- Powers Relative to Exceptions and Special Questions.

 'Upon appeals the Board of Zoning Adjustment is hereby empowered to grant requests for the following special exceptions, when, in the judgment of the Board, such exceptions shall be in harmony with the general purpose and intent of the Zoning regulations and maps and will not tend to affect adversely the use of neighboring property in accordance with the zoning regulations and maps.'

 Pursuant to an Act of Congress zoning was first adopted in the District of Columbia in 1920, D.C.Code 1929, Tit. 25, 521 et seq. That Act provided for the establishment of a Zoning Commission empowered to adopt zoning maps and promulgate zoning regulations. The Commission was authorized to fix the zoning boundaries and to specify and limit the specific uses that could locate within the fixed zoning boundaries. The Commission could change the zoning boundaries as well as the uses located within the fixed boundaries, but there was little flexibility under the system to deal with the individual problems of the property owners. Spot zoning proved undesirable. So that more flexibility could be had under the zoning regulations and maps, and in order to establish machinery to deal with specific properties, Congress passed a new Zoning Act in 1938. Under that Act the Zoning Commission retained the power already vested in it to establish zoning boundaries and zoning regulations. A Board of Zoning Adjustment was established which the Commission could empower to make special exceptions to the provisions of the zoning regulations 'subject to appropriate principles, standards, rules, conditions, and safeguards set forth in the regulations' and to hear and decide requests for special exceptions in accordance with the provisions of the zoning regulations, D.C.Code, § 5-420. A special exception is part of the zoning plan and the instant case involves a special exception.

 The decisions of a zoning adjustment board are discretionary and should not be reversed by the Courts unless clearly arbitrary and unreasonable. Leventhal v. District of Columbia, 69 App.D.C. 229, 100 F.2d 94; Lewis v. District of Columbia, 89 U.S.App.D.C. 72, 190 F.2d 25; Selden v. ...

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