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DONOVAN v. CLARKE

October 17, 1963

James P. DONOVAN et ux., Plaintiffs,
v.
Frederick J. CLARKE et al., Defendants



The opinion of the court was delivered by: WALSH

This matter comes before the court on a complaint for a mandatory injunction to compel the Zoning Commission of the District of Columbia to rezone certain property owned by the plaintiffs from residential to commercial. This complaint was first heard in Civil Action No. 771-59 on December 5, 1961. That action was dismissed without prejudice on December 14, 1961, and remanded to the Zoning Commission with a directive from the court that it hold a hearing de novo. Said hearing was held as ordered on January 17, 1962, and the Commission again denied plaintiffs' request for commercial zoning.

Plaintiffs then filed the present complaint for a mandatory injunction, and this case was heard on March 27, 1963, and, subsequently, extensive briefs were submitted.

 The law is well settled that '(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 F.2d 505, 507 (1944). See, also, Lewis v. District of Columbia, 89 U.S.App.D.C. 72, 190 F.2d 25 (1951).

 In Lewis v. District of Columbia, supra 190 F.2d at 27, the Zoning Commission 'adopted the report and recommendation of the Zoning Advisory Council, which concluded that the proposed change was 'undesirable and unjustified." In that case the District Court and the Court of Appeals had before them findings of fact on which the Zoning Commission had based its determination. The reviewing court was not obliged to go to the merits of the issues presented to the Commission, but were able to decide if the determination was arbitrary and unreasonable on the basis of the rationale state by the Zoning Advisory Council and adopted by the Commission.

 In the instant case, the Zoning Advisory Council had offered no objections to the rezoning; but the Zoning Commission did not accept the recommendations of the Zoning Advisory Council, and rejected plaintiffs' petition without a reason being stated. This leaves the Court with no choice but to go to the merits, which is clearly improper, or, to remand to the Commission for findings of fact on which the determination was based.

 In addition, the plaintiffs herein submitted written interrogatories under Rule 33 of the Federal Rules of Civil Procedure, which, among other things, requested defendants to state their reasons for denying the petition for rezoning. The defendants filed objections to the interrogatories, but such objections were overruled by this Court on October 5, 1960, after being persuaded that, inasmuch as the Zoning Commission rejected the report of the Zoning Advisory Council without making known its reasons, the plaintiffs were entitled to the information requested in the interrogatories.

 The answers to the interrogatories revealed no insight into the reasons for the decision by the Commission. The ninth interrogatory requested as follows:

 'What was your reason for having voted to deny plaintiffs' request for a change in the zoning classification for their property, with other property lying on the North side of Bowen Road, Southeast, between 44th Place and 46th Street?'

 The reply to this interrogatory by defendant Welling stated:

 'My vote and opinion were based on the facts in the case and on the requirements of the zoning law and the zoning regulations.'

 Additional interrogatories pertaining to the reasons of the Commission were answered in an identical manner. These replies are not responsive to the interrogatories and offer no insight into the rationale for the conclusion of the Zoning Commission.

 In Robey v. Schwab, 113 U.S.App.D.C. 241, 307 F.2d 198 (1962), the Court of Appeals remanded a case to the Board of Zoning Adjustment for findings of fact which had persuaded the Board to arrive at its decision. Robey is distinguishable as the Board of Zoning Adjustment is required by section 8202.64 of the D.C. Zoning Regulations to give 'full reasons for its decisions', whereas there is no such requirement imposed on the Zoning Commission. However, in Robey, supra 307 F.2d at page 201, the court stated:


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