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DONOVAN v. CLARKE

December 13, 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 defendants' motion to vacate the Order of October 16, 1963, and enter an order granting judgment to either plaintiffs or defendants, or to certify that Order to the United States Court of Appeals for the District of Columbia Circuit for review under 28 U.S.C.A. § 1292(b).

The Order of October 16, 1963, remanded the case to the Zoning Commission of the District of Columbia for findings of fact to support the Commission's denial of plaintiffs' petition for the commercial zoning of property located at the northwest corner of Bowen Road and 46th Street, S.E., and adjoining lots at 4510 Bowen Road, S.E.

 This Court so ordered due to the fact that no reasons were stated by the Commission for its denial of the rezoning petition. A further confusing factor was the initial report by the Zoning Advisory Council prior to the 1958 hearing which offered no objection to the proposed rezoning. However, the Zoning Commission did not accept the recommendation of the Council and summarily rejected the plaintiffs' petition.

 Subsequent thereto, the case came on for hearing and in 1961 Judge Alexander Holtzoff of the United States District Court for the District of Columbia remanded the case for a hearing de novo in that a person not a member of the Zoning Commission had sat on the panel when the petition was considered in 1958.

 Prior to the new hearing, the Zoning Advisory Council submitted an amended report, which set forth the earlier recommendation, but then changed the recommendation and stated that the best use of all improved properties under consideration 'is continued use for single family occupancy.' However, in an apparent inconsistency, the new report further stated that the unimproved adjoining property, also under consideration and owned by plaintiffs, was suitable for either a small office building or low density apartment, and offered no objection to an R-5-A classification for the unimproved property.

 The Zoning Commission again summarily denied the petition without stating any reasons and a complaint for a mandatory injunction was filed. This Court was then faced with the improbable task of ascertaining whether the action by the Zoning Commission was justified or was arbitrary.

 This Court was of the opinion that with the record in this confused state, a statement of the rationale for the denial of plaintiffs' petition would clarify the situation and assist the court in arriving at a determination, relying in part on Robey v. Schwab, 113 U.S.App.D.C. 241, 307 F.2d 198, 202 (1962).

 Based on this assertion, this Court will grant the motion of defendants and vacate the Order of October 16, 1963, and will further rule that the denial of plaintiffs' petition was arbitrary and capricious, and order the property rezoned commercial.

 In the instant case, the preponderance of the evidence favored rezoning. The proponents fairly established that the property is not suitable for a residential classification and there was no showing that a commercial classification would be unsuitable. A recent case in point was decided by the Maryland Court of Appeals in The Mayor and Council of Rockville v. Cotier et al., 230 Md. 335, 187 A.2d 94 (1963). At page 97 of 187 A.2d, the court stated:

 'Here we think that the action of the City which purported to be and, we think, was rezoning (sic) was arbitrary, discriminatory and unreasonable. It flew in the face of facts developed at the hearing and, without any showing of adequate cause therefor, it deprived the appellees of the use of part of their property for which it was best suited.'

 The primary issue before this Court is stated in Leventhal v. District of Columbia, 69 App.D.C. 229, 100 F.2d 94, 95 (1938):

 'Accordingly the question on this appeal is whether the facts alleged in the plaintiffs' bill, if taken as true, show beyond debate that the present residential zoning of ...


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