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JARROTT v. SCRIVENER

January 28, 1964

W. Smith JARROTT, Charles D. Lenhoff, et ux., Plaintiffs,
v.
Samuel SCRIVENER, Jr., William F. McIntosh, Arthur P. Davis, Charles C. Koones, Robert O. Clouser, Members of the Board of Zoning Adjustment and J.J. Ilgenfritz, Director of Licenses and Inspections, Defendants



The opinion of the court was delivered by: PINE

In this action plaintiffs pray for judgment declaring null and void an order of the District of Columbia Board of Zoning Adjustment, hereinafter referred to as the Board. They also seek an injunction directing the Board to set aside this order, and prohibiting the Director of Licenses and Inspections from issuing a building or occupancy permit relating to the property subject of this order.

This property hereinafter referred to as 'Bonnie Brae,' the present name of the estate, consists of approximately 16 acres of land improved by a large dwelling and situate in the outskirts of the District of Columbia near its Maryland border. The plaintiffs are owners of lands and premises immediately adjacent to 'Bonnie Brae.' Defendants are members of the Board and the Director of Licenses and Inspections, respectively.

 The plaintiffs' property and Bonnie Brae are located in what is known as an R-1 Zoning District. This is the most restrictive zoning classification in the District of Columbia, and will hereinafter be discussed in some detail.

 The owner of Bonnie Brae contracted to sell it to one Martin M. Decker, who on March 28, 1963, filed 'an appeal * * * for exception' to the zoning regulations to permit the erection of a building to be used as an embassy and chancery by the government of the USSR, to which the property would be conveyed.

 Under the revised plans submitted by appellant, the existing dwelling would be demolished, and a building would be erected which would contain approximately 71,000 sq. ft. of floor space above grade, and, with garage and other usable underground space, would have a total of approximately 91,000 sq. ft. It would contain approximately 140 rooms devoted to chancery purposes and approximately 17 rooms as a residence for the Ambassador, his immediate family and servants. Off street outdoor parking area for approximately 145 cars would be provided. The structure would accommodate approximately 125 persons, including servants, the immediate family of the Ambassador, and chancery personnel.

 A public hearing on this appeal was set for April 18, 1963, at which time the appellant before the Board and those opposed to the granting of the appeal were heard. The appeal was then taken under consideration by the Board, and apparently revised plans were requested by the Board and submitted by appellants. Thereafter a second public hearing was scheduled and held on June 12, 1963. Petitions and letters were filed and property owners were heard in opposition.

 On June 18, 1963, the Zoning Commission made its findings of fact and rendered its opinion in which it held, by vote of three to two, that the appeal was granted on the basis of plans submitted at the second hearing, but subject to approval by the Board of detailed plans, architectural and screening, prior to issuance of the permit, and also subject to the condition that a fence, if provided, should be placed at a certain location, and that tree removal should be minimal and replacements made where practicable.

 Thereafter this action was instituted.

 Plaintiffs claim that they were denied a fair and impartial hearing 'for the reason that, during the course of proceedings, and prior thereto, all members of the Board were subjected to improper pressure by means of letters from Dean Rusk, Secretary of State, and Charles Horsky, Advisor for National Capital Affairs, the White House, and by oral communications, by telephone or otherwise, made by Horsky and Pedro Sanjuan of the State Department and General Clarke, Engineer Commissioner of the District of Columbia to the Board members Scrivener, Clouser and McIntosh, all of which persons, except for the Board members, being persons highly placed in the governments of the District of Columbia and the Executive Branch of the U.S.' On the basis of this assertion plaintiffs claim that the order of the Board is a nullity.

 There is no statutory appeal from the orders of the Board and this action comes before this court for relief, injunctive and otherwise, under its general equity powers. Ordinarily, a review by the court of the decision of the Board would be limited to the Board's record of proceedings before it, and the court would not be permitted to hear evidence dehors that record. But in this case, where the integrity of the Board's decision is questioned, the court may go outside the Board's record and receive independent evidence, as was done in this case. That the court may do so is conceded by defendants.

 The foregoing gives the posture of the case procedurally.

 Before reviewing the evidence and in order to provide a clearer understanding of the contentions of plaintiffs, the relevant statutes and the participants should be put in perspective.

 The Constitution of the United States in Art. I, ยง 8, provides that the Congress shall have power to exercise exclusive legislation over the District of Columbia and to make all laws necessary and proper for carrying this and other powers into execution. Pursuant thereto, Congress authorized the President, by and with the advice and consent of the Senate, to appoint two persons, who, with an officer of the Corps of Engineers of the United States Army, shall be Commissioners of the District of Columbia. *fn1" Congress further provided that the Engineer Commissioner may in the discretion of the President be detailed from among the officers of this Corps. *fn2" It vested executive power in these Commissioners, *fn3" and authorized them to remove from office and make appointments to any office under them. *fn4"

 In 1920 Congress created a Zoning Commission for the District of Columbia consisting of the Commissioners of the District of Columbia, Director of the National Park Service and the Architect of the Capitol. *fn5" Generally stated, it is empowered by statute to regulate the location, height, bulk, number of stories and size of buildings, the percentage of lot which may be occupied, the density of population and the uses of the buildings and land for trade, industry, residence, recreation, public activities and other purposes. Pursuant thereto, the Commission is authorized to divide the District into zones of such number, shape, and area, as the Commission may determine, and within such districts it may regulate the erection, construction, reconstruction, alteration, conversion, maintenance, and uses of buildings and structures and the uses of land. *fn6" Congress also provided that the regulations made pursuant thereto shall be in accordance with a comprehensive plan and designed to lessen street congestion, to secure safety from fire, panic and other dangers, to promote health and the general welfare, to provide adequate light and air, to prevent the undue concentration of population and the overcrowding of land, and to promote such distribution of population and of uses of land as would tend to create conditions favorable to health, safety, transportation, prosperity, protection of property, civic activity and recreational, educational and cultural opportunities. *fn7"

 Under this authority, the Zoning Commission has promulgated regulations for certain zones or districts, into which it has divided the District. Among them is one classified as 'R-1.' This district, under the regulations, 'is designed to protect quiet residential areas now developed with one family detached dwellings and adjoining vacant areas likely to be developed for such purposes,' and to 'stabilize such areas and to promote a suitable environment for family life.' *fn8" (Italics in regulation) This is the most restrictive of all the zoning classifications. Plaintiffs' property and Bonnie Brae, as well as the large number of persons objecting to the appeal own property in this zoning classification, and are in the same area.

 Congress in 1938 created the Board of Zoning Adjustment. It is an adjunct of, and in a sense complementary to, the Zoning Commission. It is composed of five members, who are defendants herein, appointed by the Commissioners of the District of Columbia, namely, one member of the National Capital Planning Commission, or a member of the staff thereof to be designated by such Commission, one member of the Zoning Commission, or member of the staff thereof to be designated by such Commission, and three other members each of whom shall have been a resident of the District of Columbia for at least three years immediately preceding his appointment and at least one of whom should own his own home.

 This Board is given power, by the statute creating it, to hear and decide, in accordance with the provisions of the regulations of the Zoning Commission, supra, requests for special exceptions upon which the Board is required or authorized by the regulations to pass. *fn9" The ...


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