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HOT SHOPPES, INC. v. CLOUSER

July 15, 1964

HOT SHOPPES, INC., a corporation, Plaintiff,
v.
Robert O. CLOUSER, Samuel Scrivener, William F. McIntosh, Arthur P. Davis, William S. Harps, Individually and as Members of the District of Columbia Board of Zoning Adjustment, Defendants



The opinion of the court was delivered by: YOUNGDAHL

Plaintiff, Hot Shoppes, Inc., a Delaware corporation engaging in the restaurant business in the District of Columbia, has brought this action for declaratory judgment and injunctive relief seeking judicial review of a decision of the defendants, the Board of Zoning Adjustment of the District of Columbia. The case came on for trial without a jury.

By virtue of building permits issued in March and July of 1959, plaintiff was authorized to construct a restaurant on leased property at 3250 Pennsylvania Avenue., S.E., in the District of Columbia. The restaurant, known as 'Mighty Mo,' has counter, table, and curb (or drive-in) service. Plaintiff commenced its operation at this location in October, 1959. The cost of the building and equipment was in excess of $ 200,000.

 At the time the building permits were issued and for years prior thereto, § 5101.33(q) of the Zoning Regulations of the District of Columbia permitted the operation of drive-in restaurants in C-1 districts, the zoning classification of plaintiff's property. The C-1 classification consists of a neighborhood shopping center designed to accomplish two purposes: 'First, it will provide convenient retail and personal service establishments for the day-to-day needs of a small tributary area, with a minimum impact upon surrounding residential development, and secondly, it will accommodate a major portion of existing strip commercial developments.' § 5101.1, Zoning Regulations. On July 11, 1961, the Zoning Commission of the District of Columbia amended § 5101.33(q) of the Regulations to exclude 'a drive-in type restaurant,' but to include lunch counters, lunch rooms, cafes, and restaurants. From that moment on, plaintiff's restaurant, housed in a structure which fully conforms to all zoning regulations, was used for purposes which in part conformed and in part did not conform to the requirements of the Regulations: the table and counter service inside the restaurant continued to be conforming uses, but the drive-in service outside became a nonconforming use.

 As a nonconforming use, the drive-in service became subject to certain limitations as well as certain protections provided by Congress:

 'The lawful use of a building or premises as existing and lawful at the time of the * * * adoption * * * of any regulation adopted after June 20, 1938, * * * may be continued although such use does not conform with the provisions of such regulation, provided no structural alteration, except such as may be required by law or regulation, or no enlargement is made or no new building is erected. The Zoning Commission may in its discretion provide, upon such terms and conditions as may be set forth in the regulations, for the extension of any such nonconforming use throughout the building and for the substitution of nonconforming uses.' D.C.Code § 5-419. (Emphasis added.)

 The drive-in service could thus continue, but no new building could be erected to house the nonconforming use, no enlargement could be made, and only those structural alterations would be permitted 'as may be required by law or regulation.' The Zoning Regulations have amplified this section to mean, in part, that: 'Ordinary repairs, alterations, or modernizations may be made to a: Conforming structure or portion thereof devoted to a nonconforming use provided: (a) No structural alterations are made thereto except those required by other municipal law or regulations; and (b) The nonconforming use is not extended except in accordance with Section 7105 (which provides that a nonconforming use of land may not be extended in land area and that a nonconforming use of a structure may be extended into other existing portions of the structure only if approved by the Board of Zoning Adjustment).' §§ 7106.1, 7106.11, Zoning Regs.

 On July 17, 1962, after an inspection, officials of the Health Department of the District of Columbia directed plaintiff to store its commissary carts under cover. Plaintiff sought a building permit approving plans which would change the present fenced-in structure to a structure completely enclosed with four sides and a roof, and architecturally the same as the main restaurant building.

 Plaintiff's request for a building permit was turned down on the ground that the proposed structure provided for the extension of a nonconforming use and was contrary to the Zoning Act and Regulations. Plaintiff appealed to the Board of Zoning Adjustment as provided in D.C.Code § 5-420. Plaintiff's case was heard on July 18, 1962 and November 14, 1962. On November 20, 1962, the Board issued an order denying the appeal. Plaintiff was notified of this action on January 15, 1963. The suit in this court followed.

 The order of the Board of Zoning Adjustment makes four findings of fact, as follows: First, that under the new Zoning Regulations, the drive-in facilities of the restaurant constitute a nonconforming use; Second, that the restaurant has been directed by the Health Sanitation Department to keep its commissary carts under cover, which carts are described essentially as set forth by the Court above, including their storage in 'a fenced enclosure' 'at the location under review * * *;' Third, that the Zoning Act (specifically D.C.Code 5-419, as set forth by the Court above) provides that a non-conforming use may be continued provided no structural alterations are made except such as may be required by law and regulation, or no enlargement is made or no new building is erected, and that 'in this case the addition contemplated constitutes an enlargement;' Fourth, that there was objection (from persons residing in the vicinity) to the granting of the appeal registered at the public hearing.

 The order further specified that the above findings of fact were made 'as the result of an inspection of the property by the Board, and from the records and the evidence adduced at the hearing * * *.'

 The order then set forth the Board's 'opinion':

 'We find nothing in this evidence which would justify a conclusion that this nonconforming use should be treated any differently than the many thousands of such uses existing elsewhere in the District of Columbia. The allegation of hardship predicated upon a contention that the addition was required by other law or regulation is not supported by the facts. The only conclusion reached by health inspectors is that the equipment complainted of has to be under cover and not that a new addition is required to contain it. Since it is obvious that the equipment can be placed somewhere inside the existing structure or perhaps other operational arrangements made, it is our conclusion that appellant has failed to sustain its burden of proof that a hardship within the meaning of the law does in fact exist. It is our conclusion also that the relief sought cannot be granted without substantial detriment to the public good and without substantially impairing the intent, purpose and integrity of the zone plan as embodied in the Zoning Regulations and map.'

 On the basis of the above findings of fact and opinion, the Board denied the appeal, with ...


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