is greater discretion vested in the Board in granting or denying variances than there is in determining whether 'error' has been committed by any official, particularly where, as here, the alleged error was one of statutory interpretation. Plaintiff's primary claim is that the inspector of buildings, to whom plaintiff was required to apply for a building permit, D.C.Code § 5-422, erroneously denied such permit as a matter of law. D.C.Code 5-420 gives 'any person aggrieved * * * by any decision of the inspector of buildings granting or refusing a building permit * * *' the right to take an appeal to the Board of Zoning Adjustment, which in turn has the power to hear and decide appeals where 'error' is alleged; to hear and decide requests for special exceptions; and to authorize variances. It was the first of these subsections which plaintiff should have invoked, as well as the third.
Since it is required of this court that 'all pleadings shall be so construed as to do substantial justice,' Rule 8(f), Federal Rules of Civil Procedure, and since the Board construed the pleadings before it as involving a discretion which was only an alternative remedy which it need not have reached, this Court will instruct the Board in its further proceedings to consider plaintiff's request, first under its appellate jurisdiction to determine 'errors,' and only if it then becomes necessary, under its original jurisdiction to grant or deny variances.
In determining the case as an appellate matter, the Board should be aware that the commissary carts which are the subject of the Health Department's order are used to further both the restaurant's conforming uses (table and counter service) and its nonconforming use (curb service); that the restaurant has the statutory right to continue its nonconforming use utilizing the same floor and land area as such nonconforming use presently occupies; and that any complaints on the part of neighbors to noise or other disturbances are wholly immaterial to the initial issue before the Board.
The Board is therefore instructed that if it finds as a fact that there is not room inside the restaurant to store the commissary carts, plaintiff is entitled to the building permit as a matter of law since the proposed structural alteration would thereby be 'required' by the order of the Health Department within the meaning of D.C.Code § 5-419.
If, however, the Board finds that there is room inside the restaurant to store the commissary carts, the Board may then consider plaintiff's application as a request for a variance under subsection (3) of D.C.Code § 5-420, which would then require the Board to determine whether plaintiff has established any 'difficulties or hardship' which would, consistently with the integrity of the zoning plan and the public good, support the issuance of a variance to permit the building of the proposed structural alteration.
The case will therefore be remanded to the Board of Zoning Adjustment, for further proceedings consistent with this opinion.
This memorandum shall be considered as findings of fact and conclusions of law pursuant to Rule 52(a), Federal Rules of Civil Procedure.