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April 9, 1990


Petition for Review of an Order of the District of Columbia Board of Zoning Adjustment

Before Terry, Steadman, and Farrell, Associate Judges.

The opinion of the court was delivered by: Per Curiam


Petitioners challenge a decision of the District of Columbia Board of Zoning Adjustment (the Board) that proposed Lot 39, Square 1995, owned by petitioners, does not meet the 50-foot minimum average width requirement for a lot situated in an R-1-B zoning district, as required by 11 DCMR § 401.3 (1987). Petitioners contend primarily that the Board acted arbitrarily and capriciously in concluding that the method by which the Zoning Administrator measured the proposed lot--using a formula for measuring irregularly shaped lots employed by that office since 1977 *fn1--yielded an "absurd" and impermissible result as applied to Lot 39, because the calculation depended upon "the addition [to the rear of the lot] of an irregular panhandle-like configuration creating unbuildable portions of lot in order to show the final average width." *fn2 Bearing in mind our obligation to uphold the Board's interpretation of a zoning regulation unless that construction is "plainly erroneous or inconsistent with the regulation," George Washington Univ. v. District of Columbia Bd. of Zoning Adjustment, 429 A.2d 1342, 1348 (D.C. 1981), quoting Udall v. Tallman, 380 U.S. 1, 16-17, 13 L. Ed. 2d 616, 85 S. Ct. 792 (1965), we affirm the Board's order.

We reject first petitioners' argument that the Board exceeded its jurisdiction because it reversed the Zoning Administrator's ruling even though the intervenors did not allege and the Board "did not find that the Zoning Administrator's interpretation of the definition of lot width was erroneous or inconsistent with the Zoning Regulations." To the contrary, the Board found that the Zoning Administrator's "method of calculating the lot width resulted ing an erroneous measurement" and that the proposed Lot 39, as measured, did not "truly a minimum average width of 50 feet . . . ." *fn3 Having reached this Conclusion, the Board was obliged to reverse the Zoning Administrator's ruling. See Keefe Co. v. District of Columbia Bd. of Zoning Adjustment, 409 A.2d 624, 625 (D.C. 1979) ("It is the responsibility of the BZA to interpret the regulations"). We thus have before us an order of the Board appropriate for review. D.C. Cede § 1-1510 (a) (1987).

Petitioners' argument that the Board acted arbitrarily because it applied an "inherently subjective" standard in finding Lot 39 to be incompatible with the minimum average width requirement is also unavailing. *fn4 The upshot of petitioners' argument is that the Board is required to accept any configuration of a lot so long as the Zoning Administrator's normal method of measuring irregularly shaped lots, when applied to it, yields an average 50-foot width. We do not think the Board's authority can be hamstrung in this way. The regulation requires that "the width of the lot shall be the average distance between the side lot lines." 11 DCMR § 199 (emphasis added). In construing the regulation, the Board could reasonably determine that each measurement of width along the length of the lot (front to back) should at least roughly approximate the average and that, conversely, the computed average should not depend on "the addition of panhandle . . . does not significantly contribute to the required average lot width." The Board's concern that the needed flexibility in treating irregularly shaped lots not produce "distorted average" and hence "absurd results" lies well within its primary jurisdiction in administering the zoning laws. Stated otherwise, the Board must have authority to reject subdivided lots that reach minimum width requirements only by unnatural application of an otherwise valid method of measurement. We thus find no reason to reject as arbitrary or capricious the Board's finding that Lot 39 did not have a true minimum average width of fifty feet, as required by the regulation. *fn5

We find a similar lack of merit in petitioners' claim that the Board has retroactively applied a "new interpretation of average lot width." Regardless of the method used by the Zoning Administrator since 1977, neither the Board nor this court has approved a single method for measuring oddly configured lots or held that a single measurement must be used in all circumstances, no matter how unnatural the result. In Draude v. District of Columbia Bd. of Zoning Adjustment, 527 A.2d 1242, 1253 (D.C. 1987), we stated that the Board may "apply different standards to different situations if each standard is consistent with the regulation and the situations are different in a way that makes it reasonable to use different criteria." To paraphrase Draude, in this case, the Board found "the situations [as between petitioners' lot and other irregularly shaped lots] . . . different" in a way that made unreasonable the application of a measurement tool valid for many such lots.

Finally, there is no substance to petitioners' claim that "the District" is estopped from seeking reversal of the Zoning Administrator's ruling given petitioners' good faith reliance upon it. It is the Board, not the Zoning Administrator, which has final administrative responsibility to interpret the zoning regulations. See D.C. Code § 5-424 (g)(4) (1988); Keefe Co. v. District of Columbia Bd. of Zoning Adjustment, supra, 409 A.2d at 625. Petitioners were aware of the 50-foot minimum width requirement when they purchased the property in question. Their previous application for a variance to permit building of three houses on the property had been denied. That they nonetheless made commitments for architectural plans on receiving the Zoning Administrator's ruling, despite knowledge of the neighborhood opposition to their plans, invites application of the "self-created hardship rule," see Foxhall Citizens Ass'n v. District of Columbia Bd. of Zoning Adjustment, 524 A.2d 759, 761 (D.C. 1987) (variance inappropriate when circumstances rendering property incapable of use in accordance with land use restrictions are caused or created by the landowner), and certainly precludes application of estoppel given the likelihood that the Administrator's ruling would be appealed. See Interdonato v. District of Columbia Bd. of Zoning Adjustment, 429 A.2d 1000, 1003-04 (D.C. 1981) (party cannot justifiably rely on non-final BZA action still subject to review). *fn6


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