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07/24/90 DONALD TOWLES v. DISTRICT COLUMBIA BOARD

July 24, 1990

DONALD TOWLES, ET AL., PETITIONERS
v.
DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, ET AL., RESPONDENTS



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

Rogers, Chief Judge. Terry and Farrell, Associate Judges.

The opinion of the court was delivered by: Rogers

After two unsuccessful applications for a special exception to operate a parochial school at its church in a residential neighborhood, the Board of Zoning Adjustment (the Board) granted Rhema Christian Center's third application. The Board concluded that a material change of circumstances affecting the merits of the application had occurred since the previous unsuccessful applications and that the special exception would be in harmony with the general purpose and intent of the Zoning Regulations and, subject to certain conditions, not adversely affect the use of neighboring property. Petitioners, whose property either abuts or is within one block of the church, contend that the Board was precluded by res judicata and collateral estoppel from adjudicating the merits of Rhema's third application and, alternatively, that the Board's decision was not supported by substantial evidence in the record and violates petitioners' constitutional right to full enjoyment of their property. We hold that the Board's findings in support of its Conclusion that there has been a material change in circumstances affecting the merits of Rhema's third petition are unsupported by the record and, hence, its Conclusion of a material change in circumstances was an abuse of discretion. Accordingly, we reverse.

I.

Since 1981 Rhema Christian Center has been operating a parochial day school at leased space in the Faith United Church, three blocks away from its own church facilities at 4915 Sargent Road, N.E., located in an R-2 residential zoning district. Rhema, originally seeking to operate its school at its own facilities as an accessory use, was advised by the Zoning Administrator that it must first obtain a special exception from the Board of Zoning Adjustment. In 1982, the Board denied Rhema's first application for a special exception to use the church as a day school for eighty students and six staff. *fn1 The application included a proposal to use approximately 8,000 square feet of lot area for an outdoor play area and on-site parking. The Board ruled that Rhema had not met its burden of proof to show that the proposed enrollment came primarily from children residing in the neighborhood and that the program was a use reasonably necessary to the neighborhood, and further, the Board concluded that eighty students and six teachers would be objectionable to adjoining and nearby property because of noise, the number of students, and the close proximity to residential dwellings.

On May 22, 1984, Rhema filed a second application for a special exception permitting the church to operate a parochial day school with eighty students and six teachers, but without the previously proposed pre-school and adjacent lot uses, which the Board similarly denied. The Board found that the new application was not significantly different from the original application and that the proposed school would adversely affect the use of the neighboring property due to traffic and noise generated by the number of students in close proximity to residential dwellings. Rhema appealed to this court which affirmed the denial of the special exception petition. Rhema Christian Center v. District of Columbia Board of Zoning Adjustment, 515 A.2d 189 (D.C. 1986) (Rhema I).

On April 18, 1989, Rhema filed a third petition for a special exception to establish the parochial school for eighty children and a staff of six at its church facilities. The Board ruled that it was not precluded from reviewing the merits of Rhema's third petition because the record showed a material change of circumstances which affected the merits of the application. Those circumstances were (1) the passage of four and one half years since Rhema's second application; (2) the amendment on November 5, 1982 to the special exception criteria in the Zoning Regulations; (3) the substantial amendment of the parking regulations, effective March 1, 1985; (4) the change in the number and location of on-site parking spaces and use of outdoor areas from the original application; (5) the substantial development of church property since the original application in 1982; and (6) Rhema's operation of the school at a nearby location for about eight years "with no evident adverse impacts on residential properties adjacent to the cite." The Board concluded, therefore, that the petition should be granted, subject to certain conditions, because the proposed school would not result in any adverse impact on neighboring property. *fn2 Petitioners contend that there was not substantial evidence showing a material change in circumstances between Rhema's second application in 1984 and its third application in 1989 and that, therefore, the Board was precluded from adjudicating the merits of Rhema's third application.

II.

Generally, once a claim has been finally adjudicated, the doctrine of claim preclusion, or res judicata, prevents the same parties from relitigating the same claim, including any issue that either was or might have been raised in the first proceeding, and the doctrine of issue preclusion prevents the same parties from relitigating an issue actually decided in a previous, final adjudication, whether on the same or a different claim. Rhema I, 515 A.2d at 193. When a special exception is denied and the applicant, after a required waiting period, *fn3 resubmits the same or a substantially similar application, the applicant must demonstrate either that there has been a material change in conditions, such that the reasons for the previous denial no longer apply, or that the application does not involve the same claim. Id. at 194. The court explained:

When a material change of circumstances affecting the merits of the application has not occurred the application is not for a use that materially differs in nature and degree from its predecessor, the board of adjustment may not lawfully reach the merits of the petition. If it were otherwise, there would be no finality to proceedings before the board of adjustment, the integrity of the zoning plan would be threatened, and an undue burden would be placed on property owners seeking to uphold the zoning plan.

Id. at 194 (quoting Fisher v. City of Dover, 120 N.H. 187, 412 A.2d 1024, 1027 (1980)).

Our scope of review of the Board's determination that there has been a material change of circumstances is limited to whether there has been an abuse of discretion. See Silsby v. Allen's Blueberry Freezer, Inc., 501 A.2d 1290 (Me. 1985) (standard of review regarding substantive change of circumstances is abuse of discretion); see also Bennett v. City of Clemson, 293 S.C. 64, 358 S.E.2d 707 (1987) (zoning adjustment board's decision to consider subsequent application reviewable only for abuse of discretion); Mazza v. Board of Adjustment of City of Linden, 83 N.J.Super. 494, 200 A.2d 505 (1964), appeal dismissed, 47 N.J. 161, 219 A.2d 615 (1966) (same). The Board's findings of fact in support of that determination, however, must be "supported by reliable, probative and substantial evidence in the record as a whole, and . . . the Board's Conclusions flow rationally from these findings." *fn4 "There must be a demonstration of a rational connection between the facts found and the choice made [citations omitted]. Generalized, conclusory, or incomplete findings are not sufficient . . . . In short . . . there must be findings on each material fact with full reasons given to support each finding." Dietrich v. District of Columbia Board of Zoning Adjustment, 293 A.2d 470, 473 (D.C. 1972).

In Rhema I, the court summarized the two previous applications, and petitioners attached to their petition for review, without objection, a copy of the Board's decision denying the second application. *fn5 Board of Zoning Adjustment Application No. 14156, unpublished decision (November 20, 1984) (1984 Board Decision). Upon review of the record before the Board we conclude that the Board's findings do not support its Conclusion that there are material differences between the second and third applications. Rhema still seeks to operate a school for eighty students and six teachers, still confining the use of outside space to parking; the number of on-site parking places has been increased from five to ten, but on-site parking was not of concern when the Board denied the second application and hence its provision now is of doubtful relevance. Accordingly, to avoid the effect of preclusion, the Board could not rely on a change in the nature of the application but only on a change in material circumstances relating to the application. Furthermore, in view of the basis for its previous rejection of Rhema's second application, the changed conditions would have to relate directly to the matters that were of concern to the Board in the prior proceeding for the Board to grant the special exception. Rhema I, supra, 515 A.2d at 193-94 (applicant resubmitting same application must demonstrate that conditions have changed such that the reasons for the previous denial no longer apply).

Turning to each of the Board's findings in support of its Conclusion that there is a material change in the third application affecting the merits of the application, the first is the passage of time. This is irrelevant standing alone, once the threshold of a year has passed, except insofar as that circumstance is tied to other relevant circumstances. Id. at 193-94. Other than the implied significance of the passage of time to the Board's sixth finding, regarding Rhema's operation of the school at a nearby site for eight years, the Board's first finding lends no weight to its Conclusion of a material change between the third and prior applications. In any event, the Board has failed to "demonstrate the logical nexus between the facts relied upon [ -- the passage of time -- ] and the Conclusion reached." Dupont Circle Citizens ...


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