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12/03/90 ANGENE G. RAFFERTY v. DISTRICT COLUMBIA

December 3, 1990

ANGENE G. RAFFERTY, ET AL., PETITIONERS
v.
DISTRICT OF COLUMBIA ZONING COMMISSION, RESPONDENT



On Petition for Review of a Decision of the District of Columbia Zoning Commission.

Ferren, Steadman, and Schwelb, Associate Judges.

The opinion of the court was delivered by: Schwelb

Petitioners Angene G. Rafferty and Joseph R. Rafferty have asked us to review an order of the District of Columbia Zoning Commission denying their application to modify the architectural plans of a previously approved planned unit development (PUD) so that they might construct a two-story addition to the rear of their house. Their most important contention *fn1 is that the Commission should be precluded by principles of estoppel from withholding its assent because the District issued a building permit to the Raffertys authorizing the proposed construction and because the PUD restrictions were not properly recorded. Concluding that the Commission has failed to make findings of fact or Conclusions of law with respect to the issue of estoppel, as required by D.C. Code § 1-1509(e) (1987), we vacate its order and remand the case for further proceedings.

I

A PUD is a development in which the density and height restrictions which would otherwise be imposed by the zoning regulations are relaxed for the purposes, among others, of offering a variety of building types with more attractive and efficient overall planning. See generally Dupont Circle Citizens Ass'n v. District of Columbia Zoning Comm'n, 426 A.2d 327, 331-32 (D.C. 1981). The PUD scheme permits the development of a large area as a single unit. Id. at 332. In exchange for the flexibility which the concept provides, the developer must create a "synchronized amalgam of living, institutional, and commercial facilities with diversity in buildings and structures that is in the spirit of the Zoning Regulations." Id., citing 5 P. ROHAN, ZONING AND LAND USE CONTROLS § 32.01 [3] (1978).

In 1977, in Order 195, the Zoning Commission approved a PUD for a site on Massachusetts Avenue, N.W., approximately three blocks northwest of American University. The development was to consist of town houses in an area which was zoned for single-family homes. Order 195 provided that the final design of the buildings was to conform to certain specified architectural drawings. These PUD restrictions, however, were not recorded on the zoning map as required by 11 DCMR § 2407.4 (1987).

In 1983, the Raffertys, a married couple now in their sixties, purchased a town house within the PUD. In 1987, they decided to add a bedroom, bathroom and adjoining deck to the main floor of their house and a garage to the bottom floor. They applied to the Department of Consumer and Regulatory Affairs (DCRA) for a building permit and, on February 26, 1988, a permit was duly issued. Assuming in light of the issuance of the permit that the work could lawfully proceed, the Raffertys made an initial payment of $20,000 to the contractor whose services they had retained for the proposed construction. Work was promptly begun on the foundation.

On June 21, 1988, in response to a complaint from a neighbor's attorney, the DCRA issued a stop work order. This action was taken as a result of the discovery by District officials that the permit had been erroneously issued because the Rafferty property was part of an approved PUD. *fn2

On July 20, 1988, the Raffertys submitted an application to the Zoning Commission to modify the approved PUD plans so as to permit the Raffertys to complete work on the proposed addition. At the initial Commission hearing on August 8, 1988, the Commissioners expressed concern that it might be unfair to enforce the PUD restrictions and to prevent the proposed construction, and that principles of estoppel and laches might apply. The Discussion included the following:

CHAIR BENNETT: If we make a mistake in allowing a building permit to be issued, and she in this case proceeded with construction and then had the stop order applied to her case, and we decide that we cannot in good conscience and for whatever reason waive rules and modify and whatever, then doesn't the doctrine of estoppel and laches come into play?

MR. WILLIAMS: I am very sympathetic to the question that Ms. Bennett raised. . . . All we know is that a stop-work order got issued . . . . I think they got a permit and in good reliance. I mean, my gosh, they got a permit. Not everyone even bothers with that little nicety . . . . I know, and everything that to me sounds like the usual recitals on the doctrines of laches, estoppel, reliance and I guess I am curious as to why -- I think we need to help these people in some fashion . . . . I am afraid there is going to be a pile of mud there, unless they can get relief on the other side, which identify with laches, reliance and estoppel. They made a substantial investment, they are out $25,000, piles of mud, inconvenience, et cetera. And we can take care of it in five minutes.

MR. PARSONS: We have to do something to relieve a patently unfair situation that has occurred to you . . . . What you are hearing from among the Commissioners today is that you will probably get a granting of what you are asking for . . . . I am convinced they have been messed over by the City enough . . . . I think you can make your granting of this application based on the fact that the harm was done and that they expended funds. An error was made by the District. Say we're not going to do it for anyone else.

The Commissioners nevertheless made it clear that public notice and a hearing would be necessary before the Commission could make a final decision, and that the interests of other individuals might also be affected. A hearing was scheduled for November 3, 1988.

Prior to the hearing, several PUD residents communicated to the Commission their opposition to the Raffertys' plan. There was concern that the proposed addition would cut into the open space in the center of the block, impair the ambiance and design of the PUD, reduce light and air to the patios and gardens of nearby houses, and interfere with the privacy of other residents. *fn3 On October 28, 1988, the District's Office of Planning, which had previously supported the Raffertys, issued a report substantially sustaining the validity of these concerns. Advisory Neighborhood Commission 3-D, whose jurisdiction includes the site of the PUD, reported that the ANC had unanimously voted to recommend that the application be denied. The Commission also received letters of support for the Raffertys from several residents of the PUD, and the District's Office on Aging urged that the Raffertys' age and medical needs be considered in determining whether the proposed addition to their house should be authorized.

Upon motion of the Raffertys, who wished to have more time to respond to the opposition which had been generated, the evidentiary hearing was continued from November 3 to 17, 1988. On November 9, 1988, the Raffertys' neighbors, Kyle and Kimberly Samperton, who were opposed to the proposed construction, requested party status in the proceedings before the Zoning Commission. Their request was promptly granted. *fn4

At the November 17, 1988 hearing, Mrs. Rafferty testified that approval of the application would serve the objective of making available housing suitable for elderly persons. She maintained that other housing with a first floor bedroom was not available in her neighborhood. She stated that she and her husband had understood when they purchased their home that there were no PUD restrictions which would prevent them from building an addition. She claimed that the proposed construction would not reduce her neighbors' privacy because the neighbors' yard was already readily visible from the windows of other existing houses. Mrs. Rafferty also maintained that any shading effect on neighbors would be limited to certain morning or late afternoon hours at certain times of the year. She complained that she and her husband had only received one day's notice of the meeting on ANC 3-D and that the meeting was dominated by a group of opponents whose views were not necessarily representative of other residents of the area. Finally, Mrs. Rafferty and her counsel argued that approval of their application would not set a precedent for other modifications of the PUD because it was not practically feasible for most PUD residents to construct substantial additions to the rears of their houses, and because the Raffertys' case presented considerations of estoppel which probably would not arise in the event that any other residents were to attempt to build additions in the future.

Opponents of the application generally testified in a manner consistent with the written submissions which we have described above. A representative of the Office of Planning reiterated the basic position taken by the Office in its October 28 report, although he acknowledged that the report had in some respects overstated the negative effects of the proposed addition. This witness also conceded on cross-examination that the other residents' privacy concerns might be mitigated or eliminated if the Raffertys did not construct a deck (as they had originally planned) and if the proposed addition had no side windows. Mrs. Rafferty testified that the Raffertys were willing to forego the deck and to make other accommodations to their neighbors' concerns.

On January 9, 1989, the Commission issued a decision denying the Raffertys' application. The Commission stated that it agreed with the views expressed by the Office of Planning, by ANC 3-D, by the Sampertons, and by other persons opposed to the modification of the PUD. In ...


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