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December 15, 1992


On Petition for Review of Decision of the Board of Zoning Adjustment of the District of Columbia.

Before Rogers, Chief Judge, and Steadman and Farrell, Associate Judges.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge: Petitioner Ralph Davidson *fn1 appeals the decision of the Board of Zoning Adjustment that his poolhouse is not an accessory building under the zoning regulations and must therefore be modified. He contends that the Board's decision is arbitrary and capricious. We affirm.


In 1990, the Davidsons began major renovations on their property at 4524 Garfield Street, N.W., including replacing an existing poolhouse near their swimming pool with a larger poolhouse. Construction of the new poolhouse began in the summer, without a building permit. In August, after the Davidsons' architect showed the plans for the poolhouse to intervenor Tyrus Barre, who is the Davidsons' neighbor at the adjacent property at 2811 Foxhall Road, N.W., Mr. Barre contacted the Permit Branch of the Department of Consumer and Regulatory Affairs. On August 17, 1990, the Davidsons applied for a building permit by submitting plans and an application to the Permit Processing Division.

The plans described the poolhouse as a two story building. The upper story contained two rooms described as bedroom or office space, and consisted of approximately 350 square feet. The first floor included a living room with a fireplace, a kitchen with a microwave oven, dishwasher, and icemaker, and a "bedroom/office." The entire structure was approximately seventeen feet high (excluding the three feet to the top of the chimney stack). The building was 780 square feet in area and only 1.3 to 1.7 feet from the rear property line, which borders the Barres' property.

The Zoning Division of the Department of Consumer and Regulatory Affairs approved the Davidsons' application on September 4, 1990. The permit was subsequently revised to reflect electrical, mechanical, and plumbing work, and was reissued on September 11. Mr. Barre again contacted the Consumer and Regulatory Affairs Department, which decided to investigate possible zoning violations and issued a stop work order on September 14. Thereafter, a series of meetings ensued between the Davidsons' architect, Mr. Barre and his attorney, and District government officials. The Davidsons submitted revised plans to the department shortly after a September 28, 1990 meeting. A stop work order was issued on October 10, and further revisions were made to the plans.

The revised plans did not actually change the floor plans but did rename many of the rooms. The rooms on the upper floor were referred to as "storage" instead of office or bedroom space, and rooms on the first floor were redesignated as the "pool room," the "changing and exercise room," and the "recreation/storage room." Also, the upper area was to be reached by a ladder rather than stairs. The height of the ceilings on the second level was also reduced to six feet five inches, one inch less than the six feet six inch minimum for a story or level. In addition, a retaining wall, approximately two feet high, was added on the side of the poolhouse facing the main house, raising the finished grade; measured from the top of the new grade the height of the pool house is fourteen feet nine and one-half inches, just under the fifteen foot maximum for accessory buildings. *fn2 The grade "slopes downward" on the side of the poolhouse facing the Barres' property. Because trees have been removed, the poolhouse is easily visible from the Barres' property.

The Zoning Administrator issued a building permit on October 15, but another stop work order was issued, followed by another permit on October 21. *fn3 After an inspection of the property on October 22 by department officials, including the Zoning Administrator, an electrical work permit was issued on November 10 for electrical outlets, an electric range, heating and air conditioning; a revised permit, omitting the range, was issued on November 28.

The Barres appealed the issuance of the building permit to the Board of the Zoning Adjustment on the ground that the poolhouse was "of such a large size . . . not customarily incidental to a single-family use as required by the Zoning Regulations." At the hearing before the Board, Mr. Barre testified about his efforts to stop construction of the poolhouse so close to his property line, claiming that to conform with the zoning regulations a poolhouse of that size had to be twenty-five feet from his property line. He described the poolhouse as a complete single family dwelling "in every regard."

The Barres also presented the testimony of Charles B. Soule, an expert architectural witness, who had inspected the poolhouse and the final plans for it. Observing that the poolhouse was "so much larger than any poolhouse structure that I had ever done myself, or ever seen anywhere," Mr. Soule described it as containing 1,275 square feet of floor space, with a second floor with two rooms large enough for bedrooms, and a main room on the ground floor with 894 square feet, including a bedroom, "a changing or exercise room," a kitchen, a closet, and a bathroom. Mr. Soule thought that the space on the first floor "called recreation/storage room . . . would make a nice bedroom." There is also a "large stone fireplace which pierces the ceiling" in a "nearly 900 square foot room . . . called the pool room." In his opinion, the building was not "in the classification of what should be a poolhouse, or what should be contained in a poolhouse."

Advisory Neighborhood Commission 3D appeared in support of the Barres' appeal. The commission took the position that "the original permit should never have been issued under the guise of an accessory building, the structure was too tall; its size, mass and bulk was not appropriate for the intended use." In its view, the new poolhouse was "intended to be an integral part of the family structure (main dwelling), not incidental to it," and therefore not an accessory building. The commission, like Mr. Soule, saw the upstairs space as "viable second story usage areas," and not merely as storage space. *fn4

In addition to letters from neighbors and a three-page petition in support of the appeal, one neighbor appeared at the hearing to support the appeal on the ground that the poolhouse was too large and was not "routine, regular, or customary." The Wesley Heights Historical Society also submitted a statement in support of the appeal. This statement referred to a zoning overlay proposal, meant to preserve the character of the neighborhood, which was pending before the Zoning Commission and had been developed as the result of ongoing study and review of the zoning regulations with professional assistance. During this process, the statement indicated, there had been no indication that "there is any possibility that a structure of the size, type and obvious primary living function of the second house on the Davidson property would be allowed by the present code." The Historical Society was concerned, like the Advisory Neighborhood Commission, that the poolhouse would decrease the Barres' privacy, and the Historical Society was also concerned that the poolhouse would decrease the economic value of Barres' property.

Joseph Bottner, the Zoning Administrator, testified that his original concern about the poolhouse arose from the fact that it was too large and seemed designed for general living activities, rather than the more limited uses expected of an "accessory building." Because only an accessory building could be built closer than twenty-five feet to a rear property line in the Davidsons' R-1 zoning district, *fn5 he was concerned that "the building appeared to be more than a poolhouse. It identified areas that were indicated as living quarters." Mr. Bottner informed the Davidsons' architect that the plans violated the zoning regulations applicable to accessory buildings because they showed a height of over fifteen feet, indicated that rooms would be used for sleeping and other ordinary living activities, and included a possible second story. The Zoning ...

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