District of Columbia Court of Appeals.·581 A.

2d

DARO REALTY V. DIS

DARO REALTY, INC. AND DUPONT CIRCLE CITI

COMMISSION, RESPONDENT, FOURWAYS OF W

COURT OF APPEALS. ARGUED OCTOBER 5, 1989.

296

Richard B. Nettler, Baltimore, Md., for petitioners.

Charles L. Reischel, Deputy Corp. Counsel, Washing

Louis P. Robbins, with whom Whayne S. Quin and A

Before ROGERS, Chief Judge, and NEWMAN and

*297

297

NEWMAN, Associate Judge:

Petitioners appeal an order by the Zoning Commiss

from R-5-B, medium density general residence,
Intervenor, Fourways of Washington, Inc. ("Fourwa
Mansion, where Fourways operated a now defunct
continue to operate, as before, under a lawful nonc
building, which was approved by the Historic Preser
among other things, that the order constitutes illegal
We disagree and affirm.

Intervenor, Fourways, owns a 14,000 square foot p

Fraser Mansion at 1701 20th Street, N.W. The build
from commercial to R-5-B, medium density genera
lawful nonconforming use. In 1974, the building wa
its exterior and new construction are therefore g
("Preservation Act").1Fourways purchased the prope
the Fourways Restaurant in October 1982.
1.
D.C. Law 2-144, D.C. Code §§ 5-1001 to -1023 (1988).

Fourways had difficulty making a go of the restaura

the property more attractive to potential lenders, Fou
rezoned for commercial use and erecting a six-story
proposed building required the approval of the Hist
versions of the building, the HPRB determined that
and adjacent high-rise apartment buildings and appr
to *298

298

the District of Columbia Zoning Commission for

medium bulk major business and employment c
Declaration of Covenants restricting use and deve
neighbors within 75 feet of the property as beneficia

Following public hearings, during which the applica

groups, the Commission denied the application on
adverse impact on the surrounding neighborhood
Commission Order ("Z.C. Order") No. 537 (July 1
with a revised covenant and three alternative prop
concern about hotel use by restricting the propos
precluding hotel use and limiting uses of the Fraser M
containing the Fraser Mansion and R-5-D zoning
hearing, the OP testified in favor of the second prop
adequate protection against future development. Ne
again to deny the application, although it had not ye
that the Commission grant a change from R-5-B to
residence zoning.

The Commission reopened the record and asked th

receiving letters from Fourways, Advisory Neighbor
Coalition, Citizens Coalition Against Commercial E
approve the request and rezone the parcel to R-5-C,
the proposed building was not inconsistent with the
without adversely affecting the surrounding commun
2.
Daro Realty, Inc. and Dupont Circle Citizens Association ("DC

During the pendency of the appeal, the creditors o

Bankruptcy Code in the United States Bankruptcy C
September 14, 1989. In re Fourways, Inc., No. 89-00

We heard oral argument on October 5, 1989, follow

conditions and legal effect of the referenced coven
applicant can be achieved under current R-5-R zo
(Order, November 6, 1989). The Commission respo
addressed our questions.

On March 20, 1990, one of Fourways creditors, the

Court for the District of Columbia in the above men
the property at issue here.3 *299

299
3.
In June 1990, the bankruptcy court approved a consent order,
NBW would be given authority to sell Fourways' property
property for an amount at least equal to its debt to NBW. We
and that a foreclosure sale, originally scheduled for August 14
briefing, all parties have submitted memoranda acknowledgin
not stay the instant appeal.
Petitioners make four main arguments in this appea
that the Commission's rezoning order is not supporte
findings of fact and conclusions of law on each ma
effects of Intervenor's covenants are deficient; and
second request for reconsideration. We find no merit

We have defined spot zoning as the "wrenching" o

without benefit to the public at large or the area affec
4.
Citizens Ass'n of Georgetown, Inc. v. District of Columbia Zon
A.2d 635, 641 (D.C. 1980).

To constitute illegal spot zoning, the Commission's actio

particular property owner or specially interested part — an

character and zoning of the surrounding area, or the purpos

Citizens Ass'n of Georgetown, supra, 402 A.2d at 39

test are met.5

5.
Dupont Circle Citizens Ass'n v. District of Columbia Zoning C
(1976).

To date we have issued four decisions on spot zon

single property owners and, thus, in all four the first
case, because the petitioners failed to satisfy the
comprehensive plan and/or surrounding environmen
welfare.7 *300

300
6.
Lee, supra, 411 A.2d 635; Citizens Ass'n of Georgetown, sup
Comm'n, 388 A.2d 450 (D.C. 1978);Palisades Citizens Ass'n,

7.
All four cases were decided before the District adopted a com
row house dwellings, on grounds that the order was support
zoning plan." Palisades, supra, 368 A.2d at 1147. In Rock Cr
same basis, holding that the Commission did not have to sho
change. Rock Creek, supra, 388 A.2d at 451. In Citizens Ass'n
supermarket, on grounds that the enlargement was not out of
e.g., increasing the tax base and enhancing food services in
amendment. Citizens Ass'n of Georgetown, supra, 402 A.2d at
on grounds that an increase in housing stock served the public
642.

This case is indistinguishable from our four previou

satisfied — the order rezones a single parcel, which
the Commission properly has found that the chang
benefit public welfare by increasing the housing stoc
holding in Citizens Ass'n of Georgetown applies equ
8.
Z.C. Order No. 555, Finding 23.

In summary, while the . . . amendment does affect a limited

plan, with the character of the surrounding property, or

amount to illegal spot zoning; the [rezoned property] has n

402 A.2d at 40.

Petitioners would distinguish this case from its four

involved in the preceding cases; (2) the parcel of lan
the case in the preceding cases; and (3) unlike the
pressing financial problems. In addition, Petitioners
support the Commission's findings of consistency w

S
The size of the parcel is relevant only to the first pr
issue here, and Petitioners do not indicate how the si

The
We fail to see the relevance of the fact that the parc
some quality that places them above parking lots, f
welfare and be consistent with the comprehensive pl

We also fail to see the relevance of Petitioners' po

Taking this to be a reference to Citizens Ass'n of Ge
existing supermarket, we assume Petitioner's point m
its existing restaurant, which Petitioners suggest wo
entirely new use, i.e., to transform it from parking
distinguish this case from Citizens Ass'n of Georget
Fourways is greater than that to Safeway in that Fo
Petitioner's point merely helps satisfy the first prong

The owners seek rez

We see no reason to differentiate between owners
developers of row houses, and those who seek rezo
concern transcends the first prong to help satisfy the
are also seeking, and probably receiving, home bene

301

uses that benefit to stave off financial ruin, as oppos

matters is that the rezoning serves the public welfar
on the spot zoning test. No amount of scrutiny or se
make that inquiry.
 Publ
The Commission found that the public welfare woul
to the housing stock and help relieve the District's
apartment building on its parcel as a matter-of-right,
parcel. This contention is supported by an earlier Co
application,10 and by a March 1987 memorandum
Department of Public Works, concluding that Four
conclusion, upon which the Commission seemed to
mean that Fourways would have to demolish the
apartment building. The unlikelihood that Fourway
adequately supports the Commission's later finding t
9.
Z.C. Order No. 555, Finding 23.

10.
Z.C. Order No. 537, Finding 29: "The housing proposed by the

11.
Z.C. Order No. 555, Finding 23: "that the proposed zoning di
the adverse effect upon the surrounding community which c
subject site is historic and that it is protected by the District's H
 Consistency w
Petitioners contend that rezoning is inconsistent wit
set forth in the Land Use Element13 of conserving st
improvement, (2) that it violates the open space poli
Element objective of promoting the production of
findings on the first two points, and we find the third
12.
See 10 DCMR § 101 (1989); 10 DCMR Chapter 11 (1989).

13.
10 DCMR § 1102 et seq. (1989).

14.
10 DCMR § 805.10 (1989): "In additional development [aro
essential integrity of the particular historic property and its sen

15.
Petitioner's plea for low-income housing has a hollow ring.
Dupont Circle before, nor that they asked Fourways to provid
any housing at all.

As to preserving Dupont Circle as a stable neighborh

of commercial and residential development in the D
neighbors in support of Fourways' application, Fou
which the Commission reasonably could conclude
Dupont Circle area. This evidence includes: (1) testi

302

Holcomb, and Peter Carley that the proposed build

Public Works and Fourways' traffic consultant, Rob
traffic and parking demand; (3) testimony by the O
Fraser Mansion and the adjacent high rise build
development of the site; (4) approval of the building
David Sher, that the bulk of the proposed building
adjacent buildings. The Commission's judgment on
related to the evidence.16 Although the Commission
witness or statistic over another.17
16.
Roumel v. District of Columbia Bd. of Zoning Adjustment, 417

17.
Citizens Ass'n of Georgetown, supra, 402 A.2d at 47.

As to the open space and historic preservation issue

design, a design requested by the HPRB from Four
the best transition between the four-story Fraser M
approved by HPRB would suffice since the Compreh

Open space traditionally associated with privately owned

possible. If additional development is permitted, sufficien

property and its sense of setting.

19 DCMR § 805.10 (1989).

Finally, as to the promotion of low-income housing

occasion we have taken judicial notice of the ho
Commission to differentiate between contributions
will be in the public interest. Here, since Petitioner
addressing it here. See Rhema Christian Center v. D
until now, the fact that a proposed development wil
Commission findings that the public welfare is being
18.
Lee, supra, 411 A.2d at 638 (Commission must make finding
making process).
19.
Id. at 642.

For the foregoing reasons, we conclude that the Com

D.C. Code § 1-1509(e) (1981) mandates that admin

of fact and conclusions of law. Moreover, § 1-15
"reliable, probative, and substantial evidence."20 How

303

has stated that an issue does not become material s

Lee, supra, 411 A.2d at 638; Wheeler v. Bd. of Zoni
that the agency had to consider as part of its decision
20.
In Lee, supra, we outlined the "substantial evidence" requirem

First, the findings must address each material contested i

(1972). Second, there must be sufficient evidence to supp
accept as adequate. . . ." Vestry of Grace Parish v. Alcoh
Finally there must be a rational connection between the fi
and Review, D.C.App., 299 A.2d 145, 147 (1973). 411 A.2
Petitioners contend that the Commission's findings
material: (1) that Fourways could increase the re
construction would exacerbate traffic congestion in t
residences and diminish their market value; and (4
"downzone" the area. We address these issues seriati

Contributing to the
The issue of Fourways' ability to erect its proposed
Walter J. Cohen, Deputy Administrator of the De
apartment building on the site as a matter-of-right, if
have to demolish the Fraser Mansion, a historic land

The Commission responded to this issue in Finding

the property by the status of its existing structure as
plans, the Commission concluded that "the proposed
the same time not have the adverse effect upon
category." Petitioners contended that this finding w
category", i.e., Fourways' original application for co
zone category.

On remand, we ordered the Commission to clarify th

currently developed by the 1.1 FAR of the Fraser M
that is proposed is a permitted use in the R-5-B
significant increase in the development of Lot 60. Th
appropriate to provide for a reasonable level of resid

Based on this finding, we are now satisfied that the

residential development" as of right under Lot 60's c
1.8 FAR limit, of which 1.1 FAR is taken up by the
were torn down — which is not a realistic option gi
basis for overruling the Commission's conclusion
development," especially in view of the landmark s
approval for any development on the site.

In Z.C. Order No. 537, Finding 24, the Commission

304

use would have an adverse impact on traffic, "[s]o

traffic and parking demands generated by the site
Department of Public Works that Fourways' propo
Since the Commission did not speak to this issue in
that any increase in traffic generated by the propose
Z.C. Order No. 537. Although we have refused to in
we are willing to make inferences from general find
so as to provide this court with the 'basic [and] unde
Wheeler, supra, 395 A.2d at 88 (quoting Palmer v.
that the Commission's traffic findings in Z.C. Order
incremental development, are sufficient for this purp
21.
We note that nothing in Z.C. Orders 555 and 555-A affects the

Blockage of Light
We see no merit in this argument.22 The seven-stor
Apartments; these setbacks were also included in the
Moreover, pursuant to 11 DCMR § 405.6, side yard
to the set-backs, as well as any building proposed b
what would otherwise be permitted as of right. Thou
we here once again can infer from the Commission's
22.
We note that Fourways first proposed a six-story building to
HPRB approved the seven-story building, finding the five-sto
seven-story design] as an integral part of the street-scape."

The Commission's R
Petitioners contend that the Commission's rezoning
the Commission rezoned the area from R-5-C to R
called recent. It is not unreasonable that the Commis
stabilized to permit the "upzoning" of one parcel.
reasons supporting the Commission's final decision.

Fourways filed a covenant restricting the use, heigh

Sherwood, and all residential property owners with
covenant, removing the District as beneficiary and a

Petitioners contend that this covenant is inadequ

Commission's reliance on it is misplaced because int
J. Phillip Sherwood, who has since sold his property

305

and all residential property owners within 75 feet o

the United States. With respect to the latter, Petiti
purchaser of the property would not be bound by t
Fourways.

On remand, we ordered the Commission to specify

the Commission did so. We are now satisfied that
both issues raised by Petitioners.

Relia
The record indicates that the covenant affords su
residential property owners within 75 feet of Fourw
the amendments, the amendments retained all earli
Phillip Sherwood and his "successors, heirs, execu
purposes of enforcing the covenant Sherwood's sale
Apartment building, which abuts Lot 60. 25 In additi
owners to these added restrictions. See Capital H
(covenant running with land is generally enforcea
Fourways' property, did not sign the amendments, th
reason to second guess the Commission's judgment r
23.
In Z.C. Order No. 555-A, Finding of Fact 3 the terms of the fin

24.
The first amendment provides:

That the existing Fraser Mansion with its proposed small

automobile rental agency; billiard parlor or pool hall; b
mortuary, or undertaking establishment; general indoor sto
bus passenger depot; veterinary hospital; automobile and
restaurant; collection station for dry cleaning, dying, or lau

Order 555-A at 3.

25.
See Z.C. Order No. 555-A, Conclusion 1 at 4.

Moreover, the Commission was advised by the Co

initially opposed rezoning the property, dropped its
development afforded by the covenant. In light of
reasonably could rely on the protections afforded
rezoning decision because "private restrictions may
areas which have undergone recent changes.").

Dangers
Petitioners hypothesize a forced sale of the prope
Petitioners fear might be free to put up a building
covenant will not take effect until all appeal periods
increased in light of the consent order approved by
merit in this argument.

Even if a buyer were able to purchase the property a

306

covenant, the landmark status of the structure no

commercial development Petitioners fear. After all,
historic landmark. Any development on that site wil
and such approval is not likely to be granted lightl
Fraser Mansion intact, which in itself limits the
development also would have to complement the F
Given the concerns expressed by the HPRB in this c
and the overall character and appearance of the "stre
the size of the one now proposed by Fourways is spe

In addition to the development restrictions inherent

case is any indication of the normal processes of obt
require a thorough examination of the proposed d
Commission would be in a position to take steps dur

Therefore, given these built-in protections, the Com

threaten to undo the safeguards of the covenant.26
26.
Of course, once the covenant takes effect, it will be binding u
sale acquires the same title held by the debtor at the time the j
a buyer at an execution sale is deemed to take with notice of
thus cannot claim to have taken without notice of existing enc
Cal.Rptr. 23, 25 (1975).

In December 1987, as the Commission was set

September, Fourways offered a new proposal and th
the record. Petitioners contend that this action by the

a motion for reconsideration, rehearing or reargument of a

ten (10) days of the order having become final. . . . The C

argument of a final decision in a contested case proceeding

11 DCMR § 3029.5 (1989). Petitioners contend tha

Petitioners were denied "a trial-type hearing on mate

The Commission viewed the matter differently. In

Fourways requested the Commission to "reconsider
non-final decisions, the Commission may reopen th
Commission reserves the right to reopen the recor
proceeding . . ., notice of reopening the record shal
adds: "Prior to filing the final decision, the Commi
designated issues before the Commission." Thus, the

307

properly exercised a power specifically granted to it

provided notice to Petitioners and all other interested

Finally, Petitioners contend that the Commission sh

R-5-B would make use of the site by a chancery m
and local preservation laws. Petitioners point to D
permitted to locate: (A) In any area which is zoned m
never given a chance to present evidence that unde
zoning remained R-5-B, because of its existing uses
contend that the Commission should have looked
buildings once they become chanceries.

The chancery issue was presented to the Commissio

letter to the Commission from Petitioner, Dupont C
advice on the matter. The Commission stated the Co

(1) in chancery proceedings, the Foreign Missions Board o

in this determination, the Board is charged with ensuri

preservation; and (3) the Board is also authorized by the

area "determined on the basis of existing uses, which inclu

Relying on the Corporation Counsel's advice the Com

Petitioners disagree with the Corporation Counsel's

Columbia and federal agencies. However, Petition
conflicts and other "doubts," the Commission shou
Petitioners contend that they have a right to conte
1509(b) (1988), which provides in relevant part that
defense by oral and documentary evidence, to subm
full and true disclosure of the facts."

Because the section upon which Petitioners rely sp

whether or not legal advice received from the Cor
(1989) provides that "[l]egal advice from the Office
this section applies even when the record has been
contestable evidence.27 Affirmed.
27.
"We accord great deference to an agency's interpretation of its
or inconsistent with the regulations." Dupont Circle Citizens A

ContactFeaturesTermsPrivacyAboutJobsPressStudents