356 F2d 344 Association for Preservation of Block of Street v. C M Duke

356 F.2d 344

ASSOCIATION FOR the PRESERVATION OF the 1700 BLOCK OF N STREET et al., Appellants,
v.
C. M. DUKE, Commissioner, Government of the District of Columbia, et al., Appellees.

No. 19628.

United States Court of Appeals District of Columbia Circuit.

Argued January 11, 1966.

Decided January 27, 1966.

Mr. James P. Donovan, Washington, D. C., with whom Mr. Paul M. Rhodes, Washington, D. C., was on the brief, for appellants.

Mr. John R. Hess, Asst. Corp. Counsel for District of Columbia, with whom Messrs. Milton D. Korman, Acting Corp. Counsel, and Hubert B. Pair, Asst. Corp. Counsel, were on the brief, for appellees. Mr. Bruce S. Mencher, Asst. Corp. Counsel, also entered an appearance for appellees.

Before WILBUR K. MILLER, Senior Circuit Judge, DANAHER, Circuit Judge, and BASTIAN, Senior Circuit Judge.

PER CURIAM:

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1

This is an appeal from an order of the District Court granting summary judgment to appellees, the Zoning Commission (Commission) of the District of Columbia.

2

Upon the application of the National Presbyterian Church, Inc., the Commission granted a change in the zoning classification of Lots 77 and 817 to 821, inclusive, in Square 159, being premises 1225-1229 Connecticut Avenue (the southeast corner of 18th and N Streets, N. W.) and 1758-1764 N Street, N. W., respectively, from SP (Special Purpose) to C-3-B. SP (Special Purpose) zoning does not include, as a matter of right, permission for commercial use of the properties involved, while C-3-B zoning permits, as a matter of right, commercial establishments, including stores.

3

On the filing of the application for change of zoning, the matter was referred to the Zoning Advisory Committee as required by law;1 and that committee filed its report to the Commission recommending approval of the proposed change. A hearing before the Commission was duly held as required by law. At the hearing, a number of organizations and individual witnesses testified or submitted statements for and against the application. All procedural requirements were complied with by the Commission, and, on November 13, 1963, the Commission entered its order granting the application.

4

The present action was then filed in the District Court on December 5, 1963, seeking to enjoin the zoning change, claiming that the order was void, adopted without lawful authority, and unconstitutional. Thereafter that Court entered its order granting summary judgment for the Commission. This appeal followed.

5

The power of the District Court, and of this Court, to review an action of the Zoning Commission is limited. We are not to substitute our judgment for that of the Commission. Nor are we to set aside its actions unless we are convinced that such action by the Commission was clearly arbitrary, unreasonable and had no substantial relation to the general welfare. Lewis v. District of Columbia, 89 U.S.App.D.C. 72, 190 F.2d 25 (1951), citing with approval Leventhal v. District of Columbia, 69 App.D.C. 229, 100 F.2d 94 (1938).

6

Holding, as we do, that there is substantial evidence in the record to sustain the findings of the Zoning Commission, and that its action was not arbitrary or capricious and has substantial relation to the public welfare, we affirm the judgment of the District Court.

7

Affirmed.

Notes:

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1

D.C.CODE § 5-417