Berry v. District of Columbia

32 App. D.C. 96 | D.C. Cir. | 1908

Mr. Chief Justice Shepard

delivered the opinion of the Court:

1. As shown by the agreed statement of facts, both Seventeenth and I streets, on which plaintiff’s corner lot abutted, are “resident” streets. Hence, by the plain terms of sec. 40 of the regulations, any building thereon was limited in height to 90 feet, whether or not one of those streets might have been wider than 90 feet. As a matter of fact, Seventeenth street, in front of plaintiff’s lot, is not wider than 90 feet. According to the adopted plan of the city of Washington the streets designated by letters of the alphabet run east and west; the numbered streets from north to south. Occasional broad avenues cross the city diagonally. Many squares are reserved for public parks and are the property of the United States. Some of these occupy spaces which would he partly contained in streets and avenues, had not the same been suspended at one boundary of the square to be continued from the opposite boundary. Farragut square is one of these reservations. As the plan shows, Connecticut avenue, instead of traversing Farragut square from southeast to northwest, was suspended at one boundary of the square and continued from the opposite one. The reservation of these squares for parks, and the general course of particular avenues and streets leading to them, prompted, if they did not necessitate, the occasional shifting of a regular street, in its prolongation, to the extent of the square. Had Connecticut avenue been laid out across Farragut square, there would have been left a small triangular space between it and the street opposite plaintiffs lot. The city map shows Seventeenth street extending south on the east side of Farragut square, and terminating, on that line, in Connecticut avenue, which began again at the south boundary of the square. Proceeding from the south boundary of the city, north, Seventeenth street was projected along the west side of the square and into Connecticut avenue on the north boundary of the same. • These two street ends, as they may be called, on their respective sides of Farragut square, are separate and distinct streets, though called by the same name. There is no ground for the contention that Seventeenth street is to be regarded, in the sense of the building regulations or in any other, as embracing the square lying between its two ends described as aforesaid. They are shown on the map, and have been laid out and improved, as not exceeding a width of 90 feet, respectively. Clearly the proposition to erect a house higher than 90 feet at the corner of Seventeenth and I streets was prohibited by the regulations.

2. It remains to consider whether the action of the commissioners, upon plaintiffs letters of March 17 and 24, 1898, amounted to a license to erect a building more than 90 feet in height at the corner of two “resident” streets, the subsequent revocation or denial of which entitled him to damages for the loss incurred. We are of the opinion that it did not amount to such a license.

The commissioners were empowered by Congress to make and promulgate general regulations governing the matter of building in the District of Columbia. Sirch regulations, when.promulgated, had the force of laws binding not only the public, but the commissioners also. They could amend or repeal by another general order, but they were invested with no power to suspend the same temporarily, or to make special orders exempting any particular person or property from their operation. They could give no special license in conflict with the provisions of the law. Brown v. District of Columbia, 29 App. D. C. 273, 285. The regulations provided that all applications for permission to build should be submitted, in the first instance, to the inspector of buildings, an officer created for that purpose, together with the plans and specifications,- — just such an application as plaintiff afterwards made when his plans and specifications had been completed.

What the commissioners were asked to do in the letters aforesaid was to interpret sec. 40 in advance, so that plaintiff might make his financial arrangements before deciding upon his building plans. As we have seen, the section is too plain to require interpretation. The action taken by the commissioners was a palpable misconstruction, and amounted to nothing more than a virtual suspension of the regulation by way of excepting plaintiff’s property from its operation. They áre not judicial officers invested with the power to make interpretations of their regulations, upon the petition of parties, but ministerial officers invested with the power to make certain general regulations, and then to enforce them without favor. Their action, being without authority, the plaintiff assumed the risk of incurring expenses on the faith of it.

When his plans were ready, he submitted them to the inspector of buildings, who refused the permit because the proposed building was in violation of the regulation. As he was under the supervision of the commissioners, an appeal was made to them to reverse his action and order the permit to issue. Then, for the first time regularly and legally, they were called upon to determine whether the proposed building, described in the plans and specifications, was within the prohibition of the regulations. They then arrived at a correct conclusion upon the conditions presented by the application, and approved the action of the inspector.

The court below was right in holding that there was no-foundation for the action brought, and the judgment will be affirmed, with costs. .Affirmed.