Wieck v. District of Columbia Board of Zoning Adjustment

MACK, Associate Judge,

dissenting:

The majority has found, as indeed it must, that the illegal use of petitioner’s building for residential purposes cannot be justified on a theory of estoppel. It seems to me incongruous, then, that the majority should sua sponte invoke laches to permit that same violation.

The majority recognizes that “[d]ue to the important general public interest in the integrity and enforcement of zoning regulations, the affirmative defenses of estoppel and laches are not judicially favored.” Ante at 10. This is undoubtedly correct, for the general rule is that neither of these defenses is ever available against a municipality.

More specifically, it is hornbook law that even though a zoning authority issues a permit, and a landowner proves he relied thereon, if that permit was issued in violation of the zoning ordinances, the city can revoke the permit and enforce the ordinances. 8 E. McQuillin, Municipal Corporations § 25.153 (3d rev. ed. 1976); 1 R. Anderson, American Law of Zoning § 6.13 (1968); 3 Rathkopf, Law of Zoning and Planning at 67-5 (3d ed. 1972). The policy considerations underlying this harsh rule are fully applicable to the instant case. Those considerations are:

(1) Lack of authority on the part of the administrative officer to issue a permit other than in strict accordance with the terms of the ordinance;
(2) The general public interest in the protection of the zoning ordinance which transcends the harm to the permit-tee;
(3) The actual or constructive knowledge of recipient of the permit of the illegality of its issuance; .
(4) The inability of an official to grant exemptions to the provisions of the ordinance; [and]
(5) . . . [T]he issuance of a permit contrary to the provisions of the ordinance may be the result of fraud on the part of the applicant with concurring negligence or ignorance on the part of the official, or the result of a corrupt bargain. [3 Rathkopf, Law of Zoning and Planning, supra at 67-5 to 67-6, 67-8 (footnotes omitted).]

Moreover, if there are strong public policy reasons for not allowing estoppel as a defense to the enforcement of municipal ordinances, there are even stronger reasons for not allowing laches as a defense. For, where estoppel is invoked, a municipality has taken an affirmative action which misled someone. Where laches is involved, however, the only fault of the city is inactivity. Furthermore, such inactivity is not necessarily “wrong,” as the majority suggests. It could result from an entirely justifiable decision to utilize scarce enforcement resources for more important matters.1

In any event, the inactivity in the instant case — at most six years, and in my view of the facts, three years — is hardly wrongdoing of a sufficiently serious nature to warrant the drastic remedy of nonenforcement of the law. Indeed, the courts have, virtually without exception, refused to apply the doctrine of laches in the zoning context in spite of far lengthier delays in enforcement. See 3 Rathkopf, Law of Zoning and Planning, supra at 67-5 n. 3 citing

*14Donovan v. City of Santa Monica (Cal.) [88 Cal.App.2d 386], 199 P.2d 51 (20 years); Appeal of Phillips (Conn.), 154 A. 238, 113 Conn. 40 (50 years); Gregory v. City of Wheaton (Ill.) [23 Ill.2d 402], 178 N.E.2d 358 (10 years); City of Kansas City v. Wilhoit (Mo.[App.]), 237 S.W.2d 919; Universal Holding Co. v. North Bergen Township (N.J.) [55 N.J.Super. 103], 150 A.2d 44 (8 years); Bartlett v. City of Corpus Christi (Tex.Civ.App.), 359 S.W.2d 122 (8 years); Fabrini v. Kammerer Realty Co., 14 Misc.2d 95, 175 N.Y.S.2d 964 (25 years plus); Matter of Hepner [Sup.], 152 N.Y.S.2d 984, n. o. r. (14 years); City of Yonkers v. Rentways, Inc., 304 N.Y. 499, 109 N.E.2d 597 (almost 20 years); City of Milwaukee v. Leavitt [31 Wis.2d 72], 142 N.W.2d 169 (occupancy permits erroneously granted tenants over 19-year period).

Aside from the lesser degree of municipal culpability, there is another reason why the defense of laches should be more disfavored than the defense of estoppel. Where estop-pel is invoked, a landowner must show justifiable reliance. In the context of laches, however, the only reliance which a landowner can show is reliance on nonenforcement of the law, which, I suggest, is never justifiable. Nor does reliance on inactivity become any more justifiable in the case of a self-proclaimed innocent purchaser. As any treatise on the purchase of real property will indicate:

The buyer should . . . ascertain if any relevant zoning ordinance permits the present use of the premises . . . He cannot properly assume that the existing use is permitted though long continued, because the municipal authorities may not be estopped from enforcing the zoning laws. [Friedman, Contracts and Conveyances of Real Property at 133 (2d ed. 1963) (footnote omitted; emphasis supplied).]

See also M. Lieberman, Effective Drafting of Contracts for the Sale of Real Property at 170-71 (1954). And see Hasage v. Philadelphia Zoning Board of Adjustment, 415 Pa. 31, 202 A.2d 61, 64 (1964), where the same court which decided In re Heidorn’s Appeal, 412 Pa. 570, 195 A.2d 349 (1963), cited by the majority, wrote:

It is argued that the applicants purchased the property thinking multiple-family dwelling was permissible, and, acting on such belief, made an investment of approximately $36,000. The answer to this is that they were duty bound to check the zoning status of the property before purchase, and could have required a certificate of such from the seller . . .

Moreover, in this case, even if petitioner failed to check the zoning laws and failed to require a certificate at the time of sale, he may still have a remedy against the seller. The city notified Mrs. deRochefort on two separate occasions that the building was being maintained in violation of the law. If she concealed her knowledge from petitioner, she is liable for fraud. Eytan v. Bach, D.C.App., 374 A.2d 879, 880 (1977); Andolsun v. Berlitz Schools of Languages of America, Inc., D.C.App., 196 A.2d 926, 927 (1964). It is Mrs. deRochefort, then, not the general public, who should make right any injury which petitioner might suffer from enforcement of the zoning laws.

Finally, turning from the equities of the matter to the law, there is one more difference between the defense of estoppel and the defense of laches in this context. There are a fair number of cases holding that, in extraordinary circumstances, the defense of estoppel may bar the enforcement of zoning laws. There are, by contrast, almost no cases allowing the defense of laches. None are cited by Rathkopf, in the Law of Zoning and Planning, supra. Yokley, in his treatise, flatly states that

With respect to the question of laches, we consider it sufficient to say that the doctrine of laches has no application to the enforcement by a municipality of its ordinances. [E. C. Yokley, Zoning Law and Practice § 10-8 at 451 (3d ed. 1965) (footnote omitted).]

*15The majority, however, has found a case on point.2 That case is In re Heidorn’s Appeal, supra. It was followed in one subsequent Pennsylvania decision, Township of Haverford v. Spica, 16 Pa.Cmwlth. 326, 328 A.2d 878 (1974), where the delay in enforcement was 36 years. My own research has uncovered no other case in the entire country, let alone the District of Columbia, applying the doctrine of laches against a zoning authority. See in this respect, 1 R. Anderson, American Law of Zoning, supra, § 6.12 at 333, where it is said:

No right to a nonconforming use is gained where a use of land in violation of a zoning ordinance is maintained for a period of years. Apparent municipal acquiescence in an unlawful use does not prevent the municipality from urging the illegality when a right to nonconforming use is claimed, but a Pennsylvania court detected laches where a town had failed for 10 years to object to a building which violated a regulation. [Footnotes omitted.]

The case cited is, of course, Heidorn’s Appeal. See also, Ryan, Pennsylvania Zoning Law and Practice § 8.3.4 (1970), where it is said:

This 4-3 decision [Heidorn, once more] seems out of line with similar cases.

In any event, the sole case relied on by the majority is, in my view, distinguishable from the one at bar. The violation in Hei-dorn concerned an awning which encroached on setback territory. Setback restrictions are generally imposed for purely esthetic reasons. 1 R. Anderson, American Law of Zoning, supra § 7.18. And, with respect to esthetics, the Pennsylvania court stated:

The original homely overhang was there for the world to see and frown upon and if it did not offend the esthetic senses of the Township for some ten years, the present attractive awning and platform should not. The aluminum porch which now graces the front of the Heidorn home improves its appearance considerably and in no way impedes enjoyment by others of their property. There is not the slightest suggestion that the patio effect of the front of the Hei-dorn home is detrimental to the welfare, ■ safety and health of the community. .
No citizen of the Township has objected to what the Heidorns have done. Some 75 houseowners in the immediate vicinage signed a petition urging retention of the patio. [In re Heidorn’s Appeal, supra, 412 Pa. at 574, 195 A.2d at 351-52.]

. By contrast, the petitioner in this case seeks to prevent the city from enforcing side yard, rear yard, lot area and parking restrictions. These requirements are aimed at preventing population congestion, and population congestion is precisely what the use of petitioner’s building for residential purposes causes. Such requirements are not trivial.

To limit the density of land use is to promote safety by keeping traffic congestion within manageable bounds, and the prevention of excessive land use tends to simplify the problem of providing essential municipal services and to promote public health. Indeed, the early zoning ordinances were, in large part, prompted by the overcrowding of urban land, and judicial approval of these ordinances was encouraged by an early appreciation of the health and safety hazards inherent in the intensive use of land in central city areas. [1 R. Anderson, American Law of Zoning, supra § 7.06 at 486.]

Here, unlike in Heidorn, there is reason to believe that the violation in question is detrimental to the welfare, safety and health of the community. Moreover, the record reveals that several citizens so believed and complained to the zoning board.

I respectfully dissent.

. Obviously, the zoning board cannot attend to every conceivable violation. Congress itself has implicitly recognized this fact by enacting D.C.Code 1973, § 5-422, which allows private citizens to bring suit to enforce the zoning laws.

. The cases cited in footnote 10 of the majority’s opinion either do not deal with laches or hold that there was no laches.