BEFORE THE BOARD OF ZONING ADJUSTMENT, DISTRICT OF COLUMBIA

PUBLIC HEARINGS, MARCH 13, 1963

Appeal No. 7149: The Sheridan Kalorama Neighborhood Council, appellant. The Zoning Administrator, District of Columbia, appellees.

On motion duly made, seconded and unanimously carried, the following order was entered on March 27, 1963:

Ordered:

The Zoning Administrator was in error when on December 27, 1962, he ruled that the use of premises 2144 Wyoming Avenue NW., lot 202, square 2528 as a chancery by the Syrian Arab Republic did not require a public hearing before the Board of Zoning Adjustment and that a certificate of occupancy for such use was issuable as a matter of right.

As a result of an inspection of the premises by the Board and from the records and the evidence adduced at the hearing, the Board finds the following facts:

(1) The subject property was used as the chancery of the Government of Morocco from September 1956, through November 1962. In December 1962, the Government of the Syrian Arab Republic leased the property for use by its chancery. Chancery occupancy has been continuous from September 1956, to

date.

(2) Chanceries have been permitted in residence districts with Board of Zoning Adjustment approval continulusly since May 12, 1958. Prior to September 1956, the use of property in the District of Columbia for chanceries was not regulated or controlled by the zoning regulations or by any agency of the government of the District of Columbia; but although exclusive jurisdiction prior to 1956 was vested in the executive branch of the Federal Government the extent of its control is not a part of this record.

(3) It is the contention of the Zoning Administrator:

(a) That this property enjoys a nonconforming use status for a chancery and that therefore the provisions of paragraph 7102.1 of the Zoning Regulations are applicable. Paragraph 7102.1 reads:

"7102.1 Any nonconforming use of a structure or of land, or any nonconforming structure lawfully existing on the effective date of these regulations which remains nonconforming, and any use or structure which shall become nonconforming on the effective date of these regulations or any subsequent amendment thereto may be continued, operated, occupied, or maintained subject to the provisions of this article."

(b) That paragraph 7104.2 does not apply since in his opinion the substitution of the chancery of one foreign government for that of another does not constitute a change of a nonconforming use. Paragraph 7104.2 reads:

"7104.2 If approved by the Board of Zoning Adjustment in accordance with the authority and procedures established in section 7109 of this article a class II nonconforming use may be changed to a use which is permitted in the most restrictive district in which the existing nonconforming use is permitted."

(4) Principal contentions of appellant council are:

(a) The use of a residence (in a residential district) by a foreign government as a chancery is not a nonconforming use within the meaning of this term in the zoning law and regulations. A nonconforming use is defined: "Nonconforming use: any use of a building, structure, or of land, lawfully existing at the time these regulations become effective, which does not conform to the use provisions of these regulations for the district in which such use is located."

The council contends:

That a chancery use of a property is a personal nontransferrable privilege based on comity between governments and when located in a residence district such use must be construed strictly since it is tantamount to a tolerated or condoned zoning abuse.

(b) The Zoning Administrator cannot be correct in that all chancery operations are different, some employing only a few persons, others many hundreds and that off street parking needs and traffic generation are variable to a great degree, dependent upon the property used and the size of the Government operation involved. Further, that BZA must therefore have sole jurisdiction by virtue of paragraph 3101.410 which reads:

"3101.410 Chancery, provided all other appropriate provisions of these regulations are complied with and provided further that the proposed use

and building in which the use is to be conducted are compatible with present and proposed development of the neighborhood. In determing compatibility the Board shall find that:

"(a) The size and scope of the operation will not be objectionable because of noise, traffic, or the number of persons employed;

"(b) The amount and arrangement of parking spaces and loading berths are adequate; and,

"(c) The architectural design and arrangement of all structures are in keeping with the character of the neighborhood."

(Italicized words are defined.)

Per curiam:

At the outset we must stress the fact that the source of existing authority and responsibility of this Board to regulate the location of chanceries in residence areas is neither in the Congress nor in the Zoning Commission but rather is a power exercised by this Board by authority conferred by the executive branch of the Government of the United States. As we view it this power may be withdrawn or modified at any time at the will of the executive or the Congress without recourse by any District of Columbia government agency. It is noted here that the Congress has failed to act on a Senate bill introduced almost a year ago, which would have restricted the zoning areas in which chanceries could be located.

With this as background, we must agree fully with appellant council that we are not here considering a nonconforming use as is envisioned by the Zoning Act and regulations. We believe, and so hold, that a chancery in a residence district, regardless of when it is or was established, or by what authority or board, is a nontransferrable privilege and is not a right which runs with the land as does the usual nonconforming use authorized by the Zoning Act. The substitution of the chancery of one country for that of another is therefore subject to the review contemplated by paragraph 3101.410 of the regulations.

The certificate of occupany authorized by the Administrator is without legal force and effect. Its revocation is therefore directed.

Mr. MULTER. Is there anyone else who has decided to file a statement? Any others received will be made apart of the record.

The report of June 26, 1963, of the National Capital Planning Commission to Chairman McMillan will be inserted at this point. (The report of National Capital Planning Commission follows:) NATIONAL CAPITAL PLANNING COMMISSION, Washington, D.C., June 26, 1963.

Hon. JOHN L. MCMILLAN,
Chairman, Committee on the District of Columbia,
House of Representatives, Washington, D.C.

DEAR CONGRESSMAN MCMILLAN: Your letter of February 1, 1963, inquires as to whether the Commission desires to comment on H.R. 59 (introduced on January 9, 1963, by Congressman Kyl), a bill to provide for the protection of residential and business realty in the District of Columbia which is not substandard and which is held by homeowners and small businessmen in urban renewal project areas in the District of Columbia, and for other purposes.

H.R. 59 would (1) exclude from real property assessments any increase in the value of property on which the taxpayer's personal residence is located resulting from the repair, alteration, renovation, or restoration of such residence for the fiscal year in which such improvements are completed and for the following 4 fiscal years, provided that the taxpayer making such improvements is the owner of the property at the close of each such fiscal year, and (2) allow as a deduction from gross income in computing net income for District of Columbia individual income tax purposes actual expenses up to $2,000 paid for the repair and maintenance of, or alterations or additions to, the taxpayer's personal residence. In each case, the taxpayer's personal residence is defined as property owned and occupied by the taxpayer or his spouse or both at the time of such repair, alteration, renovation, restoration, or addition, or within 6 months thereafter.

Although the Commission is in accord with the objective of the bill to encourage the improvement and maintenance of owner-occupied residential properties, it cannot evaluate the effect which the tax incentives provided therein would have on District of Columbia government revenued. Accordingly, the Commission is unable to comment on H.R. 59.

We are advised that, from the standpoint of the administration's program, the Bureau of the Budget has no objection to the submission of this report to your committee.

Sincerely yours,

ELIZABETH ROWE,
Mrs. James H. Rowe, Jr.,

Chairman.

Mr. MULTER. The committee will stand in recess subject to the call of the Chair.

(Whereupon, at 12:05 o'clock, the committee was adjourned, to reconvene subject to the call of the Chair.)

HOME REPAIR TAX INCENTIVES AND ZONING
RESTRICTIONS ON FOREIGN CHANCERIES

WEDNESDAY, AUGUST 7, 1963

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE No. 3 OF THE

COMMITTEE ON THE DISTRICT OF COLUMBIA,

Washington, D.C.

The subcommittee met, pursuant to notice, at 10:05 a.m., in room 445-A, Cannon House Office Building, Hon. Abraham J. Multer (chairman of the subcommittee) presiding.

Present: Representatives Multer, Huddleston, Springer, Schwengel, and Horton.

Also present: James T. Clark, clerk; Clayton Gasque, staff director; Donald Tubridy, minority clerk; and Leonard O. Hilder, investigator. Mr. MULTER. The committee will please be in order. We have originally set this morning for executive session of this subcommittee, but at the request of the State Department, we will have a brief public hearing on H.R. 5882, to prohibit the location of chanceries or other business offices of foreign governments in certain residential areas in the District of Columbia.

This was done in order to give the State Department another opportunity to present their views on the bill.

(H.R. 5882 is already in the record. S. 646 and Senate Report 360 thereon follow:)

[S. 646, 88th Cong., 1st sess.]

AN ACT To prohibit the location of chanceries and other business offices of foreign governments in any residential area in the District of Columbia

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Act entitled "An Act providing for the zoning of the District of Columbia and the regulation of the location, height, bulk, and uses of buildings and other structures and the uses of land in the District of Columbia, and for other purposes", approved June 20, 1938, as amended, is amended by inserting “(a)” after the section number in section 6 and by adding at the end of such section the following new subsection:

"(b) After the date of enactment of this subsection, no foreign government shall be permitted to construct, alter, repair, convert, or occupy any building for use as a chancery, chancery annex, or other business office of such foreign government on any land, regardless of the date of acquisition thereof, within a residence district established pursuant to this Act, except on the same basis as in the case of the construction, alteration, repair, conversion, or occupancy of a similar building by a United States citizen or entity. Nothing in this subsection shall prohibit the continued use as a chancery, chancery annex, or other business office of any building lawfully being used for that purpose on the date of enactment of this subsection, or to prohibit the making of ordinary repairs to any such building. This subsection shall not be administered in such a way as to discriminate against any foreign government on the basis of the race, color, or creed of any of its citizens."

Passed the Senate July 24, 1963.
Attest:

FELTON M. JOHNSTON, Secretary.