Board of Zoning Appeals of Decatur v. Decatur, Ind. Co. of Jehovah's Witnesses

Decision Date01 February 1954
Docket NumberNo. 29119,29119
Citation233 Ind. 83,117 N.E.2d 115
PartiesBOARD OF ZONING APPEALS OF DECATUR v. DECATUR, IND. CO. OF JEHOVAH'S WITNESSES.
CourtIndiana Supreme Court

Robert S. Anderson, Voglewede, Anderson & Whitted, Decatur, Charles K. Whitted, Decatur, for appellant.

Custer & Smith, Decatur, Hayden C. Covington, Brookyn, N. Y., for appellee.

BOBBITT, Judge.

Appellee filed its application with the proper officer of the city of Decatur, Indiana, seeking a permit under the provisions of the city zoning ordinance for the construction of a church with a seating capacity of 150 on a vacant lot owned by appellee at the northeast corner of Ninth and Monroe Streets in said city. The lot is 66 feet X 108 feet, and the size of the proposed building is 34 feet X 60 feet.

The building permit was denied because of noncompliance with the building set-back line and the failure to provide off-street parking space as required by the ordinance. An appeal from this ruling was taken to the Board of Zoning Appeals requesting a variance of the terms of the ordinance and asking the '* * * same privilege to use N. Ninth Street for parking as enjoyed by other church organizations on various city streets.'

The Board of Zoning Appeals denied the request for variance and appellee then filed a petition for writ of certiorari in the Adams Circuit Court. The cause was there submitted on the verified petition of appellee and the verified return of appellant. From a judgment reversing the action of the Zoning Board this appeal is prosecuted.

The applicable parts of the zoning ordinance of the City of Decatur are as follows:

'Article IV.

* * *

* * *

'Sec. 5. Yard Specifications:

'a. Buildings shall be set back from front, rear and side lines of all lots in order to establish open areas designed as Front, Rear and Side Yards. The minimum set back for such purposes shall be as follows:

'b. Front Yard:

'(1) Normally, twenty percent (20%) of the depth of the lot-maximum required forty (40) feet.

'(2) In a block where twenty-five percent (25%) of the lots are occupied by buildings, the average depth of front yards establishes the front yard for the block.

* * *

* * *

'Sec. 7. Off-street Parking of Motor Vehicles.

'a. Specifications relating to off-street parking of motor vehicles are contained in Article XIII of this Ordinance.

* * *

* * *

'Article XIII.

'Off-street Parking for Motor Vehicles.

'Sec. 1. Parking Requirements.

'In order to lessen or avoid congestion in the streets and to secure safety and promote general welfare, the following regulations are hereby established to require that each building hereafter erected, reconstructed or structurally altered, which is arranged, intended or designed to be used for any of the following uses, shall provide off-street parking space, of not less than two hundred fifty (250) square feet for each space, within the building, on the premises surrounding the building, or on other premises when specified as follows:

* * *

* * *

'c. Theaters; Sports Arenas; Churches; Temples; Mortuaries; Other places of Congregation: One (1) vehicle parking space for each six (6) seats.'

Section 1 of Article IV of the ordinance permits the building of churches in a residential district.

The application for the building permit was rejected for the following reasons:

1. The average depth of the front yards in the block along Monroe Street, on which street the proposed church faces, is 18.48 feet from the property line. The proposed building as shown by the plan submitted is only 14 feet from the property line.

2. A building of 150 seating capacity requires 6,250 square feet of off-street parking, whereas only 2,244 square feet are provided in the application.

Zoning ordinances and regulations find their justification in the police power of the state. Landay v. MacWilliams, 1938, 173 Md. 460, 196 A. 293, 114 A.L.R. 984; Yokley, Zoning Law & Practice, 2d ed. Vol. 1, § 15, p. 17.

We are here faced with the problem of balancing interests asserted under the police power with those under the Constitutional guarantee of freedom of worship and assembly.

Appellee contends that the restrictions imposed by Section 5 of Article IV pertaining to property setback lines, and Section 7 of Article IV, and Section 1(c) of Article XIII pertaining to off-street parking are unreasonable, arbitrary, capricious and unlawful as applied to its particular property described in its application for a building permit because when so applied they violate the First and Fourteenth Amendments to the Constitution of the United States.

Appellant asserts that the application of said sections to appellee's propety is a reasonable and valid exercise of the police power; that it was within the discretion of the zoning board to grant, or not to grant, the variance; and that there is no showing of illegality in the proceedings.

The illegality alleged in the petition for certiorari is that the zoning board, in the enforcement of certain restrictions contained in the ordinance against appellee's property under the surrounding facts, violated certain provisions of the federal constitution.

Unconstitutionality is illegality of the highest order. See: Board of Zoning Appeals v. Moyer, 1940, 108 Ind.App. 198, 210, 27 N.E.2d 905; 11 Am.Jur., Constitutional Law, § 148, p. 827.

Appellee has properly presented the question of the unconstitutionality of certain provisions (parts) of the ordinance as applied to its particular property. City of East Chicago, Ind. v. Sinclair Refining Co., 1953, Ind., 111 N.E.2d 459.

Each zoning case must stand upon its own set of facts; City of East Chicago, Ind. v. Sinclair Refining Co. supra; Yokley, Zoning Law & Practice, 2d ed. Vol. 1, § 28, p. 40; and a zoning ordinance may be valid generally but invalid as applied to certain property; Women's Kansas City St. Andrew Soc. v. Kansas City, Mo., 8 Cir., 1932, 58 F.2d 593; People ex rel. Joseph Lumber Co. v. City of Chicago, 1949, 402 Ill. 321, 83 N.E.2d 592; Fairmont Inv. Co. v. Woermann, 1948, 357 Mo. 625, 210 S.W.2d 26; McQuillin on Municipal Corporations (3d ed.) Vol. 8, § 25.63, p. 112, and cases there cited.

The sole question thus presented is: Are the restrictions imposed by the above-mentioned sections of the Decatur Zoning Ordinance reasonable regulations on the building of a church at the location and under the facts and circumstances as shown by the record before us?

First: We shall consider the restriction found in Section 5 of Article IV pertaining to front yards or property setback lines.

Zoning restrictions cannot be imposed unless they bear a substantial relation to the public health, safety, morals, or general welfare. Nectow v. City of Cambridge, 1928, 277 U.S. 183, 48 S.Ct. 147, 72 L.Ed. 842.

Freedom of worship is a fundamental right protected by the Fourteenth Amendment of the United States Constitution from invasion by state action. Chaplinsky v. State of New Hampshire, 1942, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031; People of State of Illinois ex rel. McCollum v. Board of Education, 1948, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 648, 649, 2 A.L.R.2d 1338.

However, the building of churches is subject to such reasonable regulations as may be necessary to promote the public health, safety, or general welfare. Cantwell v. Connecticut, 1940, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352; West Virginia State Board of Education v. Barnette, 1943, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628, 147 A.L.R. 674; Commonwealth of Mass. v. Prince, 1943, 313 Mass. 223, 46 N.E.2d 755, 152 A.L.R. 571, 576.

It is well settled that a municipality may, as a part of a comprehensive zoning plan, establish reasonable setback or front yard lines, the only restriction being that such provisions shall be reasonable. Yokley, Zoning Law & Practice (2d ed.), Vol. 1, § 164, p. 406; McQuillin on Municipal Corporations (3d ed.), Vol. 8, § 25.138, p. 237; 11 Am.Jur., Constitutional Law, § 302, p. 1073.

There is no certain test of what is a reasonable interference with the enjoyment of the rights of property or the personal rights guaranteed by the Constitution. 11 Am.Jur., Constitutional Law, § 304, p. 1079. No general definition of reasonableness is possible, but its determination must rest upon human judgment applied to the facts and circumstances of each particular case. Yokley, Zoning Law & Practice, (2d ed.), Vol. 1, § 28, p. 40, supra; 11 Am.Jur., Constitutional Law, § 304, p. 1079, supra.

The validity of the restrictions here in question must rest upon the theory that they are necessary for the safety, health, or general welfare of the public. We find no evidence in the record tending to show that the setback line of 18.48 feet is arbitrary or capricious as applied to appellant's property, or that it places an unreasonable restriction upon the freedom of worship or the right of assembly. The enforcement of this restriction will not act as a prohibition against the building of the proposed church because appellee can reasonably comply with the requirement. In our judgment Article IV, § 5(b) 2 of the Zoning Ordinance of the city of Decatur is not an unreasonable regulation as applied to appellee's property and is, therefore, a valid exercise of the police power in the interest of health and public welfare.

Second: We now consider the provision of said ordinance pertaining to off-street parking, which presents a question of first impression in this state.

Under the provisions of the ordinance appellee is required to provide 6,250 square feet of off-street parking for the accommodation of 25 automobiles, or one parking space for each six seats in the church.

The evidence before the zoning board discloses that appellee offered to reduce the seating capacity of the proposed church from 150 to 100; that services were held from 7:30 or 8 o'clock to ten o'clock p. m. on Fridays, and at 3:45 p. m. on Sundays; that there is no shift change of factory...

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