Milwaukie Co. of Jehovah's Witnesses v. Mullen

• Decision Date: 17 September 1958
• Parties: , 74 A.L.R.2d 347 MILWAUKIE COMPANY OF JEHOVAH'S WITNESSES, an Oregon corporation, Appellant, v. Leonard MULLEN, Mayor, and Fred O. Roberts, Pete Mortonsen, Ralph E. Klein and Earl Clay, City Councilmen, comprising the City Council of the City of Milwaukie, Oregon, Respondents.
• Court: Oregon Supreme Court

Page 5

330 P.2d 5

214 Or. 281, 74 A.L.R.2d 347

MILWAUKIE COMPANY OF JEHOVAH'S WITNESSES, an Oregon

corporation, Appellant, v. Leonard MULLEN, Mayor, and Fred O. Roberts, Pete Mortonsen, Ralph E. Klein and Earl Clay, City Councilmen,

comprising the City Council of the City

of Milwaukie, Oregon, Respondents.

Supreme Court of Oregon, Department 2.

Argued Jan. 29, 1958.

Decided Sept. 17, 1958.

Hayden C. Covington, Brooklyn, N. Y., argued the cause for appellant. With him on the briefs was Carl D. Etling, Portland.

John O. Sheldahl, Oregon City, argued the cause and filed a brief for respondents.

Before PERRY, C. J., and LUSK, WARNER and KESTER ^*, JJ.

WARNER, Justice.

The appellant, Milwaukie Company of Jehovah's Witnesses, a corporation, as petitioner, instituted this proceeding for a writ of mandamus directing the Mayor and Councilmen of the city of Milwaukie, Oregon (hereinafter called 'the Council') to issue a permit to appellant authorizing it to erect a church in an area of that city restricted primarily as a residential zone for single-family dwellings.

Upon the conclusion of the presentation of appellant's evidence, the Council moved to discharge the alternative writ and dismiss the proceeding on the ground that the petitioner had failed to prove a sufficient case. From the ensuing order of non-suit, the Witnesses appeal.

The uncontradicted facts disclose: that the zoning Ordinance No. 481 was adopted in June, 1946; that the appellant, in 1953, acquired two lots, in Milwaukie, Oregon, together 100' X 100' in size; that this property is on Penzance Street, between Campbell and Elm Streets, and within the zoning area 3-R-1 (Section 16, subsection 3 (1 to 5, inclusive)) ¹ reserved for single-family dwellings; that the appellant first applied to the City Planning Commission for a special-use permit, as provided by Section 16, subsection 3(8), ² of the zoning ordinance; and that the application was denied by that body. It thereupon appealed to the City Council, when, after notice and a hearing, the request of the Witnesses was unanimously denied.

The heart of the zoning ordinance is in Sections 2 and 3 of that legislation. They establish the minimum standards for the general welfare:

'Section 2. Scope. No building or land shall hereafter be used and no building or part thereof shall be erected, moved or altered unless in conformity with the regulations herein specified for the district in which it is located except as otherwise provided herein. No permit for the construction or alteration of any building shall be issued unless the plans, specifications, and intended use of such building conform in all respects with the provisions of this ordinance.

'Section 3. Minimum Requirements for General Welfare. The provisions of this ordinance shall be deemed the minimum requirements to encourage the most appropriate use of land; to conserve and stabilize the value of property; to provide adequate open spaces for light and air; to prevent undue concentration of population; to lessen the congestion on streets; to facilitate adequate provisions for community utilities and facilities such as transportation, water, sewage, schools, parks and other public requirements and to promote the public safety, health, convenience, comfort, prosperity and general welfare of the people of the City of Milwaukie, Oregon.'

It is in Section 3, we find the standards controlling the powers of administrative discretion conferred on the Council when it considers applications for issuance of special-use permits sought under Section 16, subsection 3(8), supra.

So far as zoning ordinances relate to the location of churches within zoned areas, there are, generally speaking, three kinds:

(1) Ordinances expressly classifying churches as being in residential districts. For illustrations of this type, see cases cited in State ex rel. Roman Catholic Bishop of Reno v. Hill, 1939, 59 Nev. 231, 90 P.2d 217;

(2) Ordinances expressly excluding churches from residential areas. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. City of Porterville, 1949, 90 Cal.App.2d 656, 203 P.2d 823; dismissed for want of substantial federal question, 338 U.S. 805, 70 S.Ct. 78, 94 L.Ed. 487; rehearing denied 338 U.S. 939, 70 S.Ct. 342, 94 L.Ed. 579;

(3) Ordinances which are permissive as to the location of churches within a residential area, that is, by permit following an application for and hearing by a designated zoning authority.

The Milwaukie ordinance is of the latter or permissive type (Section 16(8) Ordinance 481). See Congregation Committee, North Fort Worth Congregation, Jehovah's Witnesses v. City Council of Haltom City, Tex.Civ.App.1956, 287 S.W.2d 700.

Appellant claims, in the case at bar, the Milwaukie ordinance does not exclude churches. It says: 'This case involves an ordinance that permits churches in the zone,' a conclusion which would seem to place the Milwaukie ordinance in the first of the three above-enumerated types of 'church' zoning. In this, appellant is in error. It misconceives the character of the ordinance if appellant assumes the ordinance allows a church a permit to build as a matter of absolute right. It is a conclusion that overlooks the ordinance's distinctively permissive character. Under Section 16(8), supra, special-use permits are, if issued, to churches, and the other institutions therein enumerated, only 'after the commission has been satisfied as to the propriety of such use.' Its judgment on the 'propriety of such use' is, as we have noticed, guided by the minimal requirements established by Section 3, supra. So, too, is the judgment of the Council when considering an appeal from a ruling of the commission. To hold otherwise would be to render nugatory one of the zoning ordinance's most salutary features.

Since defendant's motion for a nonsuit was allowed, there is before us only the evidence presented by the plaintiff-appellant. In determining whether or not the circuit court erred, we accept that evidence as true and view it in the aspect most favorable to the plaintiff. Cox v. Sanitarium Co., 181 Or. 572, 573, 184 P.2d 386; Marr v. Putnam, 196 Or. 1, 25, 246 P.2d 509.

The evidence adduced by appellant, considering the burden cast upon it, is exceedingly meager and at places vague and fragmentary. The record consists solely of the testimony of two witnesses, a Mr. Hughart, its presiding minister, and a Mr. Klein, one of the defendant councilmen called as an adverse witness, and two exhibits. One exhibit was a photograph of a scale drawing of the prospective church, the other a copy of Zoning Ordinance 481. The testimony of the witnesses does not cover more than twenty-seven pages of the transcript.

We examine the record to determine whether the appellant made a prima facie case in support of the allegations in the alternative writ of mandamus, and upon which its right to a peremptory writ depends. There are four material allegations. The first is: The council acted capriciously and arbitrarily without regard to the facts. The second is: That the zoning ordinance 'which prohibits the erection and maintenance of a building to be used as a church in Class 3-R-1 [single dwelling], residential district of the City of Milwaukie is unconstitutional and void,' as a deprivation of appellant's property rights without due process and in violation of the Fourteenth Amendment of the Federal Constitution. The third: That it is unconstitutional and void as a denial to plaintiff of the equal protection of the law, that is, that it is discriminatory under the same section of the Federal Constitution and Section 20, Article I of the Oregon Constitution, in that it attempts 'to grant to other citizens or classes of citizens privileges and immunities which upon the same terms are denied to the plaintiff.' The fourth is: That the zoning ordinance and the actions of the Council trespass on the right of freedom of worship under the Fourteenth Amendment, interpreted as embracing the freedoms guaranteed by the First Amendment, and as protected by Article I, Section 2 of the Oregon Constitution. We interpolate to observe that the guarantee of religious freedom found in the Federal Constitution is identical in meaning to Article I, Section 2 of the Oregon Constitution, although expressed in different language. City of Portland v. Thornton, 1944, 174 Or. 508, 512, 149 P.2d 972.

The several assignments of error in the main follow the material allegations of the complaint as above outlined, except, appellant, in its brief, waives its attack on the validity of the ordinance per se, and rests its representation of unconstitutionality on the resultant action of the council. Thus it says: 'The plaintiff contends that it is the order of the City Council that has deprived it of its constitutional rights. This contention is not that the ordinance is void or that any part of it is illegal on its face. The position of plaintiff is that the law is unconstitutional as construed, applied and enforced by the board. The constitutionality of the law is to be determined according to the particular facts of the case.' The same variant in position from the allegations found in the writ is likewise reflected elsewhere in its briefs.

We recognize and accept as established law, that even if a legislative enactment is not void or unconstitutional on its face, the manner of its enforcement and application may render such action unconstitutional as to the parties affected. Yick Wo v. Hopkins, 1886, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Concordia Fire Ins. Co. v. People of State of Illinois, 1934, 292 U.S. 535, 545, 54 S.Ct. 830, 78 L.Ed. 1411.

Before proceeding further, it is well to give attention to certain rules which will have a bearing on our conclusions.

When this court reviews the action of an administrative agency performing duties outside the judicial branch, it is limited in the scope of its inquiry. It...