State ex rel. Roman Catholic Bishop of Reno v. Hill

• Decision Date: 08 May 1939
• Docket Number: 3268.
• Citation: 90 P.2d 217,59 Nev. 231
• Parties: STATE ex rel. ROMAN CATHOLIC BISHOP OF RENO et al. v. HILL, City Engineer, etc.
• Court: Nevada Supreme Court

90 P.2d 217

59 Nev. 231

STATE ex rel. ROMAN CATHOLIC BISHOP OF RENO et al. v. HILL, City Engineer, etc.

No. 3268.

Supreme Court of Nevada

May 8, 1939

Original mandamus proceeding by the State of Nevada, on the relation of the Roman Catholic Bishop of Reno and his successors, and others, against Charles L. Hill, as City Engineer, and ex officio Inspector of Buildings of the City of Reno, County of Washoe, State of Nevada.

Peremptory mandate awarded.

M. A Diskin and William S. Boyle, both of Reno, for petitioners.

Douglas A. Busey, City Atty., of Reno, for respondent.

PER CURIAM.

In this proceeding petitioners challenge the validity of Sections 7 and 8 of Ordinance No. 433 (the Zoning Ordinance) of the City of Reno, upon the ground that they infringe Sections 1, 4 and 8 of Article I of the Constitution of Nevada, and the Fourteenth Amendment of the Constitution of the United States, U.S.C.A.

Section 7 of said Zoning Ordinance reads as follows: "It shall be unlawful for any person, firm, association or corporation to erect, build, alter, or enlarge any building or structure in the Residential District, not intended for residential purposes, except sheds which may be erected in the rear of any lot, except as hereinafter provided."

Prior to January 1st, 1939, Section 8 of said ordinance read "Any person, firm, association or corporation desiring to build, enlarge, alter or build upon any structure in the Residential District, shall first submit the plans of the same to the Building Inspector of the City of Reno, and if said building or structure is to be used for any other purpose than a dwelling or apartment house, the person, firm association or corporation intending to construct, alter or enlarge the same shall first obtain the written permission of seventy-five (75%) percent of the owners of property in the block in which said building is to be constructed, altered or enlarged, and of the owners of property in the adjacent blocks facing on the street upon which said building will face, within a distance of 500 feet of said building, and shall obtain in addition thereto, the approval of the Building Inspector of the City of Reno, as to the construction of said building, provided, however, that in the event said person, firm, association or corporation is unable to obtain a written permission of the property owners as herein before provided, the said person, firm, association or corporation intending to construct said building may submit the plans therefor, to the City Council, together with a statement as to what purpose said structure is to be used and the City Council by a majority vote may grant a permit for the construction of said building or the enlarging or alteration of the same over the protest of the property owners, if in their judgment the protest or refusal of permission was unreasonable."

An amendment to said Section 8 was introduced in the City Council on December 13th, 1938, passed December 27th, 1938 and became effective January 1st, 1939. The amended section is as follows: "A permit may be issued for the erection or building in the residential district of a building or structure for purposes other than residential purposes, or for the alteration, enlargement or conversion of a building or structure in such district for or to such purposes other than residential purposes, provided that there be filed with any application for such permit written consents thereto signed by the owners, or legal representatives of the owners, of three-fourths of the land in the block in which such building or structure is to be erected, built, altered, enlarged or converted, and of the land in the adjacent blocks facing upon the street upon which such building will face within a distance of 500 feet thereof. Provided further that if such written consents are filed with such an application then the Council may be a majority vote grant or deny the application, but if such written consents are not filed with such an application then a five-sixths vote of the members elected to the City Council shall be required to grant the application."

On July 25th, 1938, the Bishop made application to the City Council, pursuant to Section 8 of Ordinance No. 433, for permission to construct a church on certain lots in the residential district of the city as defined by said ordinance. The application was not supported by the written permission of seventy-five per cent of the property owners within the distance specified in Section 8 of the ordinance. It was opposed by a protest signed by a majority of the property owners within such distance. This application was rejected by the City Council on August 22d, 1938.

On December 20th, 1938, the Bishop made written application to the City Engineer for a permit to construct a church upon certain lots in the residential district as defined by City Ordinance No. 433. This application was made under Section 9 of Ordinance No. 434, known as the Building Ordinance. It was denied by the City Engineer on the ground that by reason of Sections 7 and 8 of City Ordinance No. 433, he was without right, power or authority to issue the permit. Both of the applications for building permits were made before Section 8 of the Zoning Ordinance was amended. The petition for a writ of mandamus herein was filed December 22d, 1938. Respondent filed its answer on February 6th, 1939, and on the same day there was filed a stipulation and agreed statement of facts, to which is attached a map showing the proposed site of the church and the near-by surroundings. From the petition, the answer and the agreed statement of facts it appears that the one Roman Catholic church in Reno is inadequate to meet the needs of its communicants, that a second parish has been established, and that the proposed church would be built to accommodate not less than three hundred families resident therein. The site is the most convenient for serving the needs of said parishioners.

The application filed as aforesaid by the Bishop on December 20th, 1938, under Section 9 of the Building Ordinance, contained a statement as to the location of the proposed building, and gave the name and resident address of the actual owner of the land "and of the building or structure," and the name and residence address of the architect or designer. The required fee was tendered, and a complete set of plans and specifications, showing clearly all parts of the proposed structure, including a plan of each floor. Said application, plans and specifications contained a full and complete statement of the facts required by said Building Ordinance, and embodied all requirements required by law or ordinance in such cases. Under Section 10 of said Building Ordinance it is made the duty of respondent to grant and issue the permit applied for, and said Ordinance is, and at all times mentioned in the petition was, in full force and effect.

By the Reno Zoning Ordinance the city is divided into a Business District, an Industrial District and a Residential District, "for the purpose of promoting the health, safety, morals, convenience, property and general welfare of the community." The site of the proposed church is in the Residential District.

Many members attending the only Roman Catholic church now in Reno have their homes and places of residence from five to ten miles distant therefrom. No point of the city limits is more than one and three-quarters miles from said church. Should the proposed new church be built, the distance any person would have to travel to attend a Roman Catholic church in Reno would be lessened at the most by approximately three-quarters of a mile.

The site of the proposed new church building is in Block 4 of Reinmiller's Subdivision. The Bishop became the owner of six Lots in said Block on September 14th, 1938, and on the same date secured an option for the purchase of four more Lots therein. Said option had not been exercised when the stipulation and agreed statement of facts was filed herein. The proposed church would be built at a cost of approximately eighteen thousand dollars.

Nothing has been done in the way of construction work to erect a church on the proposed site at the corner of Wright Street and Walker Avenue. The Lots now stand in an unimproved condition. If the proposed church is erected on these Lots, Masses will be conducted there on Sundays, and there will be church meetings. Weddings will be held at such church, and funerals will also be conducted at, to and from such church. There will also be a church bell used in connection with the regular activities of the church. The map attached to the agreed statement of facts shows that the site of the proposed church is just across Lander Street from the Billinghurst Junior High School and playground. There are many dwellings situated in close proximity to the Lots where the church is proposed to be built.

Section 1 of the "Zoning Act" (Statutes of Nevada, 1923, Chap. 125, pp. 218-220, N.C.L. 1929, §§ 1274-1280) provides that: "For the purpose of promoting the health, safety, morals, convenience, property or general welfare of the community, the city council *** may, by ordinance, regulate and restrict the height, number of stories and size of buildings, and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the location and use of buildings, structures and land for trade, industry, residence or other purposes, and establish lines designating the distance at which buildings shall be erected from the property line of any lot or lots in the said city.

Section 2 of said act reads: "For any and all of said purposes the city council may, by ordinance, divide the city into districts of such number, shape and area as may...