State ex rel. Synod of Ohio of United Lutheran Church in America v. Joseph

• Decision Date: 28 January 1942
• Docket Number: 28697.
• Citation: 39 N.E.2d 515,139 Ohio St. 229
• Parties: STATE ex rel. SYNOD OF OHIO OF UNITED LUTHERAN CHURCH IN AMERICA v. JOSEPH et al.
• Court: Ohio Supreme Court

39 N.E.2d 515

139 Ohio St. 229

STATE ex rel. SYNOD OF OHIO OF UNITED LUTHERAN CHURCH IN AMERICA v. JOSEPH et al.

No. 28697.

Supreme Court of Ohio

January 28, 1942

Syllabus by the Court.

1. The relator in an action of mandamus has no standing to attack the constitutional validity of the power the exercise of which relator is asking the court to compel.

2. A municipal zoning ordinance which provides that 'in class I districts, single family dwelling houses only * * * shall be permitted * * * provided that * * * churches, schools public libraries * * * may be erected and used within such district by special permit granted by the zoning commission and the village council' permits churches to be erected in class I districts but subject to the imposition of reasonable restrictions.

3. When under such ordinance the village commissioners sit in joint session with the zoning commission to pass upon applications for special permits, they are acting in an administrative capacity only.

4. Refusal of a special permit to erect a church in a residential district in pursuance of an administrative policy that no church shall be erected in such district while property in the business district is still available, bears no substantial relation to the public health, safety, morals or general welfare, and amounts to an unreasonable and arbitrary interference with the rights of private property guaranteed by Sections 1 and 19, Article I of the Ohio Constitution, and Section 1 of the Fourteenth Amendment to the Federal Constitution.

Appeal from Court of Appeals, Franklin County.

Relator, an Ohio corporation not for profit and the parent organization for the United Lutheran Church in the state of Ohio, by this action in mandamus seeks to compel the respondents, constituting all the members of the zoning commission and the village commission, and the building inspector of the village of Upper Arlington, to issue to the relator a permit to build a church on a site in the class I district of the village. This suit was instituted in the Franklin county Court of Appeals, after the village commission and the zoning commission in joint session had, on June 24, 1940, refused relator's application for a permit.

The village commission of Upper Arlington, a suburb of Columbus in 1927 passed a comprehensive zoning ordinance dividing the village into use districts of four classes, as follows 'In class I districts, single family dwelling houses only (with necessary, proper and approved outbuildings and fences) shall be permitted, and such houses shall be occupied by not more than one family per house, 'family' being defined as any number of persons living and cooking together as a single housekeeping unit. Provided that any building heretofore erected or now in use within such district for residence of more than one family shall be permitted to continue in such use and that churches, schools, public libraries, public museums, community center buildings, public recreation buildings, private clubs, or public parks and playgrounds may be erected and used within such district by special permit granted by the zoning commission and the village council, who shall administer the ordinance as hereinafter provided for.' (Ordinance 219, Article I Section 5.) Class II is restricted to two-family dwelling houses, but any building or use permitted in class I districts is permitted in class II, but subject to the same conditions as imposed in class I. (Article I, Sections 6 and 6d.) 'In class III districts, buildings and premises may be erected and used for retail stores, banks, offices, studios, telephone exchanges, fire stations, theatres (including moving pictures), halls, private clubs, restaurants, bakeries, gasoline filling stations, or any building or use which in the opinion of the zoning commission is of a character similar to those enumerated in this section.' (Article I, Section 7.) Class IV consists entirely of one site just across the street from the property upon which relator desires to build its church. On this site there is a suburban telephone exchange, about the height of a two-story building. The zoning ordinance further provides that 'all buildings and structures permitted in class I shall be permitted in class II and class III districts. All buildings and structures permitted in class II shall be permitted in class III districts.' (Article I, Section 3.)

The respondents' refusal to grant a special permit to the relator was the culmination of six months of negotiations, extending over the first half of the year 1940. The pertinent stages of these negotiations are here set out chronologically.

In November 1939, relator had taken an option on another site in Upper Arlington, at the corner of Northwest boulevard and Barrington road, referred to in the course of this litigation as 'site No. 1.' February 4, 1940, relator sent a letter to the zoning commission asking permission to build a church on this site. February 7, the zoning commission denied this request, as well as that of the First Community Church to build a church on another site in the class I district. Relator's letter was, however, accepted by the zoning commission as an application to the joint zoning and village commissions for a special permit under section 5 of the ordinance. February 14, the village and zoning commissions, each having a membership of five, but with two members in common, in joint session acted upon this application for a special permit, and unanimously rejected it, passing a motion 'that all applications for permits to erect churches in class I, or single family house districts, as long as class III, or business property is available, be refused.' At this and at subsequent meetings, villagers owning property in the vicinity expressed their objections to the erection of the proposed church.

On March 21, relator through its missionary superintendent, applied to the zoning commission for permission to build on another site, 'site No. 2,' on the east side of Northwest boulevard, diagonally across from 'site No. 1,' and also in the class I district. April 3, the zoning commission, after hearing villagers' objections to this location and arguments in its favor from the owner of the property who owned more property in this vicinity than anyone else, denied the application. At this meeting it was decided that 'the zoning commission should take the initiative in finding proposed locations for churches * * * and publish a description of those locations which might in its opinion be used for church structures.'

April 10, the zoning and village commissions met in joint session, five of the eight members being present. The minutes of the meeting state that 'the members of both commissions were of the unanimous opinion that church groups desirous of locating in this village should be given every consideration and assistance in finding sites for their respective church structures that would be desirable, and at the same time, raise the least objections from the property owners.' A resolution was passed by a vote of four to one 'that in our present judgment, the following sites in class I property would be suitable and appropriate for the erection of churches:

'Site I--lots 13, 14, 15, 16, 17 and 18 in block 163.

'Site II--lots 10, 11, 12, 13, 14 and 15 in block 164, and with any request for a church on either site shall be an agreement to maintain 30 per cent of the acreage inside the set-back lines, as a parking lot which shall not extend beyond the set-back lines, also a satisfactory agreement regarding the use of bells, chimes, etc.' A further resolution was passed providing that 'should applications be received for permission to erect churches on class III property, in our present judgment, generally enough class I or class II property, adjoining class III property, should be rezoned so as to permit enough land for church purposes.'

The relator had filed no application for a permit to build on either of the two sites referred to in the resolution of April 10. In fact, at the meeting a representative of the relator expressed dissatisfaction with the two sites suggested and intimated that legal proceedings might have to be brought to get a permit for the original 'site No. 1.' But by the next morning there was a change of mind, and a meeting was arranged in the offices of the Upper Arlington Company for the purchase of the first of the two proposed sites--lots 13 to 18 in block 163, referred to hereafter as 'site No. 3.' A member of the zoning commission and the president of the village commission were present at this meeting. They informally advised relator's missionary superintendent that the action of April 10 was not final and, in effect, that the relator should first get its application to build a church on this site formally accepted before purchasing the property. On April 19 at a meeting of the zoning commission one of its members was authorized to notify the missionary superintendent of the difference of opinion among the commissioners as to the advisability of permitting a church to be erected on the two sites proposed in the resolution of April 10.

On May 6, the following letter was addressed to the joint commission by the superintendent:

'Gentlemen:

'In reference to our petition for permit to build a church on lots 13, 14, 15, 16, 17, 18, block 163 in the Kingswood subdivision of Upper Arlington, we request that permission be given to build such church subject to the following restrictions, conditions, and compliances which we agree to, and where applicable to put into effect.

'First, complete plans and specifications, in accordance with the submitted sketches, shall be given to you for your verification, approval, certified and left on file,

...