State, ex rel. Westminster Presbyterian Church v. Edgecomb

• Decision Date: 28 June 1922
• Docket Number: 22462
• Citation: 189 N.W. 617,108 Neb. 859
• Parties: STATE, EX REL. WESTMINSTER PRESBYTERIAN CHURCH, APPELLEE, v. R. E. EDGECOMB, APPELLANT
• Court: Nebraska Supreme Court

189 N.W. 617

108 Neb. 859

STATE, EX REL. WESTMINSTER PRESBYTERIAN CHURCH, APPELLEE, v. R. E. EDGECOMB, APPELLANT

No. 22462

Supreme Court of Nebraska

June 28, 1922

APPEAL from the district court for Douglas county: CHARLES A. GOSS JUDGE. Affirmed.

AFFIRMED.

Dana B Van Dusen and John F. Moriarty, for appellant.

B. N Robertson and Frank L. McCoy, contra.

Heard before MORRISSEY, C. J., ROSE, DEAN, ALDRICH, DAY and FLANSBURG, JJ. ROSE, J., dissenting.

OPINION

DEAN, J.

The Westminster Presbyterian Church of Omaha, relator herein, obtained a writ of mandamus compelling the chief engineer in charge of the building department of Omaha to issue to relator an official permit to build a church house or edifice on two lots in Omaha located at the northeast corner of Thirty-fifth street and Woolworth avenue. The city of Omaha, respondent herein, contends that the court erred in granting the writ and has brought the case here for review.

Under a zoning ordinance, numbered 10784, Omaha is divided into five classes of area districts, designated respectively as "A," "B," "C," "D," and "E" districts as shown by an area zone map. The church property in question is in the district designated as "E" district.

Respondent alleges that under ordinance 10784, and particularly under section 19 thereof, an owner or occupant of property within "E" district is not permitted to erect any building or buildings which will cover more than 25 per cent. of the area of such lot or parcel of ground. Respondent offered in evidence the following portions of section 19 of ordinance No. 10784:

Section 19. In the district described as 'E' district upon the area zone map, the minimum dimensions of yards and courts and the percentage of area of lots covered by buildings shall be as follows: * * * Building Area. No plot of ground or lot shall be covered with a building or buildings exceeding 25 per cent. of the area of said lot, or plot of ground."

The ordinance in question was passed and adopted by the city council of Omaha June 29, 1920, and became effective 15 days thereafter.

The relator alleges generally, and respondent admits, that the relator is a corporation organized under the laws of Nebraska "for the purpose of maintaining Christian worship and ordinances under the government and discipline of the general assembly of the Presbyerian church of the United States of America, and constructing and maintaining church edifices and other buildings in which to assemble for the worship of God, and for the administration of such offices and services as pertain to that worship, and has since the year 1887 maintained and supported a place of worship and now maintains such place of worship in the city of Omaha;" that respondent, R. E. Edgecomb, is now and during all the time material to this action has been the duly appointed and qualified building inspector of Omaha; that he is the chief engineer in charge of the building department of Omaha, which is a municipal corporation of the metropolitan class; that relator is now and ever since November, 1919, has been the owner of the two lots in question at the corner of Thirty-fifth street and Woolworth avenue, and that they "now are occupied by the relator for church purposes, in that the Reverend M. L. Laird, pastor of said church, occupies the residence thereon as a manse or parsonage, and said described property was purchased for the purpose of occupying a portion of the balance thereof in the construction and erection and maintenance of a church building suitable and to be used for the purposes for which the relator herein was organized and upon which the relator has determined and proposes to erect such church building to be used and occupied for the purpose of maintaining Christian worship and ordinances under the government and discipline * * * of the Presbyterian church; * * * that the material (to be) used in the construction of said church edifice is brick, cement, steel, iron and stone and lumber; that the outside walls are to be constructed of brick and stone with a metallic roof; that the same is to be 115 feet by 79 feet and 3 1/2 inches in dimensions and about 30 feet in height, and the estimated cost of the proposed structure is $ 74,000 and the probable time to be occupied in its erection is 12 months."

The ordinance in question was adopted pursuant to the provisions of chapter 213, Laws 1915, as amended by chapter 185, Laws 1919. The amendatory portion of the act became operative April 16, 1919, under an emergency clause. The act provides generally that cities of the metropolitan class shall have power by ordinance to regulate and limit the height and bulk of buildings; that the city council may divide the city into districts; that the regulation as to the height and bulk of buildings and the area of yards, courts or open spaces shall be uniform. It is further provided:

"Such regulation shall be designed to secure the safety from fire and other dangers, and to promote the public health and welfare, including, so far as conditions may permit, provisions for adequate light, air and convenience of access. The city council shall pay reasonable regard to the character of buildings existing in such district, the value of the land and the uses to which it may be put, to the end that such regulation may promote the public health, safety and welfare, and the most desirable use for which the land in each district may be adopted, and may tend to conserve the value of buildings and enhance the value of land throughout the city." Section 1.

The act also provides that the city council shall have power to regulate and restrict the location of trades and industries and the location of buildings designed for specific uses, and that "Such regulations shall be designated to promote the public health, safety and general welfare. The city council shall give reasonable consideration among other things to the character of the district, its peculiar suitability for particular uses to the conservation of property values and the direction of building development in accord with a well-considered plan." Section 2.

The act in question further provides for a board, consisting of five members, to be known as a city planning commission, which board shall acquire or prepare a city plan...