Zoning Restrictions (Parochial Schools, Houses Occupied by Religious), Bequests for Masses, Religion and Adoption Laws
Zoning Restrictions (Parochial Schools, Houses Occupied by Religious), Bequests for Masses, Religion and Adoption Laws
Recommended Citation
0 (1955) "Zoning Restrictions (Parochial Schools, Houses Occupied by Religious) , Bequests for Masses
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Religion and Adoption Laws," The Catholic Lawyer: Vol. 1 : No. 2 , Article 10. Available at: https://scholarship.law.stjohns.edu/tcl/vol1/iss2/10
RECENT
DECISIONS
Zoning Restrictions
ParochialSchools
The constitutionality of zoning
regulations which permit public schools in
residential zones, but exclude private and
parochial schools, has been examined
recently by the courts of two states.
The Wisconsin Supreme Court, in State
ex rel. Wisconsin Lutheran High School
Conference v. Sinar, 267 Wis. 91, 65 N.W.
2d 43 (1954), upheld the constitutionality
of such a zoning ordinance against the claim
that it was unreasonable, arbitrary and
discriminatory. The Lutheran High School
Conference sought mandamus to compel
the city building inspector to issue a permit
for construction of a private high school
within a zoning area permitting public high
schools only. The Court found that for
zoning purposes there was a reasonable and
substantial distinction between a public and
private high school, and consequently, the
regulation was valid. The distinction which
the Court held justified the restrictions in
the zoning ordinance was that the public
school serves the area without
discrimination, whereas the parochial and private
schools discriminate in selecting pupils who
may attend.
A petition for certiorari to the United
States Supreme Court has been filed by the
Lutheran High School Conference [23
U. S. Law Week 3227 (1955) 1, and to date
has not been determined. Petitioners in their
applications contend that the ordinance
permitting public schools, but prohibiting
private and parochial schools, in a
residential zone is repugnant to constitutional
provisions on two theories: first, that the
ordinance is arbitrary, unreasonable and
discriminatory, and thus violates the "due
process" clause of the Fourteenth
Amendment to the United States Constitution;
second, that such provisions are contrary
to the "equal protection" clause in the
Federal Constitution.
Although the Wisconsin Supreme Court
drew a distinction between private and
parochial schools on the one hand, and
public schools on the other, the distinction
does not relate to the public health, safety,
morals or general welfare. In the absence
of such a relationship, the zoning ordinance
would seem invalid since it would be a
denial of equal protection of the laws. In
enacting zoning ordinances, the legislative
body may classify where there is a
reasonable basis for the classification. Since there
is no reasonable basis in classifying schools
into public schools and private and
parochial schools for zoning purposes, equal
protection of the laws is not accorded to
the private and parochial schools.
The weight of authority indicates that
regulations based on such distinctions are
not valid. Recently, a similar factual
pattern was presented to a California appellate
court in Roman Catholic Welfare
Corporation of San Franciscov. City of Piedmont,
278 P. 2d 943 (Cal. App. 1955). The
Court there held the ordinance invalid since
no reasonable ground was suggested for
permitting public schools, but prohibiting
all other schools teaching the same subjects
to the same age groups, in the zoned area.
In Roman CatholicArchbishop v. Baker,
140 Ore. 600, 15 P. 2d 391 (1932), the
validity of a zoning ordinance which
permitted the City Council discretion to refuse
permission to erect a parochial school was
attacked. The Court, in striking down the
statute as arbitrary said, "The right to own
carries with it the right to use that property
in any manner that the owner may desire
so long as such use will not impair the
public health, peace, safety, or general
welfare. The kind of school proposed to be
erected will not interfere with the public
health; it cannot affect the public peace; it
surely will not endanger the public safety;
and by all civilized peoples, an educational
institution, whose curriculum complies with
the state law, is considered an aid to the
general welfare." [Roman Catholic
Archbishop v. Baker, supra at 395].
Regulations permitting public schools
but not private schools in a residential area
have been held invalid. [City of Miami
Beach v. State ex rel. Lear, 128 Fla. 750,
175 So. 537 (1937); Catholic Bishop of
Chicago v. Kingery, 371 Ill. 257, 20 N.E.
2d 583 (1939); Phillips v. City of
Homewood, 255 Ala. 180, 50 So. 2d 267 (1951) ].
The Florida Supreme Court, in so holding,
declared, "What objectionable
characteristic touching the co (...truncated)