Zoning Restrictions (Parochial Schools, Houses Occupied by Religious), Bequests for Masses, Religion and Adoption Laws

The Catholic Lawyer, Mar 2016

Published on 03/23/16

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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 1 This Recent Decisions is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information , please contact 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)


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Zoning Restrictions (Parochial Schools, Houses Occupied by Religious), Bequests for Masses, Religion and Adoption Laws, The Catholic Lawyer, 2016, pp. 10, Volume 1, Issue 2,