*1 Appeals Decatur, of Decatur Board of Company Witnesses. of Jehovah’s Indiana February 1, 29,119. 1954.] Filed [No. *2 Anderson,
Robert S. Volge- Charles K. Whitted and wede, Whitted, Anderson Decatur, all ap- & for pellant.
Hayden Covington, Brooklyn, C. York, New Smith, Decatur, Custer & appellee. for Appellee application filed its with the Bobbitt, J. proper city Decatur, officer of the Indiana, seeking permit provisions a under city zoning of the ordi- nance for the seating construction a church with a capacity a of 150 on vacant lot by appellee owned at corner of northeast Ninth and Monroe Streets in city. feet, said The lot is 66 feet x 108 and the size of building proposed is 34 feet x 60 feet. building of non- because permit was denied The the fail- line and compliance setback with the required by space parking provide off-street ure ruling taken was appeal this An from the ordinance. Zoning requesting a Appeals variance to the Board of asking . the “. . same of the terms of the ordinance enjoyed parking as privilege to use Ninth Street N. city organizations streets.” on various other church request for Zoning Appeals denied The Board petition for writ appellee then filed variance cause was Circuit Court. in the Adams certiorari appellee and petition of the verified there submitted on judgment re- appellant. From return the verified appeal is this versing Board action prosecuted. applicable parts of *3 as follows: of Decatur are
“Article IV. Specifications: 5. Yard
“Sec. front, Buildings back from shall be set “a. to establish all lots in order lines of rear open The minimum set side Front, designed Yards. Rear Side areas purposes shall be back for such as follows: Yard:
“b. Front twenty percent (20%) of “(1) Normally, forty (40) required depth lot-maximum feet. twenty-five percent “(2) In a block where buildings, occupied by are (25%) of lots yards average the front depth establishes of front yard the block. Parking of Motor 7. Vehicles. “Sec. Off-street relating parking Specifications to off-street “a. XIII of contained Article of motor vehicles are this Ordinance.
“Article XIII. Parking
“Off-street for Motor Vehicles. Parking 1. Requirements.
“Sec. congestion “In order to lessen avoid or safety streets and promote to secure welfare, tablished to erected, is any following regulations hereby are es- require building that each hereafter structurally altered, reconstructed or arranged, designed intended or to be used for following uses, provide shall off-street parking space, fifty of not than less two hundred (250) square space, feet for each the build- within ing, on other premises surrounding building, on the premises specified when as follows: Theaters; Sports “c. Arenas; Churches; Tem- ples; Mortuaries; places Congregation: Other of for each six (1) parking space One (6) vehicle seats." Section permits Articlé IV building- of churches in a residential district. building application rejected permit for the was following, for the reasons: average depth yards of the front in the the along Street, block Monroe on which street proposed faces, church feet 18.48 from the building property the proposed line. The as shown plan only prop- submitted is from feet erty line. seating capacity 2. A requires of 150 6,250 square parking, feet off-street whereas only 2,244 square provided feet appli- are in the cation. *4 Zoning regulations justifi ordinances and find their police power cation in the Landay of the state. v. Mac- (1938), 293, 460, Williams 173 Md. 196 A. 114 984; Yokley, Zoning Practice, L. R. A. Law & 2d 1, p. §15, ed. Vol. balancing problem of are faced with
We here power those police with under the interests asserted guarantee of wor- of freedom under Constitutional ship assembly. imposed
Appellee that the restrictions contends property pertaining to setback Section of Article IV 1(c) lines, IV, and Section 7 of Article Section parking are pertaining XIII to off-street of Article unreasonable, arbitrary, as capricious and unlawful ap- property in its applied particular described to its applied so plication permit when for a because they Amendments violate the First Fourteenth of the United States. Constitution application of said sections
Appellant that the asserts property and valid exercise appellee’s a reasonable is the discretion police power; it was that within grant, zoning grant, the vari- not to board illegality showing in the ance; no and that there is proceedings. alleged petition certiorari illegality in the zoning board, of certain in the enforcement against appel-
restrictions contained in the ordinance surrounding facts, violated property lee’s under provisions certain the federal constitution. highest illegality order.
Unconstitutionality v. (1940), Appeals Moyer Board See: Jur., 905; 2d 11 Am. E. 27 N. App. Ind. Law, §148, p. 827. Constitutional question of presented the properly
Appellee has (parts) provisions unconstitutionality of certain property. particular applied to its the ordinance Refining Ind. v. Chicago, Sinclair Co. City East 2d 459. E.N. Ind. upon its own set must stand case Each Refining Chicago, Ind. Sinclair East facts; *5 88 supra; Zoning Yokley,
Co. Practice, Law 2 & 1, ed. §28, p. 40; 2. Vol. and a may generally applied be valid but invalid as property; certain City Women’s Kansas St. Andrew City, Soc. v. (1932), Cir., 593; Kansas Mo. 58 8 F. 2d People Joseph Chicago ex rel. Lumber Co. v. (1949), 321, 592, 402 Ill. 83 E. 2d N. Fairmont Inv. Co. (1948), 625, v. Woermann 26; 357 Mo. 210 S. 2dW. McQuillin Municipal Corporations ed.) on (3d 8, Vol. §25.63, p. 112, and cases there cited. question presented
The sole thus is: Are the restric- by imposed tions the above-mentioned sections Zoning regulations Decatur Ordinance reasonable on building of a church at the location and under the facts and by circumstances as shown the record before us?
First: shall We consider the restriction found pertaining yards Section 5 Article IV front or property setback lines. imposed they restrictions cannot be unless
bear health, substantial safety, relation to the general
morals, Cambridge or welfare. Nectow v. (1928), 183, 447, U. 277 S. 48 S. Ct. 72 L. Ed. 842. worship
Freedom of is a protected fundamental by the Fourteenth Amendment of the United States Constitution Chaplinsky from invasion state action. Hampshire v. New (1942), 568, 766, 62 315 U. S. S. Ct. 1031; 86 L. Ed. Illinois ex rel. McCollum v. Board of (1948), 203, Education 461, 333 68 U. S. S. Ct. 92 649, L. Ed. 2 A. L. R. 2d 1338.
However, subject churches to such regulations may necessary promote reasonable as public health, safety welfare. Cantwell (1940), v. 296, 900, Connecticut 310 60 U. S. S. Ct.
89 1213, 1352; Virginia 84 L. 128 A. Ed. L. R. State West 624, (1943), Board Education v. Barnette U. S. 674; 1178, 1628, L. A. R. 63 S. Ed. L. Com- Ct. monwealth Mass. Mass. Prince 46 N. 2d A. R. E. L. municipality may, part
It is well settled that a *6 zoning comprehensive plan, aof reasonable establish yard lines, only the restriction setback or front being provisions that such shall be reasonable. Zoning Yokley, (2d ed.), Law & Practice Vol. McQuillin 406; (3d §164, p. Municipal Corporations on ed.), 8, §25.138, p. 237; Jur., 11 Am. Constitutional Vol. Law, §302, p. 1073. a inter- of what is reasonable no test is certain
There rights property enjoyment of the of or the ference with rights guaranteed by the personal Constitu- the Law, §304, p. Jur., 11 Am. Constitutional tion. general of definition reasonableness 1079. No upon must human possible, determination rest but its is judgment applied to facts and circumstances the Zoning Practice, Yokley, particular Law & case. each Jur., 40, supra; p. Consti- §28, Am. (2d ed.), Vol. 1079, supra. Law, §304, p. tutional question must validity here of the restrictions they necessary the theory are the that upon
rest public. safety, or welfare health tending to show record no evidence findWe arbitrary feet line of 18.48 is that setback it property, or that appellant’s capricious applied as upon the freedom places restriction an unreasonable assembly. The enforcement worship or against prohibition aas not act will this restriction appellee can church because proposed of the judg- our requirement. In reasonably comply with (b) of the Ordinance ment, IV, Article §5 city regulation Decatur not is an unreasonable applied appellee’s property is, therefore, valid exercise police power in the interest of health welfare. provision
Second: We now consider the of said ordi- pertaining parking, nance to off-street presents question impression of first in this state. provisions appellee Under the of the ordinance required 6,250 square provide park- feet of off-street ing automobiles, for the accommodation of or one parking space for each six seats in church.
The evidence before the board that discloses seating capacity offered to reduce the proposed 100; church from 150 that services were held p. from 7:80 or o’clock to ten o’clock m. on Fri- days, p. Sundays; and at 3:45 m. on there is no change factory shift at workers either these hours, heavy and traffic which is on at Ninth Street change factory the time of in shifts of is at workers “very proposed its ebb it low” at hours when *7 average services, to hold services. The attendance at hearing zoning board, 40, at the time of before the was expected and the attendance in the new church is 45. Appellee hearing park- at the asserted the that available ing ample space be to the actual would accommodate attend members who would services. evidence fur- ther that in discloses three other churches the imme- vicinity, present which were built before the diate zoning enacted, both ordinance was use Monroe and parking. for Ninth Streets regarding any appellee is silent effort of record space parking other than on to secure the use the lot by by provided §3(b) (d) occupied the church does the record show Article XIII.1 Nor whether Space parking may 3(b). for off-street vehicle be Sec. occupied by building serves, the which it provided the lot on any space appellee. or not such was to Fur- available ther, part record no discloses effort on zoning space parking board ascertain whether other any appellee, present was available nor did evidence to show that no such facilities were available. a church
The law is well that the settled may prohibited not be in a district. State residential Bishop Reno v. Hill
ex rel. Roman Catholic 231, 217; (1939), ex rel. 59 Nev. 90 P. 2d State (1942), Synod Joseph St. 139 Ohio Ohio 515, 1274; Ellsworth v. N. E. 2d 138 A. L. R. 242; (1945), P. North 2d Gercke Ariz. Village Plandome Shore Unitarian Soc. v. Zoning 524; Yokley, Y. 200 Misc.
109 N. 2dS. 110; 2, §222, p. Am. (2d ed.), Law Practice & Vol. Jur., Zoning, §125, p. 1010. grant a variance
If the refusal of board in of a from a residential results the exclusion church illegal If district, be reversed.2 such action is and must parking regulation for churches requiring off-street in the church is of seats proportion to the number ground sustained, that upon the it must be morals, health, welfare to the benefit regula- safety outweighs restriction which such worship and upon the of freedom places tion assembly. church the small do not contend
Appellants adversely any way affect either proposed will here adjacent Appeals, by on approval upon the Board of or areas building provided (300) feet of such hundred within three permit use. property zoned to such requires congregation, place (d) or other A church nearby not other parking require at wheh facilities times uses_would_ may joint facilities, parking into enter their established agreement and, if facilities such agreement of such the use may Zoning Appeals, relieve Board said approved Board of establishing *8 congregation its place from other or the Church parking facilities. vehicle own off-street being p. 571, §53-788, 174, §87, Burns’ ch. Acts 2. See Replacement. morals, the health or or that this upon restriction predicated the upon proposition churches is designed protect public reg- health or morals. Such ulations are to be found in ordinances of other they predicated upon cities and theory are the that constantly increasing congestion because of the traffic in urban multiplied by centers traffic hazards are the parking along regulation of cars the street and such a is necessary safety and essential to the welfare and public. the
It is no doubt true that automobile traffic often chokes endangers general the streets and both and the traveling public. However, rarely, ever, it is if that entering leaving people a church cause or contribute to traffic accidents.3 It would seem reasonable to assume regulation necessary if that is in the interest of the safety, general public, convenience and welfare regulated upon should be which has direct effect be, is, generally such can welfare. This done signs regulations police, traffic and other reasonable using imposed upon persons alike all streets in the vicinity churches, without undue interference with right worship assembly. and free
When, case, under facts this the welfare and safety neighborhood people placed in the side, right justice the scales of on one and the to freedom assembly worship placed other, on the weighs heavily guaranteeing on the balance side assembly worship peaceful and to God ac- regardless cording conscience, to the dictates of faith or creed. seating
Appellee proposes capacity limit its average expected attendance states that is 45 proposed appears It the record that people. from Tampa, City of Fla. State v. So. 2d See also: 78. *9 church is site bounded streets on two sides. There no evidence that such streets are not of the same width city conforming as other in streets Decatur. Even approximately line established setback there are 2,000 square parking provided. feet of off-street Five although blocks, other churches within a radius of five prior zoning built ordinance, to the enactment of the use parking. the streets for Those in the same block as proposed location use both Monroe and Ninth parking. Streets for Supreme City Court of Florida in State v.
Tampa, pro Fla. 48 So. 2d held similar city Tampa vision of the ordinance of the and, page 2d, invalid at 79 of So. said: congregating people “The contention that for re- ligious congestion purposes cause such as to create very a port sup- traffic hazard has little in substance Religious normally it. are for services brief periods days two or three in the and week this at lightest early hours when trafile ing, in the morn- — evening early in the and at 10:00 and 11:00 Sundays. Many one, on churches like this are in areas, heavy residential where traffic is not where there are side streets and other facilities for parking. The church involved here is a small ample church which is shown have off-street parking space ordinary purposes. for all It would rarely require parking space if ever on the street in front of the church. Even if rare occasions should require parking a few cars on the streets we cannot say traffic hazard would be created. This is certainly a case in balance of convenience range rule judgment might as to applied.” in squares the factual situation believe now before us We Supreme Court of Florida that before with State supra. Tampa, Fla., services evenings Sunday Friday and' at held on afternoons are It at its lowest has traffic is ebb. off-street times when parking facilities which it claims will be sufficient for ordinary services, congregation all and if some of part are forced to use or Monroe Ninth Street Street parking we cannot see a traffic how hazard would be justice favor, tip created sufficient the scales of police power in the interest of welfare against safety, fundamental freedom worship peaceful assembly. particular ap- Under the set of in this case the facts plication provision appellee’s of this of the ordinance to only prohibit property not would *10 right church, proposed also of but would restrict worship assembly an extent that out- freedom of and to weighs any safety, to the health and benefit police public, and in a situation the welfare of the such yield of freedom power must to the constitutional State v. Tampa, assembly. Fla. worship of and of Synod 78, supra; (1950), 2d State ex rel. Ohio 48 So. of 229, 515, Joseph E. 2d 138 (1942), 39 N. 139 Ohio St. v. (1944), 1274, supra; City Sherman v. Simms A. L. R. 415; ex rel. 183 2d State Roman 143 Tex. S. W. Bishop Reno v. Hill Nev. Catholic ex rel. Howell Meador, Mayor 217, supra; State P. 2d 368, 154 E. 876. (1930), 109 S. W. Va. judgment 1(c) XIII of Article
In Section our city it of Decatur as has been the factual appellee’s property in sit- applied to and contravenes First us uation before to the Amendments Constitution Fourteenth worship they pertain to freedom the United States appli- in their assembly, and are unconstitutional property. particular appellee’s cation good purpose could that no to the court appearing It trial, judgment granting o.f a new by the be served with instructions remanded the cause is reversed findings modify to the trial court to restate the judgment opinion. conform this
Judgment reversed with instructions. J.,
Draper, Gilkison, concur. C..J. and Emmert, J., Flanagan, opinion dissents with in which J., concurs. Opinion
Dissenting Class, Decatur, city of the Fifth Emmert, J. county County population and has a seat of Adams according highways 7,271 to the 1950 census. State through city, and each 33 and lead into and high type paved roadway. application for the
is a building permit proposed church build- discloses ing corner of the located on the northeast was high- intersection of Monroe and Ninth State Streets. ways on the over Monroe Street and 33 are routed controversy, Sunday and on aft- south side lot heavy on Monroe particularly ernoon the traffic neigh- density Street, that one of the near and of such to ten minutes in order bors often has to wait from five onto Monroe At the to back his car from his lot Street. hearing Appeals, the Board time of the before parking permitted sides of Ninth Street. was on both *11 a Lutheran two blocks west on There was Church Street, four blocks east on Monroe a Methodist Church Street, Brethren one and a United Church block Monroe ' ' being Street, all of these- churches south on Ninth zoning adoption prior the ordi- there to. located Parking only permitted one side on of Monroe nance. highways, the Street, two state is the route which sides of parked on both this street. automobiles are but rectangular appellee was the The lot owned 108 on Monroe shape 66 feet Street and extended application permit the The for feet on Ninth Street. building 14 feet from the to be set back was the discloses rectangular line of Monroe and was to be Street facing feet shape, feet Monroe and 60 wide Street building long parallel to have The was Ninth Street. seating capacity persons. The ordinance of 150 building required the to be back 18.48 feet from set Street, the Monroe and the to do so was one of failure rejection building permit. two reasons for rejection for the other reason 6,250 permit required square feet of was the ordinance application only parking space, off-street whereas 2,244 square parking. feet disclosed for off-street arenas, churches, required theaters, sports congregation mortuaries, temples, places of and other parking space square one of 250 feet have vehicle seating capacity, would for each six seats of which require appellee parking space for 25 to have automobiles. argued us, appeal counsel
At the time the was before contending that the appellee that he was not stated announced in case were within rule facts this Hopkins (1886), 118 Yick U. S. S. Ct. Wo v. appellee’s position it L. Ed. but was applied to the was unconsti- the ordinance as Zoning very carefully Appeals tutional. The Board religious appellee from its beliefs of excluded consideration. regulations
Zoning been sus ordinances and have police power in tained as a reasonable exercise morals, health, safety, the interest of Advertising Co. v. welfare. General Outdoor 85, 97, Indianapolis 172 N. 202 Ind. (2d ed.) 309; Yokley, Law & Practice E. §20. city Our streets are too often choked with automobiles endanger general pub- traffic, and automobile traveling public, were lic as as the because cities well planned buggy transportation. for horse and What
97 might have been an of police unreasonable exercise powers days in the may clearly TModel valid growing now automobile, under the menace which in taking the Nation has been an annual toll of more 30,000 than injured.1 killed and over a million zoning No regu- better statement of the reason for has lations been made than that Mr. Justice Suther- land 365, in Euclid 386, v. Ambler Co. 272 S.U. 47 S. Ct. L. Ed. A. L. R. 1016:2
“Building origin. began They zone are of laws modern country twenty-five years ago. in this about Until recent years, urban comparatively simple; life was but with great prob- population, increase and concentration of constantly lems have developed, developing, are require, require, and will continue additional occupation respect restrictions in use and private Regulations, lands in urban communities.
wisdom, necessity validity which, applied existing they conditions, apparent are so are now uniformly sustained, ago, century or even half a ago, century probably rejected would have been as ar- 38,000 persons 1. traffic were killed in motor vehicle in the period 1,350,000 injured. United in 1952. In the States same were published by Safety Council, Accident Facts the National Ed., p. 43: 1,277 During period persons same Indiana were killed. Fatalities, Indiana Traffic 1952 Accident Records Bureau of the p. Police, 33,382 persons injured Indiana 1. State were during period. Indiana the same registration The motor vehicles for Indiana discloses the problem: increasing traffic Passenger Types Year All Cars 897,465 1,222,552 1946 1947 1948 1949 1950 1951 1952 1,323,777 952,595 1,474,582 1,302,398 1,059,447 1,090,255 1,907,822
1,488,517 1,658,326 1,681,573 2,080,181 2,105,577 Yearly Registrations From Motor Vehicles. —Bureau 5,000 Village population had a of from Euclid square 10,000 and an area from to 14 miles._ part substantially reduced of a considerable the value appellee’s lands. bitrary regulations sustained, oppressive. are Such *13 complex day, under the of our for reasons conditions analogous justify regulations, to those which traffic rapid the which before advent automobiles and trans- fatally railways, it street have condemned as would been arbitrary fin there no and unreasonable. And this is meaning inconsistency, for the of constitutional while guaranties varies, application scope the never their expand must to the and different contract meet new coming constantly the conditions which are within field changing world, impossible operation. it of their In a is degree although it a that should be otherwise. But elasticity meaning, imparted, to the to is thus not but application principles, the constitutional statutes giving weight ordinances, due to the new which after conditions, clearly not to conform to the are found Constitution, course, must fall.” religious freedom, concepts speech freedom press, and the are embodied the Fourteenth Amendment, have been construed as absolute never regulation rights, beyond power of reasonable Religious power. does in police freedom not under the polygamy. Reynolds right practice v. United clude 244; 145, (1878), 25 L. Ed. Davis 98 U. S. States v. 333, 299, L. (1890), 10 S. Ct. 33 Ed. Beason 133 U. S. (1890), 637; 136 v. United States U. S. Mormon Church grant 792, Ed. Nor does it a 1, 34 L. 10 S. Ct. child child parent have her violate to a (1944), 321 Prince v. Mass. U. of a state. laws labor 158, 438, L. 645.3 Ed. 64 S. Ct. S. religious scarcely freedom contended
It could requiring from prevent of Decatur would immunity against grant press not an does 3. Freedom v. Associated Press S. conspiracies trade. U. in restraint 1, 1416, (1945), L. Ed. 2013. See also Ct. S. 65 S. 326 U. 190, (1943), Broadcasting 319 U. S. 63 S. Ct. Co. v. U. S. Natl. 1344; Pub. Plains Co. Mabee White 87 L. Ed. L. Ed. 607. Ct. 66 S. S.U. swing if the church to the outside. Even doors to religious a fire resistant doctrine of a church condemned roof, powers city, police in the exercise of the safety of the as well as members property, require to be properly the roof could other Many other ex- constructed of fire-resistant material.4 amples could be stated. quite
It evident that the members going just church could be killed dead to and from as going game. a and from theater or basketball proper police power protect It exercise of the negligence appellee’s members from their as well own negligence traveling public. as from the There holding just logic in that the would be as much members *14 going required appellee of not to when to church were holding regulations comply in that with the traffic as required pro- appellee the to make reasonable is not lessening by visions for a of the traffic hazards off- parking. street proper police power
If it was a exercise of the for require city by appellee to the its ordinance the average comply to with the setback line of the resi- bearing dences, only very a remote on traffic has hazards, a it a was reasonable exercise of the fortiori require appellee police power provide space for park 25 cars to off the streets. The of religious freedom is not violated in either exercise its case. controversy as to kind of a church roof is not Church Bryan early Station, In 1800’s the church at Ken-
unknown. doctrine, tucky, of sustained a schism on matters the members .groups, groups snlitting at different worship but two both continued to into building. times in same When it needed a new group group a did not want metal roof while the other roof one satisfactorily compromised by covering did. The matter was one- shingles, Virginia and one-half roof with with metal. half of the (1922), Howard, Bryan pp. & Station Heroes Heroines Webb 49, 50. California, large Porterville, not as City is of The Bishop Presiding Corporation Decatur.5 In of of City Latter-Day Saints Jesus Christ Church of of of 2d 2d P. Porterville 90 C. A. decided Appeals of California Fourth District Court religious not did violate that the of Porterville excluding an appellant by it from area freedom the solely city for the erection of the zoned which was single dwellings. a family court “It is matter said: knowledge people considerable num that in common parking and and that traffic bers assemble churches gather. problems would be exist where crowds This single family limited to dwell particularly in areas true ings. appreciable necessarily amount of is an There ‘youth of church and with the conduct noise connected may many other factors well These and activities.’ legislative body in into enter the determination drawing districts, a determination the lines between city.” 659) (Page primarily province of the Supreme ap dismissed the Court United States peal court want a substantial from the California court, question. U. S. 805. Later same federal Vinson, speaking the ef said: Chief Justice “When upon fect a the exercise First statute relatively and the small Amendment freedoms substantial, it is protected obvious interest showing danger rigid requiring imminent test absurdity. security of the is an We re to the Nation substantiality appeal cently an for want dismissed *15 group conténded that its First Amend a church rights by municipal a ordi were violated ment building of in certain preventing the churches nance Corporation Presiding Bishop areas. residential Latter-Day Saints Jesus Christ the Church (1949). Porterville, American U. Communi- S. 6,270; 6,904. 1940 census of Porterville census 5.
1Ó1 382, 397, 398, cations Assn. v. Douds 339 U. S. 70 S. Ct. 94 L. Ed. equal it process protection
If is not a denial of due or entirely law to exclude church from an area single family residences, zoned for it a denial of is not process equal require due protection law to provide church a reasonable amount off-street parking space. deprived Nor has been any granted constitutional the Indiana Consti- tution. judgment should reversed.
Flanagan, J., concurs. Reported in 117 N. E. 2d 115. Note. — v. State of
Eastin Indiana. 28,998. February 3, Filed [No. 1954.]