Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. City of Porterville

MUSSELL, J.

This appeal is from a judgment dismissing plaintiff’s petition for writ of mandate. The judgment was based on an order sustaining the demurrer of defendants to the petition without leave to amend, dismissing the same and quashing the alternative writ of mandate theretofore issued.

The plaintiff, by its petition for a writ of mandate, sought to compel the defendants to issue a permit for the construction of a church on property owned by plaintiff in the city of Porterville. Plaintiff alleged that its application to erect a church upon its property was duly filed with the proper city officials and that defendant city building inspector refused to issue a permit for the erection of the church on the ground that the

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property involved was zoned by the city solely for the erection of single family dwellings.

A copy of the zoning ordinance of the city of Porterville was attached to the petition. By its provisions, as far as applicable. here, the city was zoned as follows: R-l, wherein buildings are restricted to single family residences; R-2, to duplex or two-family residences; R-3, to multiple residences, and R-4, to permit unlimited residences. In R-l, only single family dwellings may be erected; in R-2, there are permitted all uses that are permitted under R-l, plus duplexes and two-family residences; in R-3, all uses of R-l and R-2 are permitted, plus apartment houses, multiple family dwellings, hotels, boarding and lodging houses, clubs, fraternities, sororities, hospitals, etc. In R-4 called “unlimited residence,” all uses of the preceding zones are permitted, plus libraries, museums, schools, churches and religious institutions, etc.

At the time the property was acquired by plaintiff it was partly within the city and thereafter was taken within the city limits and included in an area limited in its use to single family dwelling units, being zone R-l. Plaintiff’s application for a building permit stated that the use and occupancy to which the building was to be put was “to provide a chapel and classrooms for religious worship and study and accommodations for youth activities and other church activities.”

Plaintiff’s contention is that the zoning ordinance as applied to plaintiff to prevent its construction of a church for religious worship upon its property is invalid because, as so applied, it bears no substantial relation to the public health, safety, morals and general welfare and thus is beyond the police power of the state to enact, and further, because the application of the ordinance to petitioner results in a restriction of religious worship in the absence of any grave or imminent danger justifying such a restriction. The precise question of whether or not there may be established, as a part of a comprehensive zoning plan, strictly private residential districts from which churches are excluded and in which they are prohibited, has apparently not been decided in this state; however, it has been held that general business enterprises, apartments, tenements and like structures may be excluded and prohibited in private residential districts.