The plaintiff, a non-profit religious corporation, brought mandamus action to compel a city building inspector to issue a permit for the construction of the corporation’s private religious high school upon the corporation’s land in class “A” residence zone. The city zoning ordinance prohibited the erection of buildings other than single family dwellings, public schools, or private elementary schools within class “A” residence districts. Held: No unconstitutional or otherwise illegal discrimination appeared in the zoning ordinance by reason of its exclusion of private high schools from class “A” residence zones while accepting similar public high schools.
This decision is contrary to the weight of authority on the general subject, and to cases presenting similar facts. In most instances where an ordinance has had the effect of excluding all types of schools or a particular type of school from an area, it has been held invalid for the reason that it was arbitrary and discriminatory, that it had no reasonable relation to public health, morals, safety, or general welfare, or, specifically, that it violated the due process and equal protection clauses.
Robert E. Roeder,
Constitutional Law—Equal Protection—Municipal Zoning Ordinance,
34 Neb. L. Rev. 139
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