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Ellsworth v. Gercke

Supreme Court of Arizona

February 24, 1945

CARL ELLSWORTH, as Building Inspector of the City of Mesa, a Municipal Corporation, Appellant,
v.
RIGHT REVEREND DANIEL J. GERCKE, BISHOP OF THE ROMAN CATHOLIC CHURCH OF THE DIOCESE OF TUCSON, and His Sucessors, a Corporation Sole, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge.

Judgment affirmed.

Mr. Richard G. Johnson, and Mr. William C. Eliot, for Appellant.

Messrs. Snell, Strouss & Wilmer, for Appellee.

Stanford, C. J. LaPrade and Morgan, J. J., concur.

OPINION

Stanford, C. J.

This is a case where plaintiff purchased property in the City of Mesa, Arizona, for [62 Ariz. 199] the purpose of erecting a church. The district in which the property is located had been zoned as Class A residence. The Building Zone Ordinance of Mesa, in the designation of Class A Residence District, set forth at length the uses permitted by property owners, but excluded churches.

It is claimed by defendant that plaintiff knew of the existence of such ordinance at the time of purchase, but thereafter applied to the building inspector for a building permit and certificate of occupancy for the purpose of constructing a church upon the property. That application was refused on the grounds that it was not permitted by the ordinance.

Thereafter the plaintiff appealed to the Zoning Board of Adjustment of the City of Mesa, and thereafter said board refused to overrule the action of the building inspector.

Plaintiff then carried the matter to the Common Council of the City asking that the property be rezoned to permit the building of a church thereon, and that application was refused.

Thereupon plaintiff filed his complaint for a writ of mandamus in the superior court and said court issued an alternative writ of mandamus directing the building inspector, who is the defendant herein, to issue to plaintiff a building permit for the church or show cause before the court why the same should not be issued and why a peremptory writ of mandamus should not issue.

The trial court in its judgment made the alternative writ permanent, and this appeal followed.

The parties below, plaintiff and defendant, will be so styled in this court.

The property involved is on the northeast corner of McDonald and First Streets in the City of Mesa, and is in, ...


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