(dissenting) — This is a case which deals with the location of a parochial school and the safety of children attending that school. Because the school is operated by defendants, it has been characterized by defendants and transformed by the majority into a "freedom of religion" case under the First Amendment.
There is no issue on compulsory school attendance (Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972)), or the right to send one's children to a church-operated school (Pierce v. Society of Sisters, 268 U.S. 510. 69 L. Ed. 1070, 45 S. Ct. 571. 39 A.L.R. 468 *17(1925)). Compliance by defendants with the City of Sumner building code and zoning ordinance is not claimed somehow to violate a tenet of their faith. Compare Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963). There is no evidence or finding that the standards applied by city officials here are different from those applied to other citizens or institutions in Sumner or is there any evidence or finding of a discriminatory application of the standards against defendants. See Annot., 74 A.L.R.3d 14, § 19 (1976). No assertion is made that the ordinance or code is unreasonable. Lenci v. Seattle, 63 Wn.2d 664, 388 P.2d 926 (1964). The zoning ordinance does not wholly exclude a church school from a residential district. State ex rel. Wenatchee Congregation of Jehovah's Witnesses v. Wenatchee, 50 Wn.2d 378, 312 P.2d 195 (1957).
Before discussing the issues which are in the case, it is important to review the factual situation.
In 1976, the Sumner City Council enacted zoning ordinance 1030, now Sumner City Code, Title 11. The First Baptist Church of Sumner is located in an R-l district. In an R-l district,
Churches, nonprofit recreational clubs, public, private and parochial schools and accessory buildings and facilities may be permitted by a special property use;
Sumner City Code 11.16.180(1). Section 11.20.020 permits the continued use of nonconforming buildings and reads:
Except as otherwise provided in this chapter, the lawful use of any building existing at the time of the adoption of the ordinance codified in this title, although such use does not conform to the regulations specified by this chapter for the district in which such building is located, may be continued. Any such use may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the time of the adoption of the ordinance codified in this title; but no such use shall be extended to occupy any land outside such building.
On July 20, 1978, defendant church applied to the city planning commission for a special use permit to operate a *18school. Uncontested evidence indicated defendants were establishing a school where attendance would satisfy the compulsory education requirements of the State of Washington. On September 7, 1978, a public hearing was held before the city planning commission and the application was denied. At the request of defendants, a rehearing was set for December 7, 1978. On that date a letter was delivered to the city clerk withdrawing the request for a rehearing on the special use permit. From September 1978 until the first week of June 1979, defendants operated a school in the church building.
In 1974, the city council of Sumner adopted by reference the International Conference of Building Officials' Uniform Building Code, 1973 edition. City of Sumner Code 2.02.010. the Uniform Building Code contains a "grandfather" clause, the provisions of which are as follows:
Section 104(g) provides:
(g) Existing Occupancy. Buildings in existence at the time of the passage of this Code may have their existing use or occupancy continued, if such use or occupancy was legal at the time of the passage of this Code, provided such continued use is not dangerous to life.
Any change in the use or occupancy of any existing building or structure shall comply with the provisions of Sections 306 and 502.
Section 306(b) provides:
(b) Change in Use. Changes in the character or use of a building shall not be made except as specified in Section 502 of this Code.
Section 502 provides:
Change in Use
Sec. 502. No change shall be made in the character of occupancies or use of any building which would place the building in a different division of the same group of occupancy or in a different group of occupancies, unless such building is made to comply with the requirements of this Code for such division or group of occupancy.
The premises in question have been examined on several occasions by the building inspector of Sumner. The build*19ing is in violation of numerous sections of the Uniform Building Code. Defendants were advised of these violations both verbally and by letters of August 2, 1978 and September 8, 1978. On January 5, 1979, the building inspector posted notices in the building where classes were being held for the children attending the church school, the Washington Christian Academy. These notices stated the "building is deemed unsafe for human occupancy" and that it was "unlawful for any person to occupy, or reside in this building."
The position of the majority is that zoning regulations and building codes cannot be enforced against a litigant who claims a First Amendment right of religion unless the governmental agency can demonstrate: (1) a compelling governmental interest; (2) that the governmental interest outweighs appellants' First Amendment rights; (3) that the means chosen to effectuate that interest will accomplish it; and (4) that the end sought cannot be achieved by less restrictive measures. The sweep of the majority position is breathtaking and as nearly as I have been able to determine utterly without precedent. Certainly none is cited by the majority. The cases brought to the attention of the court by defendants or cited by the majority have not the slightest reference to the position taken here. See State Bd. v. Rudasill, 589 S.W.2d 877, 879 (Ky. 1979); Bird, Freedom From Establishment and Unneutrality in Public School Instruction and Religious School Regulation, 2 Harv. J.L. & Pub. Pol'y 125, 194 (1979).
A zoning law or ordinance is presumed constitutional and valid. Duckworth v. Bonney Lk., 91 Wn.2d 19, 586 P.2d 860 (1978). See 82 Am. Jur. 2d Zoning and Planning § 25, at 422 (1976). Those objecting to such laws or ordinances have the burden to establish that it is unreasonable (Lenci v. Seattle, 63 Wn.2d 664, 388 P.2d 926 (1964)), and that the action by government officials was arbitrary, capricious or unreasonable. State ex rel. Lyon v. Snohomish Cy. Bd. of Adj., 9 Wn. App. 446, 512 P.2d 1114 (1973). No authority is given nor have I been able to find any which reverses this *20presumption or burden of proof simply on the claim of the First Amendment.
The evidence demonstrates and the trial court found that among the numerous inadequacies of the building for use as a school are: inadequate floor space, inadequate ventilation, no approved fire alarm system, no fire extinguishers, no fire detectors, no sprinkler system, no fire-retardant walls and ceilings, no lighted exit signs, no exit signs at all, stairs that are too narrow, doors that do not open out, and stairs of inconsistent rise and run. In addition to these violations which constitute a safety hazard, there are health code violations such as inadequate restroom facilities.
The attempt by the majority to view this case as analogous to Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972) and Thomas v. Review Bd., 450 U.S. 707, 67 L. Ed. 2d 624, 101 S. Ct. 1425 (1981) is to my mind less than persuasive. In both Yoder and Thomas, the plaintiffs were left with no choice. There was no way in which the demands of the State — compulsory education to age 16 and work at a job which violated religious beliefs — could be met without a violation of a religious tenet. No such violation exists here. No bar of any kind has been raised against defendant establishing and conducting a religious school.
The majority claims "the practical effect of [the] uncompromising enforcement [of the health and safety codes] would be to close down the church-operated school." Majority opinion, at 7. That is certainly one alternative which defendant may follow if it so chooses. The other alternative is to make the required changes to come in compliance with the code, i.e., for the defendant to see to it that the children attending its school have the same fire and safety protection as other school children in the state. Before the trial court defendant made neither a suggestion nor a showing this could not be done.
It may be that the correction of these deficiencies would cost a substantial sum and would be a burden on the defendants. Rather than attempting to make the appropriate changes in the building, however, or to work with the *21city authorities to see if there is some "play in the joints", the defendants choose to assert financial inability, raise the banner of the First Amendment, and claim a violation of religious liberty. Children in a school need the protection of fire and safety codes. That they burn and hurt like anybody else and that they need to be protected does not suddenly become less just because a church is operating the school and the protections of the First Amendment are asserted. The great right of freedom of religion should not be mocked.
The interest at stake here is not the freedom of religion. The City has not impinged upon the religious practices of defendants nor singled them out for attack. It has made no attempt to tell defendants how they should or must follow their religious beliefs. It has not required, directly or indirectly, defendants to abandon their religious beliefs. It has not destroyed those beliefs or their constitutional exercise by defendants. It is simply asserting that most fundamental of rights: the protection of the health and safety of the oncoming generation of citizens.
As to the question of the applicability of the "grandfather" clauses, in both the zoning ordinance and the building code, the trial court found the use of the church basement by defendant church for the Washington Christian Academy to be a school. Defendants do not deny that it is a school. Furthermore, the Washington Christian Academy meets the definition of a parochial school. See Greater N.Y. Corp. of Seventh Day Adventists v. Miller, 54 Misc. 2d 268, 282 N.Y.S.2d 390 (1967). The claim is that the school is an integral and inseparable part of the ministry of the church to the Sumner community. Concord v. New Testament Baptist Church Heritage Christian Sch., 118 N.H. 56, 382 A.2d 377 (1978). Therefore, defendants contend that the church and thus the school is exempt under the grandfather clauses of the Uniform Building Code 104(g) (1973), and the zoning ordinance section 11.20.020.
I have little doubt but that many activities in which a *22church engages are part of the general work of the church. In this case, however, in contrast to Concord v. New Testament Baptist Church Heritage Christian Sch., supra at 58, the court need not consider the question of what activities are "connected with [the] church'". Here, under the plain language of the Sumner City Code, parochial schools are a separate category. Sumner City Code 11.16.180. There is no contention the operation of the school alone comes under the grandfather clause. Therefore, since under the Sumner ordinance a parochial school is a separate category, the fact that the activity of the church includes the school is not enough to give the school an exemption. Defendants are operating a school; that it is part of the ministry of the church is immaterial. Defendants should be required to obtain a special use permit and must meet the requirements of the building code.
The question of whether the Washington Christian Academy is a "Group C Occupancy" under the Uniform Building Code 801 (1973) need not be discussed in detail. It would not arise unless the special use permit were granted. At that time, a determination would have to be made of the applicability of the code. However, I am persuaded the analysis and findings of the trial court on this question are correct and that sufficient evidence is in the record to support the findings.
I would affirm the trial court and, thus, I dissent.