The URL can be used to link to this page

Home My WebLink About[05] Ordinance InterpretationMEETING DATE: AGENDA ITEM: SUBMITTED BY: STAFF RECOMMENDATION: Planning Commission Agenda Item 5 April 7, 2014 Ordinance Interpretation B2 Zoning — Church Use 414 — 8t' Ave SE Administration PREVIOUS PLANNING COMMISSION ACTION: BACKGROUND INFORMATION: The City has received a request as to whether a church is a permitted use in the B2 Zoning District as it is not specifically listed. The meeting material includes an email from the City Attorney giving the Planning Commission direction. Included also is a copy of the property. ATTACHMENTS: Request for Council Action Narrative Request City Attorney Correspondence Illustration of Property REQUESTED PLANNING COMMISSION ACTION: Determine whether or not a Church use is permitted in the B2 Zoning District or if a special use permit would be required. THIS PAGE INTENTIONALLY LEFT BLANK �^�ma 3=-,AFZkC-r%4" 45C>q=�B-7 IF=A�->C'<:B�MC)»��m�� &pd|7,28|4 City of St. Joseph Planning Commission St. Joseph, MN56374 Re: Requesifir Determihatiott thal6hnrch Use iswPermittei'l Use per Zon//ig 04z6nm//ce JrmnerIy/4J48"',4romueNE, St. Joseph, MN 503 74 Dear Chairperson Rieke: On behalf of Four Square Investors, LLC ("Four Square") attached please find letter request and support duoumuntadimn regarding City of St. Joseph pvuyo'ty |nom(ed at 474 »m Awe/ aeNp, St Joseph,MN50374. Four Square is negotiating m potential lease nfthis property and bui|dingwith Gateway Church, a non-denominational Christian congregation ("Church"). Facts Gateway Church pm:scwUy leases space for their m[Docs and ohuroh murvioum at 106 Second Avenue NW, 0L Joseph, MN 56374. Due to long tormm concerns with their present hui|ding,amd modest Amn4h of their congregation, Gateway Chu/Ch has been searching for several mumxihn to find usuitable hi|dinghm relocate towithin the City of St, Joseph, After searching the market and analyzing various op<imza, Pastor 8muoo Temmem and other church |oudem have determined ths available Four Square property is their best alternative for relocation. Tmtbniend, Gateway has entered into diaouswionm to lease said property Qrmm Fowr Square. If the cbupob is nhlc to reach omitmhKo lease terms with Four Square, their intent is to immediately nomndoU and place t1ne hvi|dim8 back in service uo their chmnoh office and worship gathering space. FmurSquamo purchased the property several years ago with plans ho nu'dovo|opumd/m, lease the building. Doe to the changing economic climate since purchased, all plans have becu unsuccessful, despite Four Square offering the property for ao|e or lease at x price that is mohmCno(iuUky below City nfSt. Joseph estimated market value for tax purposes. The cbmmcb is the first buninemo or organization going x* far u» negotiating /nulti-year lcnoo. UnGzdunate|y, during dmc diligence, it was dc{eoniowd and confirmed with City of St. Joseph administration that the property as presently zoned (13-2 HIGHWAY 75 BUSINESS DISTRICT) does not specifically allow ChUrClICS Or houses of worship as a permitted Lise,, Regues The porpwmoor this letter and related information ie1m formally request the Planning Commission consider (lie church is a permitted use. Specifically, it is understood that the churches intended I|Pupc use of this identified property is not presently clearly defined noo Permitted Use per the City of St. Joseph effective zoning ordinance and propeily owner representative and the ohurch leadership are here before you seeking o determination by the City of 5t. Joseph Planning Commission that the ubmnohex intended use in of ''... the ^o///v u0mwo/e, ma «w,iminm/ /w~ the applicable City 0mdiuomme Subdivision (Ordinance 52]2, Subdivision 21), vvhiob states a permitted use within this ordinance inCUudcs ~Other use determined by the P|mmmlog Commission to boof the *amouharoctermn contained in this Bubdh/imiwu". In this instance, we are requesting the Planning Commission make the determination Church use ohuouon:,iatius are ninniKxr to other permitted ma:m, such as u "Movie and Performing Arts Theaters". In both instances, the building is nnioima||y used other periodically during the vvcek` when the church members Would gather for services or other typical church use. If the p|mnuiug Commission determines Gateway church oyu is authorized at this |ouu]imn under this pcnn|Ncd use provision of the Ordinance, Four 3qmnrc and the church cxpsd to Dwiol) negotiations ufu lease mf the property imthe church for their exclusive use omo house ofworship and related Church omom . As such, the oburuk would immediately begin improvement to the building and grounds tuaccommodate their needs. On behalf mfproperty mvvnur Four Square Investors, LLC, and Pastor Bruce Toumeo of Gateway Church, | appreciate the opportunity tocome before You with this request aothat, if affirmed, we may work to finish the lease mssoon as possible. I can be reached at (320 257-3756 with any questions, or clarification oil this request. Very truly Yours, GiramitoCity Real Vlntmte,lLLC Mark A i01 I Xo,� 2 � 11u�� Judy Weyrens From: Susan Kadlec <Susan.Kadlec @jkalawfirm.com> Sent: Monday, March 17, 2014 3:45 PM To: Judy Weyrens Cc: Brenda Wolbeck Subject: RE: zoning question Hi Judy Unfortunately not a straightforward issue. The Religious Land Use and Institutionalized Persons Act (RLUIPA), is the federal act which protects religious institutions from unduly burdensome or discriminatory land use regulations. It is a federal law, which means that it is subject to interpretation by the various Circuit Courts until the U.S Supreme Court takes some action to bring the circuits into alignment. Minnesota is in the 8th Circuit. There are no 81h Circuit opinions that have addressed the RLUIPA, so my opinion here is based on review of the few circuit courts that have addressed the act. The Act has four prongs to it regarding land use and churches: (1) Substantial burden: A regulation violates RLUIPA if it imposes a substantial burden on religious exercise and the municipality is unable to show that it used the least restrictive means to further a compelling governmental interest. (2) Equal terms: religious institutions must be treated at least as well as non - religious assemblies and institutions under the regulation. (3) Discrimination: no government shall impose a land use regulation that discriminates against any assembly or institution on the basis of religion. (4) Unreasonably Limits: no government shall impose a land use regulation that unreasonably limits religious assemblies, institutions or structures within a jurisdiction. The City currently allows churches as a permitted use in the EE and R -3 zone and by special use in the A, R -1, R -2 and R- 4 zones. Churches are not expressly allowed in any of the commercial or industrial zones, however lodges are allowed in the B -1 by special use, and theaters, bowling alleys, lodges and clubs are allowed in the B -2 and B -3 Zone by special use. B -2 also allows "movies and performing art theaters" as a permitted use. The zoning code does not discriminate among religious institutions, and it does not (on its face) unreasonably limit religious assemblies within the City. It is also not likely that a church would be able to show that the St. Joe zoning code imposes a substantial burden by excluding churches from a few zones, and requiring them to obtain a special use permit in other zones. Petra Presbyterian Church v. Village of Northbrook, 489 F. 3d 846 (7th Cir. 2007) (Court not convinced that excluding churches from industrial zone was least restrictive means to serve a substantial government interest, but found no substantial burden because church presented no evidence that was unable to build elsewhere in village). That leaves a question of whether the current zoning violates the equal terms provision. Equal terms may be violated regardless of whether or not the discrimination imposes a substantial burden on religious uses." Digrugilliers v. Consol. City of Indianapolis, 506 F.3d 612, 616 (7th Cir.2007). The 3 d Circuit examines the regulatory purpose of the ordinance and then looks to see if secular assemblies comparable to the religious assembly are treated the same under the ordinance. Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253 (3d Cir. 2007). The 11th Circuit finds that a zoning ordinance that permits any assembly to locate in a district must permit a church to locate there as well. Midrash v. Sephardi, Inc. v. Town of Surfside, 366 F. 3d 1214 (11th Cir. 2004). ) The 7th circuit examined both the 3rd and the 11th circuit tests before coming to its own conclusion. In determining whether a claim exists under the equal terms provision, the 7th Circuit courts look to the zoning criteria rather than the purpose behind the land use regulation. River of Life Kingdom Ministries v. Village of Hazel Crest, III., 611 F.3d 367, 371 (7th Cir.2010). (Village banning noncommercial land uses in commercial district because of proximity of train station did not violation equal terms even though it allowed commercial type assembly uses). This test takes into consideration whether the commercial district is a pure commercial district, or whether it allows assemblies of a non - commercial nature. It is clear that if a district allows some secular assemblies in its commercial district, which otherwise have similar impacts to a church, then the decision not to allow a church in that district may violate equal terms under RLUIPA. Although I cannot say for certain how the 8th Circuit will come down on this issue, the 711 Circuit test appears to be the most reasoned, protecting churches from discrimination without granting them the unlimited power to override municipal zoning. So, where does that leave the St. Joe B -2 Zone? Under the 11th Circuit test, a church would have to be allowed, at least by special use. The B -2 district allows secular assemblies - movie and performing art theaters by permitted use, and theaters (which are not movie or performing arts theaters ? ? ?) , bowling alleys, lodges and clubs by special use. Under the 3rd Circuit test, the court would examine the purpose of the B -2 District and then look to see if secular assemblies are treated the same as religious assemblies. Since the purpose is to establish a mixed use district, and the zoning allows secular places of assembly, the City would be hard pressed to deny a church in the district. Under the 7th Circuit test, because the City allows non - commercial secular places of assembly (lodges and clubs), the City would again be hard pressed to deny based upon the non - commercial nature of the church. The 7th Circuit test would suggest that the church be considered under the special use because that is where the ordinance allows non - commercial secular assembly uses. I do not believe you have to amend the ordinance in order to comply with the RLUIPA. The ordinance does have catchalls in both the permitted and special use criteria which would allow the City to consider whether the church use is similar to the other enumerated uses. I would suggest that the planning commission first consider whether the church can fall under the permitted use catchall, and if not, then have the church apply for a special use under that catchall. The planning commission should determine whether the impacts of the proposed church are similar to the allowed secular uses. Because churches can actually be a combination of assembly for prayer, educational services, etc, the planning commission should ask specifically what they intend to do at the church to ensure consistency with the allowed or special uses. I know you didn't expect this long an answer. Let me know if you have any questions. Susan M. Kadlec Jovanovich, Kadlec & Athmann, PLLP 1010 W. St. Germain, Suite 420 St. Cloud, MN 56301 Susan.Kadlec @jkalawfirm.com 320 230 -0203 * * * * * * * * * * * * * * * ** *Internet E -Mail Confidentiality Statement * * * * * * * * * * * * * * * * * * * * * ** Information contained in this e-mail transmission is intended only for the use of the addressee(s) named above and is privileged and confidential. If you not the addressee, or the person responsible for delivering it to the addressee, you are hereby notified that any reading or dissemination, distribution or copying of this communication or any of its contents is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the message and immediately delete the original message and any copy of it. Thank you. IF THIS E -MAIL MESSAGE CONTAINS ATTACHED FILES AND DOCUMENTS, PLEASE NOTE THE FOLLOWING INFORMATION: These files and documents are legal documents that have been prepared by Jovanovich, Kadlec & Athmann, PLLP. as drafts or final executable versions of the documents. These files and documents should only be printed for further review or execution as instructed. Any alteration, modification, addition, deletion or any other changes to these 2 COUNTY Of S I i A RN I 84.53360.0006mmi6samodL. L 3 M- 84. 360.1)003\ P-4 53797.03 94.53797. G-1-ro; RDONR E,;jjfTATjE�- 2 E))l JT JT THIS PAGE INTENTIONALLY LEFT BLANK