Tag: Zoning

CHURCH ZONING WARS – UNPOPULAR MISSIONS

When a church as part of its mission in a community undertakes ministering to the forgotten or the hated, the neighbors might object with sufficient vehemence to invoke municipal machinery. Such legal machinery may be engaged to grind finely using rules with little substantive elucidation making them prone to subjective interpretation. Zoning is a favorite weapon.

In First Lutheran Church v The City of St. Paul, Memorandum Opinion and Order on Defendant’s Motion to Dismiss (DC Minn., 2018), the church noted a homeless “day shelter” lost its location after thirty-three years and offered up its basement for the “day shelter.” The church had many outreach programs to the poor and homeless. The church, to make sure it would not have a problem operating an adult day care program sought a Determination of Similar Use from the city. The city approved the application. The program began to provide day shelter to fifty to sixty homeless persons each day. Some of the program workers, and some of the participants, became members of the church. However, the homeless persons served included some troubled persons that urinated in strange places, were on foot, sleeping outside and publicly intoxicated. The neighbors complained to the city and the city invited them to appeal the Determination of Similar Use, even though the ten day appeal window had expired three months earlier. The city accepted the appeal and the city zoning authority imposed numerous conditions on the Determination, including that the church day shelter obey the rules governing home businesses, even though the day shelter did not fit the definition. The city demanded that the day shelter deport the homeless persons from the area (“ensure the guests have left the area”). No outdoor patio was allowed. The day shelter had to give notice on a shared website of any serious incident observed. A sign had to be posted restricting after hours trespassing so the police would arrest lingering homeless persons. The day shelter could only operate 8am to 5pm. The shelter management was required to attend neighborhood policing meetings. But, the worst was the number of “guests” was limited to twenty. Comically, the number “twenty” was selected by the city because a yoga class at another church had been approved and ten participants allowed “which seemed to work.” The city sought to dismiss the case so the facts recited are only those the court could glean from pleadings and briefs. The trial court overruled the motion to dismiss holding the claims plausibly stated a claim under the federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”). The church alleged that similar restrictions were not placed on a nearby college, coffee house, and a library. Of course, the city allegedly violated its own ten day zoning appeal limitation and went out of its way to do so. Therefore, Equal Protection and First Amendment claims survived, too.

The case reported herein has survived a motion to dismiss and may be pending for a considerable period of time until final resolution. The facts recited above may change. Nevertheless, the less popular the target of ministry the more resistance may be mounted both within and without. The causes of homelessness, typically drug and alcohol addiction, are not well treated in most states. Indeed, in most states, most mental hospitals have been closed and jails are used as mental hospitals. Churches that try to step up will need competent legal counsel. Whether a church could conduct such a ministry without causing friction with the neighborhood, and how to do so, are outside the scope of this site and may require local customized program enhancements developed by psychiatrists, drug counselors, and others.