ZN 93-02 � ` i
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^tgust 24, 1993 ° P K , � Planning Report ZN93-2
ORDINANCE AMENDMENT- RELIGIOUS INSTITUTIONS
Proaosed Action. •
Staff recommends the following motion: Move to annrove Resolution RZ 93-10 recommending a�proval of
Ordinance 93-725 amendine the Zoning, Ordinance to�ermit reli�ious institutions as a conditional use permit
within the B-2 and B-3 zoning districts
Overview.
In 1991 a moratorium was placed on permitting churches in the B-2 and B-3 zoning district in order to give the
Commission time to review a possible ordinance change. Last October the City Council e}ctended the
moratorium until October 1993. The moratorium can be e�ctended for an additional six months
At the March Zoning and Planning meeting the Planning Commission reviewed the information provided by the
staff and asked the staff to draft an ordinance prohibiting churches in the B-2 and B-3 zoning districts. The staff
had recommended that religious institutions be regulated by a conditional use permit. After reviewing additional
information of prohibiting religious institutions in the business district, it was determined that the elimination of
^ ;ious institutions in the business district raised some constitutional issues. As a result of reviewing further
�rmation, the Commission directed staff to draft an ordinance that would permit religious institutions in the
B-2 and B-3 zoning districts with a conditional use permit. With this action a church would need to meet the
conditions outlined in the ordinance prior to receiving a permit to locate in the B-2 and B-3 districts.
The City Attorney has recommended that if the City desires to eliminate religious institutions from the business
districts, a study should be completed to support this decision.
Primarv Issues to Consider.
o Why was the moratorium proposed?
o What are the legal issues regarding prohibiting churches in business districts?
o Where will religious institutions be allowed if the attached ordinance is adopted?
o What is the basis of the staff recommendation?
Sunnorting Documents.
o Analysis of Issues
o Resolution RZ93-10
o Ordinance 93-725
'�rn � �.��
Nancy . Anderson, AICP
P�iner
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ZN93-2
Page 2
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Primary Issues to consider.
o Why was the moratorium proposed?
The moratorium was proposed by staff in order to give the Planning Commission time to review a possible
ordinance change which would restrict the location of religious institutions in the B-2 and B-3 districts. These
districts are more intense commerciaUretail in nature and there was a concern about the compatibility of religious
institutions with the other commercial uses allowed in these districts. The Zoning Ordinance currently allows
religious institutions as a permitted use in all the residential districts and the business districts.
o What are the legal issues regarding prohibiting religious institutions in the business districts?
The City Attorney has recommended that if religious institutions are prohibited in the B-2B-3 zoning districts a
study should to be completed. The study would need to justify the reasons for eliminating religious institutions in
commercial area by detailing the negative impacts they would have in such areas.
If religious institutions are excluded from the business districts without any clearly defined reasons the City could
be subject to future legal action and the subsequent legal costs from the group bringing the legal action if the City
lost the case.
There was a recent case in Hastings that is similar to the situation in Hopkins. The facts of the case are a.,�
follows:
o Cornerstone Bible Church located its church in a commercial zone (C-3) in downtown Hastings.
o Churches are not allowed in the C-3 zoning district.
o The church requested that the property be rezoned or the Zoning Ordinance amended to allow
churches in commercial areas. This request was denied by the City.
The Church challenged the City's ordinance of excluding churches from the central business district as a violation
of its rights to free speech, freedom of association, free exercise of religion, equal protection and due process.
The court decision was in favor of the church. There decision was based on the fact that: "The City has not
provided factual support for the assumptions that underlies its exclusion of churches, and the alleged secondary
effects of churches on commercial activity remain a disputed factual issue."
The court also stated the following regarding the basis for the City denying the churches from the C-3 district.
"The City presented affidavits from two city planners containing little more than conclusory statements that
excluding churches from the C-3 zone is consistent with the City's planning process and historical land-use."
o Where wiil churches be allowed if the attached ordinance is adopted?
Religious institutions will still be allowed in the residential districts and the B-1 business district as a permittea�,,,,
use. In the B-2 and B-3 district they will also still be allowed but will require approval of a conditional use
permit.
ZN93-2
Page 3
� What is the basis of the staff recommendation?
The staff is recommending that religious institutions are allowed by conditional use permit in the B-2 and B-3
zoning districts. By undertaking this action it will not be necessary for the City to expend time and funds
necessary to complete a study to justify this action. Religious uses would remain permitted in the B-2 and B-3
zoning districts with a conditional use permit and therefore there should be no basis for legal action against the
City unless an applicant is denied a conditional use permit for reasons which they feel are arbitrary and
capricious. Staff is recommending a variety of conditions that religious institutions would need to comply with
for approval of a conditional use permit. The conditions are meant to reduce potential negative impacts and
insure compatibly of religious institutions with more traditional retail uses being located side by side in these
districts.
Staff is recommending that churches are allowed in the B-1 district. The B-1 business district is a limited
business area, which is not as retail oriented as the B-2 and B-3 districts.
Alternatives
1. Recommend approval of Ordinance 93-725. By recommending approval of Ordinance 93-725 the City
Council will consider a recommendation of permitting religious institutions in the B2B-3 zoning districts
with a conditional use permit.
2. By recommending denial of the Ordinance 93-725, the City Council will consider a recommendation of
denial for allowing religious institutions as a conditional use permit in the B-2 and B-3 zoning districts.
The present ordinance would remain in force for religious institutions as a permitted use within all the
business districts if the City Council considers this alternative.
3. Continue for further information. If the Commission indicates that further information is needed, the item
should be continued. The moratorium will expire in October if the City Council does not extend the
moratorium.
4. Recommend that a study is conducted to determine the positive and/or negative affects of religious
institutions in commercial areas. If the Commission indicates that a study should be conducted, this item
should be continued.
��
CITY OF HOPKINS
Hennepin County, Minnesota
�
ORDINANCE NO 93-725
BE IT ORDAINED by the City Council of the City of Hopkins as follows:
That the Hopkins Zoning Ordinance No. 535 be and the same is hereby amended by
amending the following sections:
535.01 subd. 3. B-1 B-2 B-3
109. Religious institutions, etc X (2)XDD (2) XDD
535.03 subd. 2 DD
DD) Religious Institutions provided:
1. That there shall be no permanent or temporary living units on the property except for the
parsonage.
2. That there is adequate screening or buffering provided from abutting residential districts.
3. That there is adequate off-street loading and service entrances as detailed in section
550.09.
4. That there shall be no religious institution within 350 feet of a off sale or on sale liquor
establishment.
5. That there shall be no religious institution within 350 feet of an adult oriented business. �—
6. That the building occupying the religious institution shall meet the building occupancy
codes.
7. That a religious institution located in the B-3 district shall comply with the parking
requirements of section 550.05.
First Reading: September 7, 1993
Second Reading: September 21, 1993
Date of Publication: September 29, 1993
Date Ordinance Takes Effect: October 19, 1993
Charles D. Redepenning, Mayor
ATTEST:
James A. Genellie, City Clerk �—
CITY OF HOPKINS
�, Hennepin County, Minnesota
RESOLUTION NO: RZ93-10
RESOLUTION MAKING FINDINGS OF FACT AND RECOMMENDING
APPROVAL OF AN APPLICATION FOR AN ORDINANCE AMENDMENT
WHEREAS, an application for an Ordinance Amendment ZN 93-2
made by the City of Hopkins is recommended for approval.
WHEREAS, the procedural history of the application is as
follows:
l. That an application for an ordinance amendment ZN 93-2
was filed with the City of Hopkins on April 23 , 1993 .
2 . That the Hopkins Planning Commission reviewed such
application on June 29, 1993 , July 27, 1993 , and August
31, 1993 .
3 . That the Hopkins Planning Commission, pursuant to
published notice, held a public hearing on the
^ application on June 29, 1993, July 27, 1993 , and August
31, 1993 : all persons present at the hearing were
given an opportunity to be heard.
4. That the written comments and analysis of the City
staff and the Planning Commission were considered.
NOW THEREFORE, BE IT RESOLVED that the application for
ZN 93-2 is hereby recommended for approval based on the following
Findings of Fact:
1. That religious institutions will be permitted with
a conditional use permit in the B-2 and B-3 zoning
districts.
Adopted this 31st day of August, 1993 .
Patricia M. Reuter, Chairman
�
. �
Minnesota Suburban Newspapers City of Hopkins
(O(flcial P�bNtation)
CITY OF HOPKINS
. _ AFFIDAVIT OF PUBLICATION Hennepin County.,�„��aa
ORDINANCE NO.91-693
�� AN ORDINANCE ESTABLISHING
A MORATORIUM ON REIIGIOUS
INSTITUTIONS IN 7HE b2 AND B-3
ZONING DIS7'AICI'S
STATE OF MINNESOTA) prd�n e No sts s�o a��aaz��
SS. ��REAS,it has been determined that it is
necassary f�the health.saf anl welfare�
COUNTY OF HENNEPIN) t}�eres�dentsoftheG�tyofHo�toswdyand
crosiaer an ame,rh�,ent to ttus o�dinance regar&
ing reGgious institutiom in(�e&2 and B-3 zon-
G r e�o r v P t a c i n , being duly sworn on an oath says that he/she �� h[;�,esora sta�e smcu�es aa.ass
subd.4 allows a city to adopl an interim ac�nance
when underfaking study to revise fhe zoninq a'-
the publisher or authorized agent and employee of the publisher of the newspaper known �o���pg�gE 1T ORDAINED by
the City of Hopkins.Minnesota,
H o c k i n s S u n—S a 1 I o r m�wr;�,s�D1i���`'p�osea u�u�`a�i
, and has full knowledge of the facts which �
d all religious i,�stitutians in the a-z and -s z�-
u�g districts.
This moratorium ehall be ior the purpose ot
stated below. au�ing rne crtr�r eo.p�c�eway�a��
an ameodmeot a tbe woiog ordlaoanoe reB�B
re�gbus inatiWtimg in the&2 and g3 zoning
� �A The news a er has com lied with all of the re uirements constitutin ualification as a ualified news 8 ���andshalle:pinOctober8.�9sza�n�
P P P �l 9 q Q P P'�he enac►ment d a zoniog amendment cmcero-
ing this matter,whkhevv comes Mt.
Secocd Rea�du�B:. SeP�m�betr�,1991
as provided by Minnesota Statute 331A.02, 331A.07, and other applicable laws, as amended. Dece of r�,bu�a�«�: �m��,�
Date Ord.is Effective: October 8,1991
(B)The printed a r d i n a n c e N o. 91-6 9 3 NEISON W.B`�ER�G
ATCFST:
JAhfFS A.GENELLIE
�ty Clerk
(Sept.ll,1991)-HOP
which is attached was cut from the columns of said newspaper, and was printed and published once each week,
for �n¢ successive weeks; it was first published on we dnQ a d a y , the 11 day
'�_� of S e P t , 1g 91 , and was thereafter printed and published on every to
and including , the day of , 19 ; and printed below is
a copy of the lower case alphabet from A to Z, both inclusive, which is hereby acknowledged as being the size
and kind of type used in the composition and publication of the notice:
abcdefghi jklm nopqrs[uvw xyz
BY: .
TITLE: GQrle 1'�! I ManaEQr
Acknowledged before me on this
11 dayof Sevtembar 1 91 .
� �, ,
Not Public
RATE INFORMATION
.-•
(1) Lowest classified rate paid by commercial users $ 1.10 per line
for comparable space (Line, word, Or inch rate)
(2)Maximum rate allowed by law for the above matter $ 74.9¢ per line
(Line, word, or inch rate)
(3)Rate actually charged for the above matter $ 62¢ per line
(Line, word, or inch rate)
. , \ j Y O
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�ptember 1, 1993 ° P K � � Council Report 93-149
ORDINANCE AMENDMENT- RELIGIOUS INSTITUTIONS
Proposed Action.
Staff recommends the following motion: Move to annrove Resolution 93-93 a�provin� Ordinance 93-725 for
first readin� which amends the Zoning Ordinance to�ermit reli�ious institutions as a conditional use permit
wrtlun the B-2 and B-3 zoning districts for first readin�
Mr. Hutchison moved and Mr. Johnson seconded a motion approving Resolution RZ93-10 recommending
approval of Ordinance 93-725. The motion was approved unanimously.
Overview.
In 1991 a moratorium was placed on permitting churches in the B-2 and B-3 zoning district in order to give the
Commission time to review a possible ordinance change. Last October the City Council extended the
moratorium until October 1993. The moratorium can be extended for an additional six months
At the March Zoning and Planning meeting the Planning Commission reviewed the information provided by the
staff and asked the staff to draft an ordinance prohibiting churches in the B-2 and B-3 zoning districts. The staff
had recommended that religious institutions be regulated by a conditional use permit. After reviewing additional
"`�rmation of prohibiting religious institutions in the business district, it was deternuned that the elimination of
�ious institutions in the business district raised some constitutional issues. As a result of reviewing further
mformation, the Commission directed staff to draft an ordinance that would permit religious institutions in the
B-2 and B-3 zoning districts with a conditional use permit. With this action a church would need to meet the
conditions outlined in the ordinance prior to receiving a permit to locate in the B-2 and B-3 districts.
The City Attorney has recommended that if the City desires to eliminate religious institutions from the business
districts, a study should be completed to support this decision.
The staff reviewed the proposed amendment with the Planning Commission on August 31. Staff noted that the
proposed amendment had been reviewed by the Commission for the past several months. There was little
discussion on this item.
Primarv Issues to Consider.
o Why was the moratorium proposed?
o What are the legal issues regarding prohibiting churches in business districts?
o Where will religious institutions be allowed if the attached ordinance is adopted?
o What is the basis of the staff recommendation?
Supportin� Documents.
o Analysis of Issues
�--
o Resolution 93-93
o Ordinance 93-725
��� � � ��
Nancy S derson, AICP
Planner
CR93-149
Page 2
,�
Primary Issues to consider.
o Why was the moratorium proposed? �
The moratorium was proposed by staff in order to give the Planning Commission time to review a possible
ordinance change which would restrict the location of religious institutions in the B-2 and B-3 districts. The B-2
district encompasses the downtown area. The B-3 district encompasses other commercial areas in the City.
These districts are more intense commerciaUretail in nature and there was a concern about the compatibility of
religious institutions with the other commercial uses allowed in these districts. The Zoning Ordinance currently
allows religious institutions as a permitted use in all the residential districts and the business districts.
o What are the legal issues regarding prohibiting religious institutions in the business districts?
The City Attorney has recommended that if religious institutions are prohibited in the B-2B-3 zoning districts a
study should to be completed. The study would need to justify the reasons for eliminating religious institutions in
commercial area by detailing the negative impacts they would have in such areas.
If religious institutions are excluded from the business districts without any clearly defined reasons the City could
be subject to future legal action and the subsequent legal costs from the group bringing the legal action if the City
lost the case.
There was a recent case in Hastings that is similar to the situation in Hopkins. The facts of the case are as
follows:
o Cornerstone Bible Church located its church in a commercial zone (C-3) in downtown Hastings.
o Churches are not allowed in the C-3 zoning district.
o The church requested that the property be rezoned or the Zoning Ordinance amended to allow
churches in commercial areas. This request was denied by the City.
The Church challenged the City's ordinance of excluding churches from the central business district as a violation
of its rights to free speech, freedom of association, free exercise of religion, equal protection and due process.
The court decision was in favor of the church. There decision was based on the fact that: "The City has not
provided factual support for the assumptions that underlies its exclusion of churches, and the alleged secondary
effects of churches on commercial activity remain a disputed factual issue."
The court also stated the following regarding the basis for the City denying the churches from the C-3 district.
"The City presented affidavits from two city planners containing little more than conclusory statements that
excluding churches from the C-3 zone is consistent with the City's planning process and historical land-use."
o Where will churches be allowed if the attached ordinance is adopted?
Religious institutions will still be allowed in the residential districts and the B-1 business district as a permitted�
use. In the B-2 and B-3 district they will also still be allowed but will require approval of a conditional use
permit.
CR93-149
Page 3
--�
o What is the basis of the staff recommendation?
The staff is recommending that religious institutions are allowed by conditional use permit in the B-2 and B-3
zoning districts. By undertaking this action it will not be necessary for the City to expend time and funds
necessary to complete a study to justify this action. Religious uses would remain permitted in the B-2 and B-3
zoning districts with a conditional use permit and therefore there should be no basis for legal action against the
City unless an applicant is denied a conditional use permit for reasons which they feel are arbitrary and
capricious. Staff is recommending a variety of conditions that religious institutions would need to comply with
for approval of a conditional use permit. The conditions are meant to reduce potential negative impacts and
insure compatibly of religious institutions with more traditional retail uses being located side by side in these
districts.
Staff is recommending that churches are allowed in the B-1 district. The B-1 business district is a limited
business area, which is not as retail oriented as the B-2 and B-3 districts. The B-2 district essentially
encompasses the downtown area. The B-3 district encompasses other general retaiVcommercial areas in the
City.
Alternatives
� Approve Ordinance 93-725. By approving Ordinance 93-725, religious institutions will be permitted by
Conditional Use Permit in the B2B-3 zoning districts.
2. Deny Ordinance 93-725. By denying Ordinance 93-725, the present ordinance would remain in force for
religious institutions as a permitted use within all the business districts.
3. Continue for further information. If the City Council indicates that further information is needed, the item
should be continued. The moratorium will expire in October if the City Council does not extend the
moratorium.
4. Recommend that a study is conducted to determine the positive and/or negative affects of religious
institutions in commercial areas. If the City Council indicates that a study should be conducted, this item
should be continued.
�
CITY OF HOPKINS �
Hennepin County, Minnesota
ORDINANCE NO 93-725
BE IT ORDAINED by the City Council of the City of Hopkins as follows:
That the Hopkins Zoning Ordinance No. 535 be and the same is hereby amended by
amending the following sections:
535.01 subd. 3. B-1 B-2 � B-3
109. Religious institutions, etc X (2)XDD (2) XDD
535.03 subd. 2 DD
DD) Religious Institutions provided:
1. That there shall be no permanent or temporary living units on the property except for the
parsonage.
2. That there is adequate screening or buffering provided from abutting residential districts.
3. That there is adequate off-street loading and service entrances as detailed in section
550.09.
4. That there shall be no religious institution within 350 feet of a off sale or on sale liquor
establishment. �
5. That there shall be no religious institution within 350 feet of an adult oriented business.
6. That the building occupying the religious institution shall meet the building occupancy
codes.
7. That a religious institution located in the B-3 district shall comply with the parking
requirements of section 550.05.
First Reading: September 7, 1993
Second Reading: September 21, 1993
Date of Publication: September 29, 1993
Date Ordinance Takes Effect: October 19, 1993
Charles D. Redepenning, Mayor �
ATTEST:
�
James A. Genellie, City Clerk
"`' CITY OF HOPKINS
Hennepin County, Minnesota
RESOLUTION NO: 93-93
RESOLUTION MAKING FINDINGS OF FACT AND APPROVING
AN APPLICATION FOR AN ORDINANCE AMENDMENT
WHEREAS, an application for an Ordinance Amendment ZN 93-2 made
by the City of Hopkins is approved.
WHEREAS, the procedural history of the application is as
follows:
1. That an application for an ordinance amendment ZN 93-2 was
filed with the City of Hopkins on April 23, 1993 .
2 . That the Hopkins Planning Commission reviewed such
application on June 29, 1993 , July 27, 1993, and August
31, 1993 .
3. That the Hopkins Planning Commission, pursuant to
published notice, held a public hearing on the application
on June 29, 1993, July 27, 1993, and August 31, 1993 : all
persons present at the hearing were given an opportunity
� to be heard.
4. That the written comments and analysis of the City staff
and the Planning Commission were considered.
NOW THEREFORE, BE IT RESOLVED that the application for
ZN 93-2 is hereby approved based on the following Findings of Fact:
1. That it is appropriate to require religious
institutions to be permitted with a conditional use
permit in the B-2 and B-3 zoning districts in order
to maintain the integrity of these commercial areas,
and maintain the health, safety and welfare of the
religious institutions, adjacent properties, and the
community in general.
Adopted this 7th day of September, 1993 .
Charles D. Redepenning, Mayor
ATTEST:
�
James A. Genellie, City Clerk
..-�
CITY OF HOPKINS
Hennepin County, Minnesota
ORDINANCE NO 93-725
BE IT ORDAINED by the City Council of the City of Hopkins as follows:
That the Hopkins Zoning Ordinance No. 535 be and the same is hereby amended by
amending the following sections:
535.01 subd. 3. B-1 B-2 B-3
109. Religious institutions, etc X (2)XDD (2) XDD
535.03 subd. 2 DD
DD)Religious Institutions provided:
1. That there shall be no permanent or temporary living units on the property except for the
parsonage.
2. That there is adequate screening or buffering provided from abutting residential districts.
3. That there is adequate off-street loading and service entrances as detailed in section
^ 550.09.
4. That there shall be no religious institution within 350 feet of a off sale or on sale liquor
establishment.
5. That there shall be no religious institution within 350 feet of an adult oriented business.
6. That the building occupying the religious institution shall meet the building occupancy
codes.
7. That a religious institution located in the B-3 district shall comply with the parking
requirements of section 550.05.
First Reading: September 21, 1993
Second Reading: October 5, 1993
Date of Publication: October 13, 1993
Date Ordinance Takes Effect: November 3, 1993
Charles D. Redepenning, Mayor
�-- ATTEST:
James A. Genellie, City Clerk
\ t Y O
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August 24, 1993 ° P K � � Planning Report ZN93-2
ORDINANCE AMENDMENT- RELIGIOUS INSTITUTIONS
Proposed Action. -
Staff recommends the following motion: Move to approve Resolution RZ 93-10 recommending approval of
Ordinance 93-725 amendin� the Zoning Ordinance to permit religious institutions as a conditional use permit
within the B-2 and B-3 zonin� districts
Overview.
In 1991 a moratorium was placed on permitting churches in the B-2 and B-3 zoning district in order to give the
Commission time to review a possible ordinance change. Last October the City Council extended the
moratorium until October 1993. The moratorium can be extended for an additional six months
At the March Zoning and Planning meeting the Planning Commission reviewed the information provided by the
staff and asked the staff to draft an ordinance prohibiting churches in the B-2 and B-3 zoning districts. The staff
-�d recommended that religious institutions be regulated by a conditional use permit. After reviewing additional
�rmation of prohibiting religious institutions in the business district, it was determined that the elimination of
�ciigious institutions in the business district raised some constitutional issues. As a result of reviewing further
information, the Commission directed staff to draft an ordinance that would permit religious institutions in the
B-2 and B-3 zoning districts with a conditional use permit. With this action a church would need to meet the
conditions outlined in the ordinance prior to receiving a permit to locate in the B-2 and B-3 districts.
The City Attorney has recommended that if the City desires to eliminate religious institutions from the business
districts, a study should be completed to support this decision.
Primary Issues to Consider.
o Why was the moratorium proposed?
o What are the legal issues regarding prohibiting churches in business districts?
o Where will religious institutions be allowed if the attached ordinance is adopted?
o What is the basis of the staff recommendation?
Supqorting DoCuments.
o Analysis of Issues
o Resolution RZ93-10
o Ordinance 93-725
� �7
-�ancy . Anderson, AICP
nner
ZN93-2
--�
Page 2
Primary Issues to consider.
o Why was the moratorium proposed?
The moratorium was proposed by staff in order to give the Planning Commission time to review a possible
ordinance change which would restrict the location of religious institutions in the B-2 and B-3 districts. These
districts are more intense commerciaUretail in nature and there was a concern about the compatibility of religious
institutions with the other commercial uses allowed in these districts. The Zoning Ordinance currently al�ows
religious institutions as a permitted use in all the residential districts and the business districts.
o What are the legal issues regarding prohibiting religious institutions in the business districts?
The City Attorney has recommended that if religious institutions are prohibited in the B-2B-3 zoning districts a
study should to be completed. The study would need to justify the reasons for eliminating religious institutions in
commercial area by detailing the negative impacts they would have in such areas.
If religious institutions are excluded from the business districts without any clearly defined reasons the City could
be subject to future legal action and the subsequent legal costs from the group bringing the legal action if the City
�st the case.
��iere was a recent case in Hastings that is similar to the situation in Hopkins. The facts of the case are as
follows:
o Cornerstone Bible Church located its church in a commercial zone (C-3) in downtown Hastings.
o Churches are not allowed in the C-3 zoning district.
o The church requested that the property be rezoned or the Zoning Ordinance amended to allow
churches in commercial areas. This request was denied by the City.
The Church challenged the City's ordinance of excluding churches from the central business district as a violation
of its rights to free speech, freedom of association, free exercise of religion, equal protection and due process.
The court decision was in favor of the church. There decision was based on the fact that: "The City has not
provided factual support for the assumptions that underlies its exclusion of churches, and the alleged secondary
effects of churches on commercial activity remain a disputed factual issue."
The court also stated the following regarding the basis for the City denying the churches from the C-3 district.
"The City presented affidavits from two city planners containing little more than conclusory statements that
excluding churches from the C-3 zone is consistent with the City's planning process and historical land-use."
-� Where will churches be allowed if the attached ordinance is adopted?
�.eligious institutions will still be allowed in the residential districts and the B-1 business district as a permitted
use. In the B-2 and B-3 district they will also still be allowed but will require approval of a conditional use
permit.
ZN93-2
Page 3
�
o What is the basis of the staff recommendation?
The staff is recommending that religious institutions are allowed by conditional use permit in the B-2 and B-3
zoning districts. By undertaking this action it will not be necessary for the City to expend time and funds
necessary to complete a study to justify this action. Religious uses would remain permitted in the B-2 and B-3
zoning districts with a conditional use permit and therefore there should be no basis for legal action against the
City unless an applicant is denied a conditional use permit for reasons which they feel are arbitrary and
capricious. Staff is recommending a variety of conditions that religious institutions would need to comply with
for approval of a conditional use permit. The conditions are meant to reduce potential negative impacts and
insure compatibly of religious institutions with more traditional retail uses being located side by side in these
districts.
Staff is recommending that churches are allowed in the B-1 district. The B-1 business district is a limited
business area, which is not as retail oriented as the B-2 and B-3 districts.
Alternatives
1. Recommend approval of Ordinance 93-725. By recommending approval of Ordinance 93-725 the City
Council will consider a recommendation of permitting religious institutions in the B2B-3 zoning districts
with a conditional use permit.
�
By recommending denial of the Ordinance 93-725, the City Council will consider a recommendation of
denial for allowing religious institutions as a conditional use permit in the B-2 and B-3 zoning districts.
The present ordinance would remain in force for religious institutions as a permitted use within all the
business districts if the City Council considers this alternative.
3. Continue for further information. If the Commission indicates that further information is needed, the item
should be continued. The moratorium will expire in October if the City Council does not extend the
moratorium.
4. Recommend that a study is conducted to determine the positive and/or negative affects of religious
institutions in commercial areas. If the Commission indicates that a study should be conducted, this item
should be continued.
�\
��_
CITY OF HOPKINS
Hennepin County, Minnesota
ORDINANCE NO 93-725
BE IT ORDAINED by the City Council of the City of Hopkins as follows:
That the Hopkins Zoning Ordinance No. 535 be and the same is hereby amended by
amending the following sections:
535.01 subd. 3. B-1 B-2 B-3
109. Religious institutions, etc X (2)XDD (2) XDD
535.03 subd. 2 DD
DD) Religious Institutions provided:
1. That there shall be no permanent or temporary living units on the property except for the
parsonage.
2. That there is adequate screening or buffering provided from abutting residential districts.
3. That there is adequate off-street loading and service entrances as detailed in section
� 550.09.
4. That there shall be no religious institution within 350 feet of a off sale or on sale liquor
establishment.
5. That there shall be no religious institution within 350 feet of an adult oriented business.
6. That the building occupying the religious institution shall meet the building occupancy
codes.
7. That a religious institution located in the B-3 district shall comply with the parking
requirements of section 550.05.
First Reading: September 7, 1993
Second Reading: September 21, 1993
Date of Publication: September 29, 1993
Date Ordinance Takes Effect: October 19, 1993
Charles D. Redepenning, Mayor
� ATTEST:
James A. Genellie, City Clerk
.�..,
CITY OF HOPKINS
Hennepin County, Minnesota
RESOLUTION NO: RZ93-10
RESOLUTION MAKING FINDINGS OF FACT AND RECOMMENDING
APPROVAL OF AN APPLICATION FOR AN ORDINANCE AMENDMENT
WHEREAS, an application for an Ordinance Amendment ZN 93-2
made by the City of Hopkins is recommended for approval.
WHEREAS, the procedural history of the application is as
follows:
1. That an application for an ordinance amendment ZN 93-2
was filed with the City of Hopkins on April 23 , 1993 .
2 . That the Hopkins Planning Commission reviewed such
application on June 29, 1993 , July 27, 1993 , and August
31, 1993 .
^ 3 . That the Hopkins Planning Commission, pursuant to
published notice, held a public hearing on the
application on June 29, 1993 , July 27, 1993 , and August
31, 1993 : all persons present at the hearing were
given an opportunity to be heard.
4 . That the written comments and analysis of the City
staff and the Planning Commission were considered.
NOW THEREFORE, BE IT RESOLVED that the application for
ZN 93-2 is hereby recommended for approval based on the following
Findings of Fact:
1. That religious institutions will be permitted with
a conditional use permit in the B-2 and B-3 zoning
districts.
Adopted this 31st day of August, 1993 .
Patricia M. Reuter, Chairman
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June 21, 1993 ti � Planning Report ZN93-2
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ZONING AMENDMENT - CHURCHES
Proposed Action.
Staff recommends the following motion: Move continue the public
hearina reqardina reliaious institutions and direct staff to
draft an ordinance allowina religious institutions as a
conditional use permit in the B-2 and B-3 zoning districts
If the Planning Commission determines that religious institutions
should not be permitted in the B-2 and B-3 zoning districts the
appropriate action is the following: Move to approve Resolution
RZ93-10 recommending approval of Ordinance 93-725 prohibiting
churches in the B-2 and B-3 zoning districts. Staff is not
recommending this action without a study being completed to
support this action.
overview.
In 1991 a moratorium was placed on permitting churches in the B-2
and B-3 zoning districts. Last October the City Council extended
the moratorium until October 1993 . At the March Zoning and
Planning meeting the Commission reviewed the information provided
by the staff and asked the staff to draft an ordinance
prohibiting churches in the B-2 and B-3 zoning districts.
The staff requested the City Attorney's opinion regarding the
elimination of religious institutions in the B-2 and B-3 zoning
^ district. Mr. Miller's opinion is attached. He has recommended
that if the City wants to eliminate religious institutions from
the business districts, a study should be completed to support
this decision.
Staff is now recommending that rather than specifically prohibit
religious institutions from the B-2/B-3 zoning districts, that
they are regulated by a conditional use permit.
Primarv Issues to Consider.
o Why was the moratorium proposed?
o Where are religious institutions currently allowed in
the City?
o What is the City Attorneys regarding prohibiting
churches in the business districts?
o Where will religious institutions be allowed if the
attached ordinance is adopted?
o Why not prohibit religious institutions in the B-1
zoning district?
o What was the conclusion in the Hastings case?
o What is the basis of the staff recommendation?
Suouortinq Documents.
o Analysis of Issues
o City Attorney's opinion ,
o Resolution RZ93-10
� o Ordinance 93-725
o Hastings case
�r � �t
Nanc� S. Anderson� , AICp
Plan r
ZN93-2
Page 2
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Primary Issues to consider.
o Why was the moratorium proposed?
' The moratorium was proposed because there was interest in putting
a church in several locations in the City that were considered
prime retail areas.
o Where are reliqious institutions currently allowed in the
City?
The Zoning Ordinance currently allows religious institutions as a
permitted use in the residential districts and the business
districts.
o What is the City Attorney�s reqardinq prohibitinq churches
in the business districts?
If the Commission wishes to prohibit religious institutions
within the B-2 and B-3 zoning districts, the City Attorney has
recommended that a study be completed to support the elimination
of churches in these zoning districts. The study would need to
justify the reasons for eliminating religious institutions in
'� commercial area by detailing the negative impacts they would have
in such areas.
This opinion is also the same as the courts found in the recent
court case in Hastings. The City of Hastings did not have any
factual basis for denying a church use in the downtown area.
The staff checked with the American Planning Association
regarding if there have been any studies completed regarding the
permitting of religious use in business districts. The
information that was sent to the staff from the American Planning
Association regarding churches was dealing with excluding
churches from residential areas. It appears that including
churches in the business districts is an acceptable zoning
practice.
If the City adopts the attached ordinance without doing a study
to support the elimination of religious uses in the business
district, �it could open up the City for future legal action.
o Where will churches be allowed if the attached ordinance is
adopted?
Religious institutions will be allowed in ,.the residential
districts and the B-1 business district.
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ZN93-2
Page 3
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o What was the conclusion in the Hastinqs case?
There was a recent case in Hastings that is similar to the
situation in Hopkins. The facts of the case are as follows:
o Cornerstone Bible Church located its church in a
commercial zone (C-3) in downtown Hastings.
o Churches are not allowed in the C-3 zoning district.
o The church requested that the property be rezoned, this
rezoning was denied by the City.
The Church challenged the City's policy of excluding churches
from the central business district as violative of its rights to
free speech, freedom of association, free exercise of religion,
equal protection and due process.
The court found for the church, and stated the following: "The
City has not provided factual support for the assumptions that
underlies its exclusion of churches, and the alleged secondary
effects of churches on commercial activity remain a disputed
factual issue.
The court also stated the following regarding the basis for the
City denying the churches from the C-3 district. "The City
'~ presented affidavits from two city planners containing little
more than conclusory statements that excluding churches from the
C-3 zone is consistent with the City's planning process and
historical land-use" .
Attached is the Hastings case.
o What is the basis of the staff recommendation?
The staff is recommending that religious institutions are allowed
by conditional use permit. By undertaking this action the City
would not be required to expend time and funds necessary to
complete a study to justify this action. Religious uses would
remain permitted in the B-2 and B-3 zoning districts with a
conditional use permit and therefore there would be no basis for
legal action. If religious institutions are excluded from the
business districts without a study completed to support this
decision the City could be subject to future legal action and the
subsequent legal costs from the group bringing the legal action
if the City looses the case.
Alternatives
1. Recommend approval to continue the public hearing and direct
staff to draft an ordinance to permit religious institutions
^ as a conditional use permit.
2 . By recommending approval of the Ordinance 93-727, the City
Council will consider a recommendation of approval to
prohibit religious institutions in the B-2 and B-3 zoning
district.
ZN93-2
Page 4
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3 . Continue for further information. If the Commission
indicates that a study should be conducted to determine that
religious institutions should be eliminated from the B-2 and
B-3 zoning districts this item should be continued.
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�1��s
C I T Y O F H O P K I N S
February 12, 1993
Nancy Anderson
City of Hopkins
Dear Ms. Anderson:
I have finally been able to plow through the file you
gave me on the City of Hastings lawsuit with the Cornerstone
Bible Church. The issue in this case was whether Hastings
could exclude churches from its C-3 District which was
intended to be a zoning classification for a revitalized
central business district.
Although a complete analysis of all the issues raised
in the appeal by the church to the Eighth Circuit Court would
be quite lengthy I thinks it suffices to say at this point
the city can exclude churches from the commercial business
.-, districts if similar uses referred to in the Courts decision
sucYi as Alcoholics Anonymous, counseling centers, Masonic
lodges, other non-commercial activities are similarly
excluded. The exclusions pertaining to churches should be
supported by a study that establishes such uses displace
potential commercial uses. To support a finding in favor of
the City, there must be facts to show the City is justified
to disallow churches because such organizations displace
economic activity to a greater extent than other
non-commercial uses that may be allowed in a business zoned
area.
It is of particular importance the exclusion be based
on a thorough and logically detailed analysis or study upon
which the City can rely in excluding churches or any other
non-commercial activities wherever it intends to encourage or
promote economic vitality consonant with the use of a central
business district.
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,S�ince�rely,
/
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� i+�e��A.� Miller . �
JAM/lz jj�
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1010 First Street South,Hopkins,Minnesota 55343 612/935-8474
An Equal Opportunity Employer
^ CITY OF HOPKINS
Hennepin County, Minnesota
RESOLUTION NO: RZ93-10
RESOLUTION MAKING FINDINGS OF FACT AND RECOMMENDING
APPROVAL OF AN APPLICATION FOR AN ORDINANCE AMENDMENT
WHEREAS, an application for an Ordinance Amendment ZN 93-2
made by the City of Hopkins is recommended for approval.
WHEREAS, the procedural history of the application is as
follows:
1. That an application for an ordinance amendment ZN 93-2 was
filed with the City of Hopkins on April 23 , 1993 .
2 . That the Hopkins Planning Commission reviewed such
application on June 29, 1993 .
3 . That the Hopkins Planning Commission, pursuant to published
^ notice, held a public hearing on the application on June 29,
1993 : all persons present at the hearing were given an
opportunity to be heard.
4 . That the written comments and analysis of the City staff and
the Planning Commission were considered.
NOW THEREFORE, BE IT RESOLVED that the application for
ZN 93-2 is hereby recommended for approval based on the following
Findings of Fact:
1. The standards for the B-2 and B-3 zones which regulate
density, setbacks, etc. , promote a highly intensive
commercial development pattern. Based on these
standards churches do not constitute the highest and
best use of land which is zoned B-2 and B-3 .
2 . The nature and timing of general church activities is
in contrast to the business environment and to the
business hours of the downtown. Therefore, no business
or retail contribution or activity is generated which
is contrary to the intent of the B-2 and B-3 zones and
the goals and objectives of the Hopkins Comprehensive
Plan and the Strategic Plan for Economic Development.
� 3 . The basic purpose of the zoning ordinance is to ensure
the public health, safety and general welfare in
accordance with the official comprehensive plan of the
RESOLUTION NO: RZ93-10
Page 2
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City of Hopkins, and with adopted development goals,
policies and proposals contained therein. Toward this
end, the ordinance has divided the City of Hopkins into
zoning districts. These districts contain standards
which are intended to retain the integrity of
residential, commercial and industrial areas.
Religious institutions in the B-2 and B-3 zoning
districts are not consistent with the intent of the B-2
and B-3 zoning districts.
Adopted this 29th day of June, 1993 .
John T. Hutchison, Chairman
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CITY OF HOPKINS
Hennepin County, Minnesota
ORDINANCE NO. 93-725
ORDINANCE AMENDING THE ZONING ORDINANCE PROHIBITING
RELIGIOUS INSTITUTIONS IN THE B-2 AND B-3 ZONING DISTRICTS
BE IT ORDAINED by the City Council of the City of
Hopkins as follows:
That the Hopkins Zoning Ordinance No 535 be and the
same is hereby amended by amending the following section:
535. 01 subd. 3 . B-1 B-2 B-3
109 . Religious institutions, etc. X
First Reading: July 6, 1993
Second Reading: July 20, 1993
r._ Date of Publication: July 23, 1993
Date Ordinance Takes Effect: August 17, 1993
Charles D. Redepenning, Mayor
ATTEST:
James A. Genellie, City Clerk
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� United States Court of Appeals
^ FOR THE EIGHTH CIRCUIT
No. 90-5347
Cornerstone Bible Church; *
James Bzoskie, *
*
Appellants, *
* Appeal from the United States
�• * District Court for the
* District of Minnesota.
City of Hastings, *
*
Appellee. *
Submitted: February 13, 1991
Filed: November 1 , 1991
Before LAY, Chief Judge, McMILLIAN and ARNOLD, Circuit Judges.
�
LAY, Chief Judge.
Cornerstone Bible Church (Church) and its pastor, James
Bzoskie, appeal the district court's grant of summary judgment in
favor of the City of Hastings, Minnesota. The suit arose from
enforcement of a zoning ordinance restricting the location of the
Church from the town's central business district. Upon review we
affirm in part, reverse in part, and remand for trial.
I.
The City of Hastings (City) is the second oldest city in the
State of Minnesota. Established along the Mississippi River in
1853 , the City's business district developed parallel to the river.
Although the City has expanded and now covers more than ten square
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miles, the riverside business district has been preserved and is
a significant business area.
,
In the mid-1970s the City set out to revitalize its central �
business district. It developed a Downtown Revitalization Plan
designed to preserve and restore the central business district.
The goals of the Revitalization Plan are promoted by the City
Planning Commission and are enforced under the City's zoning
ordinance.
The City zoned its central business district commercial (C-3)
with the intent of establishing "a community-regional commerce
district . . . in recognition of the existing downtown commercial
development and of the need for its future expansions,
rehabilitation and redevelopment. " Hastings, Minn. , Zoning
Ordinance § 10. 17 subd. 1. Permitted land uses in the C-3 zone
include commercial establishments, public and semi-public
buildings, private clubs, second-floor apartments, parking lots and
" [a]ccessory uses incidental to the foregoing principal uses. " Id.
at subd. 2 . Uses allowed under special permit include gas
stations, drive-in establishments, creameries and small animal �
clinics. Section 10. 17 does not mention churches.�
�The relevant part of the zoning ordinance reads as follows:
Section 10. 17 . C-3 COMMUNITY-REGIONAL COMMERCE
SUBD. 1. Intent. The intent of this Chapter in establishing
a community-regional commerce district is in recognition of the
existing downtown commercial development and of the need for its
future expansions, rehabilitation and redevelopment.
SUBD. 2 . Uses Permitted
A. Commercial establishments including, but not limited to,
the following: �
(1) Retail establishments such as grocery, hardware, drug,
clothing and furniture stores, eating and drinking places, and
franchised auto dealers.
(2) Personal services such as laundry, barber, shoe repair
shop and photography studio.
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The Cornerstone Bible Church was organized in Hastings in
1983 . The Church first met in Pastor James Bzoskie's home. The
congregation quickly outgrew that location and the Church rented
space in the local high school. Seeking a permanent home, the
Church first purchased property on lOth Street in an industrial
zone, making the purchase contingent on City approval of a change
(3) Offices: Administrative, executive, professional, medical
and research, without merchandisinq services.
(4) Finance, insurance and real estate services.
(5) Repair services such as jewelry and radio and television
repair shops, but not auto repair.
(6) Entertainment and amusement services, such as motion
picture theatre and bowling alley.
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(7) Lodging services such as hotel and motel.
B. Public and semi-public buildings such as post office, fire
station and City Hall.
C. Private Clubs.
D. Apartments provided they are located above the first floor
level.
E. Automobile parking lots.
F. Accessory uses incidental to the foregoing principal uses
such as off-street parking and loading areas, signs, storage of
merchandise, and wholesaling, when incidental to a permitted use.
Subd. 3 . Uses by Special Permit
A. Automobile service stations and motor vehicle repair and
wash.
B. Drive-in establishments.
C. Creameries.
D. Small animal clinics, excluding establishments with outside
� runs and non-patient overnight boarding.
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in zoning to residential use, which would encompass churches. The
City denied the zoning change but the Church went ahead with the
purchase. ''"
During this time the Church leased the Caturia Building in the
central business district and began conducting church activities
there. The City notified the Church that it must discontinue using
the Caturia Building for church activities. The Church responded
by negotiating to purchase a theatre in the central business
district. The Church requested the City to amend the zoning
ordinance to allow church activities at the theatre. The City
denied the request but gave the Church an extension of time to
vacate the Caturia Building.
The Church then proposed yet another location, at 515 East 3rd
Street in an area zoned for industrial use. The City gave
preliminary approval to a change in zoning for the site but the
Church withdrew its request and requested rezoning of its lOth
Street property. The City denied the request and continued to
press the Church to leave the Caturia Building. The Church then �""
filed this lawsuit.
Although the Church has requested zoning variances or
amendments with respect to both industrial and commercial zones,
this lawsuit focuses on the City's exclusion of churches from the
central business district (C-3) zone. The City Council resolution
denying the Church's request to use the Caturia Building expresses
the City's rationale for precluding churches from the central
business district:
The nature and timing of general church activities is in
contrast to the business environment and to the business
hours of the downtown. Therefore, no business or retail
contribution or activity is qenerated which is contrary
to the intent of the C-3 zone and the goals and
objectives of the Downtown Redevelopment P1an and the
Hastings Comprehensive Plan.
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Hastings City Council Resolution No. 4-87 (Jan. 5, 1987) . The City
Council also found no need to provide space for churches in the
central business district because churches are allowed in the
residential zones that comprise forty-five percent of the City. Id.
The Church challenged the City's policy of excluding churches
from the central business district as violative of its rights to
free speech, freedom of association, free exercise of religion,
equal protection and due process. The district court granted
summary judgment for the City on all claims.
II.
A. FREE SPEECH
The Church argues that the City's exclusion of churches from
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the central business district violates the congregation's rights
to free speech. Because the City does not preclude churches
entirely, the district court held that the zoning ordinance is
properly analyzed as a time, place, and manner restriction. Citv
of Renton v. Playtime Theatres Inc. , 475 U.S. 41, 46 (1986) . The
court then held that the City's policy was a valid time, place, and
manner restriction under the test set out in Ward v. Rock Against
Racism, 491 U.S. 781 (1989) .
The City allows churches, and by implication organized
religious speech, in residential areas but not in the central
business district.2 Although the City's stated objective is to
ZAlthough exclusion of churches from the central business
district is not explicit in the text of the ordinance, the City has
unequivocally interpreted the ordinance to exclude churches from
the C-3 zone. The district court places much emphasis on the fact
that the zoning ordinance does not explicitly exclude churches from
the central business district. 740 F. Supp. at 662 . We cannot
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allow uses that generate economic activity, the City has chosen to
place determinative weight on the fact that the proposed use is a �
church. Thus, the religious content of the applicant's speech can
determine whether the City permits it to locate in the C-3 zone.3
The Supreme Court's decisions in Renton and Boos v. Barrv, 485
U.S. 312 (1988) , however, make clear that a restriction of speech
should be analyzed as content-based only if the asserted
justification for the restriction is content-based. Renton, 475
U.S. at 48; Boos, 485 U.S. at 320-21. "Government regulation of
expressive activity is content neutral so long as it is �justified
without reference to the content of the regulated speech. "' Ward,
491 U.S. at 791 (quoting Clark v. Community for Creative Non-
Violence, 468 U.S. 288, 293 (1984) ) . In Renton, the zoning
ordinance restricted the location of adult theatres -- a content-
based restriction -- but the City justified its ordinance by
asserting that it was concerned only with the secondary effects
adult theatres have on the surrounding neighborhood. 475 U.S. at
47. The Court analyzed the Renton ordinance as a time, place, and ,�
manner restriction. Id. at 46.
The City does not attempt to justify its ordinance as a valid
effort to circumscribe religious worship. The City claims to be
interested only in the secondary effects of the Church on economic
embrace such a distinction. Al1 parties agree that the City
enforces its ordinance to exclude churches from the C-3 zone.
Thus, it is inconsequential whether that exclusion is explicit or
implicit in the ordinance. To hold otherwise would allow
governments to evade first amendment scrutiny simply by drafting
their laws to restrict speech implicitly rather than explicitly.
3This view of the City's ordinance gains support from the fact
that the City has permitted several non-commercial entities to
locate in the C-3 zone, including the Masonic Lodge, Alcoholics
Anonymous, and Birthright (a pregnancy counseling center) . These
organizations do not appear to further the City'� goal of economic
vitality any more than the Church, yet only the Church has been
excluded.
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^ vitality in the central business district. Although the Church
disputes whether economic vitality is the real objective of the
ordinance, the City's assertion of a content-neutral justification
is sufficient to render the ordinance subject to time, place, and
manner analysis. Id.4
In the present case, the C-3 zoning requirements .exclude
churches altogether. Thus, we express a lingering doubt as to
whether the time, place and manner doctrine applies. However, we
construe the overall Hastings zoning ordinance, which makes
allowances for churches in residential areas, as simply restrictive
and therefore find the time, place, and manner rule applicable.
In Renton, adult theatres were not banned altogether but were not
allowed "within 1000 feet of any residential zone, single- or
multiple-family dwelling, church, park, or school. " Id. at 43.
It was on this basis the Court applied the time, place and manner
regulation.
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Time, Place and Manner.
A valid time, place, and manner restriction must (1) be
narrowly tailored to serve a significant governmental interest, and
(2) leave open ample alternative channels for communication of the
information. Ward, 491 U.S. at 791. As the district court
observed, zoning in general is a legitimate municipal tool and the
City's revit�lization plan is unquestionably a permissible
municipal objective. See Renton, 475 U.S. at 50. However, the
4See also L. Tribe, American Constitutional Law § 12-3 , at
795 n.4 (2d ed. 1988) ("' [W]hat sort of regulation it really is'
is irrelevant, as well as unintelligible. The critical inquiry is
whether the state chooses to (or must) justifv the regulation by
reference to dangers that flow from an act's communicative
content. " (citation omitted) ) . Practically speaking, it is too
difficult to ascertain the City's true purpose if in fact its
asserted justification is a pretext. United Stat,es v. O'Brien, 391
U. S. 367 , 383-84 (1968) .
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question whether the ordinance is narrowly tailored requires more
particularized scrutiny.
�
Although the City is not required to show that its ordinance
is the least-restrictive means of accomplishing its objective,
Ward, 491 U.S. at 798, the City "may not regulate expression in
such a manner that a substantial portion of the burden on speech
does not serve to advance its goals. " Id. at 799; see also Renton,
475 U.S. at 51-52 (" [W]hatever evidence the city relies upon [must
be] reasonably believed to be relevant to the problem that the city
addresses. ") . This places the burden on the City to provide some
factual support for its claim that exclusion of churches advances
its goal of revitalizing the central business district.
The City presented affidavits from two city planners
containing little more than conclusory statements that excluding
churches from the C-3 zone is consistent with the City's planning
process and historical land-use. Church App. at 128-35. The only
specific reasons given for excluding churches were that a church
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would displace potential commercial uses and increase the potential
for traffic, parking and land-use conflicts.5 Id. at 133-34. The
Church argues that both affidavits should be discounted because
the affiants had been on the City payroll and had helped develop
the planning policies they were defending.
Significantly, the City conceded that it had never conducted
any studies of the effects of churches on commercial activity, even
though several existing churches border the C-3 zone. Although the
City Council resolution stated that " [t]he nature and timing of
general church activities is in contrast to the . . . business
hours of the downtown, " Hastings City Council Resolution No. 4-87
SThe City concedes that the traffic-related issues are
asserted only "in passing" and are "not . . . the keystone of the
City's position in this matter. " City Brief at 26.
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(Jan. 5, 1987) , the City has not supported this statement. Indeed,
^� some of the permitted uses have much the same hours of operation
as the Church.6 Moreover, the Church met the City's evidence with
affidavits from owners of businesses in the C-3 zone who stated
that Cornerstone Bible Church had no negative effects on the
central business district. Church A�a. at 54, 59 .
In a summary judgment proceeding the court is to view the
facts in the light most favorable to the non-moving party. McCuen
V. Polk Countv, 893 F.2d 172, 173 (8th Cir. 1990) . The City's
affidavits are conclusory and speculative, pointing only to
potential secondary effects without the benefit of any study or
factual support. Although the Court in Renton held that a city
need not conduct new studies if it was relying on relevant studies
generated by other cities, it did not eliminate the City's
obligation to provide some type of factual support for its
alleqation of secondary effects. 475 U.S. at 51. The City has not
provided factual support for the assumptions that underlie its
^� exclusion of churches, and the alleged secondary effects of
churches on commercial activity remain a disputed factual issue.
Thus, we find sununary judgment was inappropriate.
Underinclusive Classification
The Church claims the ordinance is underinclusive because it
excludes non-commercial religious entities but allows other non-
commercial entities in the C-3 zone under the provision allowing
6The record indicates that the Church has services on Sunday
mornings and evenings, Wednesday evenings, and has bible college
on Tuesday evenings. Church App. at 44-45. It is not clear when
counseling services and other activities take place. See id. The
Veterans of Foreign Wars and the American Legion are open evenings
and Sundays. City App. at 129; Church App. at 123•.
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"private clubs. "7 These permitted organizations, including
Alcoholics Anonymous, Birthright (a pregnancy couriseling center) ,
�
the American Legion, the Veterans of Foreign Wars and the Masonic
Lodge, conceivably displace potential commercial uses just as the
Church would, yet the City permits the former in the C-3 zone.
Although the Court "frequently has upheld underinclusive
classifications on the sound theory that a legislature may deal
with one part of a problem without addressing all of it, . . .
[t]his presumption of statutory validity . . . has less force when
a classification turns on the subject matter of expression. "
Erznoznik v. City of Jacksonville, 422 U.S. 205, 215 (1975) . In
Erznoznik, the Court invalidated on first amendment grounds an
ordinance prohibiting display of films containing nudity at drive-
in theatres. The city justified its ordinance as an effort to
avoid traffic accidents caused by distracted drivers on streets
near the drive-in. Id. at 214 . The Court found this justification
insufficient in light of the wide variety of other scenes in movies
that also would distract drivers.8 Id. at 214-15.
�
On the issue of underinclusiveness there are disputed issues
of material fact. The Church and City dispute whether the Church's
activities are distinguishable in any relevant respect from
�See supra note 1. The district court found the City's
failure to define the term "private clubs" irrelevant because it
was clear that churches were "not subsumed in that definition. "
740 F. Supp. 654, 667 (D. Minn. 1990) .
BThe Court also considered an underinclusiveness argument in
Renton, 475 U. S. at 52 . The adult theatre owner argued that the
Renton ordinance restricting the location of adult theatres was
underinclusive because it did not regulate other types of adult
business that would generate the same unwanted secondary effects.
Id. The Court rejected the challenge because the theatre could not
point to any other adult business in Renton that was treated
differently than the adult theatres. Id. at 52-53 . In contrast,
the Church has identified five non-commercial entities permitted
in the C-3 zone.
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�
�
permitted non-commercial uses. Although the district court
discussed this issue to some degree in evaluating the Church's
equal protection claim, 740 F. Supp. at 668, the focus of that
analysis was somewhat misplaced. It is not necessary for us to
debate the definitions of "church" or "private club, '� nor need we
ascertain whether the permitted non-commercial uses are in any way
"religious. " Rather, the ordinance must be evaluated solely in
light of its purposes.
Because the stated objective of the ordinance is to promote
economic vitality in the C-3 zone, the ordinance must be upheld or
invalidated based on whether the Church's land-use would impede the
City�s objective of economic vitality more or less than the
permitted uses. The district court did not make any findings
concerning the secondary effects of the permitted uses and the
Church. However, the Church has established that non-commercial
entities currently exist in the C-3 zone.9 On remand the
�
factfinder should make such findings as will enable it to determine
whether exclusion of churches from the C-3 zone is justifiable on
the ground that a church displaces economic activity to a greater
extent than the non-commercial uses the City has allowed in the
zone.
B. EOUAL PROTECTION
The equal protection clause is "essentially a direction that
all persons similarly situated should be treated alike. " City of
9For that matter, it is difficult to imagine how a church
would displace commercial activity any more than a second-story
apartment, which is permitted in the C-3 zone. A church provides
services to members and sometimes may engage in merchandising or
quasi-commercial activity. It seems unlikely that any comparable
activity would be generated from residences. Although allowing
residents in the downtown area may generate demand, parishioners
on their way to and from church for meetings, activities,
counseling or services likely would also patrbnize the C-3
businesses.
�
-11-
Cleburne v. Cleburne Living Center, Inc. , 473 U.S. 432 , 439 (1985) .
The Church's equal protection argument to some degree tracks its
free speech claim. It argues that the City excludes the non- `
commercial Church from the C-3 zone but permits other similarly
situated non-commercial entities. The district court found the
Church not similarly situated to the permitted entities and
concluded that any similarities "are not significant for purposes
of the ordinance or the equal protection clause. " 740 F. Supp. at
668 .
Under the equal protection clause we must consider whether the
City has a rational basis to differentiate between the Church and
the entities it permits in the C-3 zone. Any differentiation must
be relevant to the objectives the City is attempting to achieve
through its ordinance. Cleburne, 473 U.S. at 441. In Cleburne,
the Court enjoined a city's enforcement of a zoning ordinance that
prohibited the placement of a group home for the mentally retarded
in a residential area but allowed all other types of residential
dwellings. Id. at 450. The Court's analysis focused on whether the
group home "would threaten legitimate interests of the city in a �"'
way that other permitted uses such as boarding houses and hospitals
would not. " Id. at 448.
The present case requires similar analysis, and there is no
indication in the record that the district court made this vital
inquiry. The City implies that it has no choice but to locate the
American Legion and the Veterans of Foreign Wars in the C-3 zone
because these organizations have liquor licenses and state law
prohibits liquor establishments in residential areas. However,
while adherence to state law would likely be deemed a legitimate
justification for treating similarly situated entities
differently, 10 this explanation could not possibly justify allowing
10We do not decide whether the City in fact �.s compelled under
state law to locate liquor establishments in the C-3 zone.
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.�
^ groups such as Alcoholics Anonymous in the C-3 zone. �� Alcoholics
Anonymous and the Masonic Lodge do not hold liquor licenses and
their internal by-laws prohibit them from obtaining a license, yet
theirs are permitted uses. The City offers no other justification
for its distinction between churches and other non-commercial
entities. 12
The Church has placed the City's rationale for excluding
churches at issue. The City is excluding the Church because it
will not generate economic activity, but the Church has established
a relevant similarity between itself and permitted non-commercial
entities. It now is incumbent on the City to provide the rational
basis for this apparent unequal treatment of similarly situated
entities. The City has failed to support its exclusion of the
Church with any justification beyond the conclusory statements in
the affidavits of the city planners. Church Atip at 128-35. Thus,
summary judgment was not appropriate and the district court on
� remand should determine whether the City has a rational basis for
treating the Church differently from the permitted entities.13
��The City implies that it allows non-commercial entities in
the C-3 zone if they are eligible for a liquor license. Citv Brief
at 24. If this is the City's distinction it is unavailing, for the
Church too is eligible for a liquor license.
12The City does offer the tautological argument that Birthriqht
and Alcoholics Anonymous are allowed in the C-3 zone because they
fall under the category of "professional and medical services. "
City Brief at 25. It is meaningless to argue that a land-use is
allowed under the ordinance because the ordinance allows it. For
equal protection analysis the relevant inquiry is whether allowing
one non-commercial entity but excluding another is rational in
light of the purposes of the ordinance. Thus, the issue is whether
Birthright and Alcoholics Anonymous generate economic activity more
or less than the Church.
13The Church claims the City's rationale for treating churches
differently from other non-commercial entities should be subject
to strict scrutiny. Although courts typically give broad latitude
to legislative initiatives concerning economic regulation, New
Orleans v. Duke, 427 U.S. 297, 303 (1976) (per curiam) , the Church
relies on the statement in Cleburne that a heightened standard of
�
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C. FREE EXERCISE
�
The Church argues the zoning ordinance violates its first
amendment right to free exercise of religion in two ways: the
ordinance directly regulates religious worship and also infringes
on its "hybrid rights" to free speech and religion. The Church's
claims thus follow the two remaining paths for advancing a free
exercise claim after the Court's decision in Employment Div. , Dep't
of Human Servs. v. Smith, 110 S. Ct. 1595 (1990) .
In Smith, the Court held that a neutral law of general
applicability that incidentally impinges on religious practice will
not be subject to attack under the free exercise clause. Id. at
1600. However, the Court left open the viability of free exercise
attacks on government actions that directly regulate religious
belief or religious-based conduct, id. at 1599, or that violate
the first amendment in conjunction with other constitutional
protections. Id. at 1601.
�
The ordinance has no impact on religious belief and should not
review is required "when state laws impinge on personal rights
protected by the Constitution. " 473 U.S. at 440. However, in an
analogous circumstance of racial discrimination in which plaintiffs
sought strict scrutiny the Court stated that "our cases have not
embraced the proposition that a law or other official act, without
regard to whether it reflects a racially discriminatory purpose,
is unconstitutional solelv because it has a racially
disproportionate impact. " Washington v. Davis, 426 U.S. 229, 239
(1976) . Absent evidence of purposeful discrimination based on
religious status, the rational basis standard should apply. The
disparate impact of the ordinance on the Church is insufficient to
support an inference of discriminatory purpose, see Davis, 426 U.S.
at 242 ; see also Williams v. Anderson, 562 F.2d 1081, 1087 (8th
Cir. 1977) , particularly in light of the �ity's efforts to
accommodate the Church.
-14- �
�-- be construed as directly regulating religious-based conduct. 14 The
ordinance is a general law that applies to all land-use in
Hastinqs. There is no evidence that the City has an anti-religious
purpose in enforcing the ordinance. 15 Absent evidence of the City's
intent to regulate religious worship, the ordinance is properly
viewed as a neutral law of general applicability and under Smith
summary judgment on this free exercise claim was appropriate. �b
14The cases cited by the Church are relevant factually but all
were decided prior to Smith. See Islamic Center of Mississippi
Inc. v. City of Starkville, 840 F.2d 293 (5th Cir. 1988) ; Messiah
Batitist Church v. County of Jefferson, 859 F. 2d 820 (lOth Cir.
1988) , cert. denied, 490 U.S. 1005 (1989) ; Lakewood, Ohio
Conqreaation of Jehovah�s Witnesses v. City of Lakewood, 699 F.2d
303 (6th Cir. ) , cert. denied, 464 U.S. 815 (1983) ; Grosz v. Citv
of Miami Beach, 721 F.2d 729 (llth Cir. 1983) , cert. denied, 469
U.S. 827 (1984) . In any event, the courts upheld the zoninq
ordinances in three of the four cases. In the other case the city
had permitted twenty-five Christian churches in an area but
prohibited a Muslim mosque. Islamic Center, 840 F.2d at 297. The
court accordingly found that the ordinance as enforced was
discriminatory against Muslims and violated their free exercise
'� rights. Id. at 302-03. The facts of Islamic Center go well beyond
the present case.
�SIndeed, the City has attempted to accommodate the Church by
indicating its approval of a zoning change for the Church's
property on Third Street. The City also has granted the Church a
number of extensions of time to find another location.
t6This result is consistent with a recent Second Circuit case
involving enforcement of an historic preservation ordinance to
restrict a church's right to develop its property. Rector, Wardens
& Members of Vestrv of St Bartholomew's Church v City of New
York, 914 F. 2d 348 (2d Cir. 1990j , cert. denied, ili S. Ct. 1103
(1991) . St. Bartholomew's Church owned a seven-story building in
the heart of Manhattan that was designated an historical landmark
under a city ordinance. The church wanted to tear down the
landmark and build an office tower to further its charitable and
ministerial program, but the city refused permission. The church
filed suit claiming, inter alia, that the ordinance violated its
rights under the free exercise clause.
The Second Circuit applied Smith and found the landmark
ordinance a neutral regulation of general applicability. Id. at
355. Although the ordinance "drastically restricted the Church's
ability to raise revenues" and despite the fact that approximately
^fifteen percent of all designated landmarks were churches, the
-15-
The Church also bases its free exercise challenge on the fact �
that the ordinance violates the congregation's free speech and
equal protection rights along with its free exercise rights. The
Supreme Court in Smith observed that " [t]he only decisions in which
we have held that the First Amendment bars application of a
neutral, generally applicable law to religiously motivated action
have involved not the Free Exercise Clause alone, but the Free
Exercise Clause in conjunction with other constitutional
protections, such as freedom of speech and of the press . . . . "
110 S. Ct. at 1601. The district court rejected this "hybrid
rights" claim in light of its grant of summary judgment to the City
on the Church's free speech, freedom of association, equal
protection, and due process claims. Our reversal of the summary
judgment orders breathes life back into the Church's "hybrid
rights" claim; thus, the district court should consider this claim
on remand.
D. DUE PROCESS �--
The Church contends the City's zoning ordinance is unduly
vague, leaving its interpretation to the "unbridled discretion" of
the city planner.�� The alleged flaw in the ordinance is its
failure to define terms such as "church, " "private club, " and
"economic activity, " which serve to identify permitted and excluded
court found no evidence of an intent to discriminate against
religious worship. Id. at 354-55. The Second Circuit concluded
that "no First Amendment violation has occurred absent a showing
of discriminatory motive, coercion in religious practice or the
Church's inability to carry out its religious mission in its
existing facilities. " Id. at 355.
��Before the district court the Church also claimed that the
city planner's decisions were not subject to meaningful review, but
the Church does not press this contention on appeal. Clearly the
Church has exercised its ability to appeal the city planner's
decisions to the City Council.
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�
uses. The Church relies entirely on a statement in Gravned v. Citv
of Rockford, 408 U.S. 104 (1972) , in which the Court identified
three important values offended by vague laws.
The Grayned Court stated that a vague law fails to provide
citizens reasonable notice of what the law prohibits and allows,
and thus will "trap the innocent by not providing fair warning. "
Id. at 108. The Hastings zoning ordinance is not such a trap. The
ordinance is specific in listing seven broad categories of
permitted uses and more than thirty examples. It explicitly
indicates where churches are allowed and although it does not
explicitly prohibit churches in the C-3 zone, that prohibition is
reasonably implied by the omission of churches as a permitted use.
The second concern articulated in Grayned was that a vague law
"impermissibly delegates basic policy matters to policemen, judges,
and juries for resolution on an ad hoc and subjective basis, with
^ the attendant dangers of arbitrary and discriminatory application. "
Id. at 108-09 . In the present case the City Council has made the
basic policy decisions and has essentially left only the mechanics
to the city planner. The City Council has established the zoning
policy and objectives for each zone and has enumerated a
comprehensive list of permitted uses in the C-3 zone. No
legislative body developing a zoning plan could be expected to
envision every potential land-use, and it is quite plausible that
the Council did not foresee the possibility that a church would
seek to locate in a storefront in the central business district.
The resulting gap in the ordinance has been interpreted by the city
planner in light of the overall objectives for the C-3 zone. The
City's statement of objectives, along with available review
procedures, sufficiently constrains the city planner's discretion.18
18To the extent that the Church claims that the city planner
has discriminated against religious expression, that argument is
more appropriately considered as part of the • Church's equal
protection claim. As we observed in remanding the Church's equal
-17-
The third concern of the GraYned Court was that "where a vague �
statute 'abut[s] upon sensitive areas of basic First Amendment
freedoms, "' it chills First Amendment activity by causing citizens
to "'steer far wider of the unlawful zone' . . . than if the
boundaries of the forbidden areas were clearly marked. " Id. at
109. Although first amendment freedoms are implicated here, there
is no serious risk of chilling religious activity. The ordinance
is not vague and has only a tangential effect on religion.
Having addressed all the due process concerns raised by the
Church and finding them unfounded, we affirm the district court's
grant of summary judgment in favor of the City on this claim.
SUMMARY
The district court's order of summary judgment with respect
to the Church's free speech and equal protection claims is reversed
and remanded for trial. The order of summary judgment with respect —
to the Church's free exercise claim is affirmed except for the
"hybrid rights" claim, which is reversed and remanded for further
consideration. The order of summary judgment with respect to the
protection claim, the City has some way to go in providing a
rationale for its distinction between the permitted non-commercial
uses and the Church. However, any improper discrimination
resultinq from the City's enforcement of the ordinance is not due
to a vagueness problem in the text of the ordinance. The text is
reasonably and concisely drafted and is not vague. The terms
"church, " "private club, " and "economic activity" are familiar
terms from common experience and are not unduly ambiguous. Thus,
if the ordinance is invalidated it will be because of the
assumptions the City has made about the specific land-uses at
issue, not because of inherent problems in the text of the
ordinance.
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Church's due process claim is affirmed. 19
�---
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
�.
�
19Despite a passing reference in its brief to its freedom of
association claim, Church Brief at 36 n.95, the Church has not
raised on appeal the district court's grant of summary judgment
for the City on its freedom of association claim.
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� t Y O
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August 15, 1991 .y 5 Council Report 91-177
� P K � t�
MORATORIUM - RELIGIOUS INSTITUTIONS
Proposed Action.
Staff recommends approval of the following motion: Move to
approve Resolution 91-107 approving Ordinance 91-693 for
first reading establishing a moratorium on religious uses in
the B-2 and B-3 districts.
Overview.
On July 30, 1991 the Zoning and Planning Commission
recommended to the City Council to adopt a interim ordinance
placing a moratorium on permitting religious institutions in
the B-2 and B-3 zoning districts. Currently religious
institutions are allowed as a permitted use in all the
business districts. The Commission was concerned with
religious institutions occupying buildings in the B-2 and B-
3 districts. Recently interest has been expressed by a
church to locate in the Hopkins House which is in a B-3
zone.
--�
The old Medalist Sports Club is in the process of being
rezoned to B-1 and will not be affected by this moratorium.
Religious institutions are also allowed in all residential
districts with a conditional use permit. This moratorium
will not affect any religious use wanting to locate in a
residential district.
Primary Issues to Consider.
o How long should this moratorium last?
o Why have a moratorium for religious uses in the B-2
and B-3 districts?
o What is the difference in the B-1, B-2 , and B-3
districts?
supporting Documents.
o Analysis of Issues
o Zoning Map
o Zoning Ordinance
o Resolution 91-107
o Ordinance 91-693
� � �
'"'� Nanc S. Anderso
Planner
�
CR 91-107
Page 2
Primary Issues to Consider.
o How lonq should the moratoriwn last?
Staff is recommending that the moratorium last a year or
until an ordinance is enacted. It is not intended that the
moratorium will last a year. However, six months probably
is not enough time for an ordinance change because the
Planning Commission only meets once a month.
o Why have a moratorium for reliqious uses in the B-2 and
B-3 districts?
The existing ordinance allows religious institutions in the
B-1, B-2 and B-3 zoning districts. Religious institutions
are becoming less traditional in their locations and are
moving into locations that in the past usually would not be
used for a religious use. This moratorium will give the
Planning Commission time to review the existing ordinance
and determine if religious institutions should continue to
be a permitted use in the B-2 and B-3 zoning districts. The
� outcome of the moratorium may be to leave the ordinance as
it is.
o What is the difference between the B-1, B-2 and B-3
districts?
The difference in the business districts is in the uses that
are allowed. The B-1 district is a limited business �
district, the least amount of uses are allowed in this
district. The B-2 district is only the downtown area. The
B-3 district is the general business district area which
allows most business uses.
Alternatives.
1. Approve the ordinance to place a moratorium on religious
institutions in the B-2 and B-3 zoning districts. By
approving Ordinance 91-693 religious institutions will not
be allowed in the B-2 and B-3 districts.
2 . Deny the ordinance to place a moratorium on religious
institutions in the B-2 and B-3 zoning districts. By
denying the Ordinance 91-693 , the existing ordinance will
remain the same which allows religious institutions in the
B-2 and B-3 districts.
—, 3 . Continue for further information. If the Council
indicates that further information is needed, the item
should be continued.
�
CITY OF HOPKINS
Hennepin County, Minnesota
ORDINANCE N0:91-693
AN ORDINANCE ESTABLISHING A MORATORIUM ON RELIGIOUS
INSTITUTIONS IN THE B-2 AND B-3 ZONING DISTRICTS
WHEREAS, the City of Hopkins has adopted Ordinance No.
515-570 approving a zoning ordinance.
WHEREAS, it has been determined that it is necessary
for the health, safety, and welfare of the residents of the
City of Hopkins to study and consider an amendment to this
ordinance regarding religious institutions in the B-2 and B-
3 zoning districts.
WHEREAS, Minnesota State Statues 462 . 355 subd. 4 allows
a city to adopt an interim ordinance when undertaking study
to revise the zoning ordinance by amendment.
NOW THEREFORE, BE IT ORDAINED by the City of Hopkins,
Minnesota,
Effective upon adoption of this ordinance, a moratorium
-� shall be imposed upon the approval of all religious
institutions in the B-2 and B-3 zoning districts.
This moratorium shall be for the purpose of allowing
the City of Hopkins to study and consider an amendment to
the zoning ordinance regarding religious institutions in the
B-2 and B-3 zoning districts and shall expire October 8,
1992 or upon the enactment of a zoning amendment concerning
this matter, whichever comes first.
First Reading: August 20, 1991
Second Reading: September 3, 1991
Date of Publication: September 18, 1991
Date Ordinance is Effective: October 8, 1991
Nelson W. Berg, Mayor
ATTEST:
James A. Genellie, City Clerk
^
•�-..
CITY OF HOPKINS
Hennepin County, Minnesota
RESOLUTION NO. 91-107
A RESOLUTION ESTABLISHING A MORATORIUM ON RELIGIOUS
INSTITUTIONS IN THE B-2 AND B-3 ZONING DISTRICTS.
WHEREAS, the City of Hopkins, has adopted Ordinance No.
515-570 approving a zoning ordinance, and
WHEREAS, the City has received several inquires
regarding locating religious institutions in the B-2 and B-3
districts in the City of Hopkins; and
WHEREAS, the City Council has concerns regarding the
ability for the City's existing code to adequately regulate
religious institutions in the B-2 and B-3 zoning districts
in the City of Hopkins and protect the public health, safety
and welfare;
WHEREAS, it has been determined necessary, to protect
the public health, safety and welfare, to establish a
moratorium to allow the City of Hopkins to study issues
pertaining to religious institutions in the B-2 and B-3
r zoning districts and possible amendments to the City Code to
better regulate said religious institutions.
NOW THEREFORE, BE IT RESOLVED, that a moratorium
prohibiting the use of religious institutions in the B-2 and
B-3 districts is approved. Said moratorium shall extend
until October 8, 1992 or upon the enactment of a zoning
amendment concerning this matter, whichever comes first.
BE IT FURTHER RESOLVED, City Council adopts an interim
Ordinance 91-693 conforming in all respects to the
moratorium adopted by this resolution.
Passed and adopted by the Council of the City of
Hopkins, Minnesota at a regular meeting held the 20th day of
August, 1991.
JAMES A. GENELLIE NELSON W. BERG
City Clerk Mayor
JERRE MILLER
City Attorney
�"`