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Memo- Insitutional Zoning Memorandum To: Jim Kerrigan . From: Nancy Anderson Date: 04/06/99 Re: Institutional Zoning The following are the R-l uses that I would see in the institutional zoning district: . Churches/Synagogues Congregation Bet Shalom, Hopkins United Methodist Church, St. John the Evangelist Catholic Church, Zion Lutheran Church . Schools AI ice Smith, Eisenhower, St. John, Blake . Community Facilities Harley Hopkins, Eisenhower Community Center . . Essential Public Facilities Blake water tower The following uses are in the City but not located in the R-I zoning district. If one of the following uses locates in the R-l districts, that use would be subject to the institutional zoning . Nursing homes . Municipal service structures . ." . VESELY, MILLER & STEINER, P.A. PROFESSIONAL ASSOCIA nON A TTORNEYS AT LAW JERRE A. MILLER 400 NORWEST BANK BUILDING JOSEPH C. VESELY (1905-1989) JEREMY S. STEINER * 1011 FIRST STREET SOUTH WYNN CURTISS HOPKINS, MINNESOTA 55343 III Real Propeny l.aw Speciailst, certified 612-938-7635 by the Minnesota St&te Bar Association FAX 612-938-7670 MEMORANDUM DATE: March 3 1, 1999 TO: Steven Mielke ~Kerrigan 1S~ FROM: Jerry Steiner RE: Single Family Housing Preservation Study At the March 9 City Council work session, I was asked to provide an opinion whether the . City would have the authority to include, as one of the requirements for issuance of a Demolition Permit or Conditional Use Permit, a condition requiring the applicant to demonstrate that the activity for which the Permit is to be issued has been approved by a majority of the membership of an institutional applicant. For the reasons stated below, it is my opinion that such a condition should not be included as one of the requirements for obtaining a Demolition Permit or Conditional Use Permit for an activity such as the removal of a single family residence. l. Under Minnesota law, the formation and internal decision-making process of corporations and other legal entities is governed by state law and is not the subject of municipal regulation. This means that the internal governance or decision-making process for a business corporation, religious organization, school district or other legal entity is regulated by the organization's Bylaws and the provisions of state statutes such as the Minnesota Business Corporations Act, Minn. Stat. 302A, the Minnesota Nonprofit Corporations Act, Minn. Stat. 317 A, the Religious Associations Statute, Minn. Stat. Chapter 315, and a number of other state statutes regulating corporations and other legal entities. Minnesota cities do not establish internal governance procedures for corporations and legal entities. In regard to the specific issue of whether the City may condition issuance of a Demolition Permit or Conditional Use Permit on the approval of a majority of the members, O\vners or shareholders of a religious organization or other legal entity, it is my opinion that this would not be a permissible requirement because state law may, in fact, allow the activity for which the Permit is . being requested to be undertaken without majority approval. It is not lIDusual for a state statute and the Bylaws adopted by a religious organization, corporation or other legal entity to allow the c :\fi le\hopc ivil\memo .jss trustees. directors or offict;rs to proceed with an activity such as acquisition of real property or . demolition of a structure \vithout obtaining majority approval for that specific activity from the members, owners or shareholders. For example, Minn. Stat. 315.46 and 315.47 provide that a religious association incorporated under Minnesota Statutes Chapter 315 may create a Board of Trustees which "shall control the real property of the association". Therefore, it appears the duly- elected Trustees of a Chapter 315 religious association could proceed with demolition of a structure owned by the association without first obtaining approval from a majority of its members. If this is allmved by state law. the City of Hopkins could not impose an additional requirement of maj ority approval as a condition of issuing a Demulition Permit or Conditional Use Permit. I t must also be noted that. in the case of ml institutional property owner such as an independent school district, the decision-making process for activities such as control of rea] propeliy and demolition of structures would be vested in the schoo] board. not the eligible voters residing in the schoo] district. It clearly would not be practicable or permissible for the City to impose a majority approval requirement applicable to all institutional propcliy owners in R-l districts as such a requirement could not be imposed upon a schoo] district, for example. I A municipality's authority to rcgu]ak land use activities derives from its power to -. adopt ordinances mld regulations to protect public health, safety and welfar~. Courts have generally sustained municipal requirements and conditions for obtaining permits and approvals for land usc activities as long as those requirements and conditions protect public health, safety and welfare. However. if a condition imposed by a municipality as a requirement for obtaining an approval such . as a Conditional Use PemIit does not bear "a substmltia] relationship to the public health, safety and \ve]fme of the community". the Courts have j()Und such conditions to be arbitrary and capricious and not ]eg<tlly pennissib]e as grounds for the denial of a Conditional Use Permit or other municipal approval. C. R. Investments, Inc. v. Village of Shoreview. 304 N.W.2d 320 (Minn. 1981). Scott County Lumber v. City of Shakopee. 417 N.W.2d 721 (Minn. App. 1988). I believe there is a likelihood a Court would determine that a majority approval requirement for obtaining a Demolition PeImit or Conditional l Tsc Permit does not bear a substantial relationship to the public health, safety and \vcIfare and would, therefore. not be pt;nnissible. ----------------~--------------------~---------- In my opinion, the City does have the authority to require that an applicant for a municipal approv<tL such as a Demolition Permit. Conditional Use Pennit or Plat, demonstrate that the applicant has the legal authority to bind the property owner to all conditions attached to the municipal approval. This does not. however. mean that tht; City has the authority to establish the manner in which that authority must he obtained. It clearly does serve the public health. safety and welfare for the City to require evidence of eUl applicant's authority to bind the property owner before a conditional approval is given. The City has a kgitimate interest in ascertaining that it is dealing with the legally-authorized representative of the property owner so that all conditions attached to the approval will be binding on tht; owner/applicant. This is a proper suhject matter for municipal regulation. However. assuming the applicant demonstrates it has the legal authority of the property . owner, the mmmer in which that authority was obtained or given would not he subject to municipal c:\ lilc\hnl'civi I\mcmo.js, 2 . , . regulation. As discussed in Paragraph No. I of this Memo, internal governance procedures for religious organizations, corporations and other legal entities are not a proper subject for municipal regulation. I trust the information contained in this Memo addresses the issue raised at the March 9 work seSSIOn. Please call me if you have any questions or wish to discuss the items covered by this Memo. JSS nJ] . . c:\fi I elhopci vi I\memo.j 55 3