Daily Development for Friday, July 20, 2001

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

I know that we've had a pretty heavy diet of zoning cases lately, but I couldn't resist this little pairing of cases, both from Ohio, in which courts may have bent zoning ordinances backwards in order to accommodate desirable religious institutional activities. Ed.

ZONING AND LAND USE; ANCILLARY USES: Providing temporary transitional housing to homeless women and their families in a former convent was deemed customary and incidental to the principal use of Catholic diocesan property and thus, was permissible as an "accessory use" under city zoning ordinance. Henley v. Youngstown Board of Zoning Appeals, 735 N.E.2d 433 (90 Ohio St.3d 142 (2000)).

The Ursuline Sisters of Youngstown (the "Sisters"), who had served the Youngstown area's disadvantaged population for over a century, sought to convert a portion of a former convent into transitional apartments for homeless women and their children. The Sisters owned and operated an independent nonprofit corporation called Beatitude House, which provided housing and support for homeless women. In an effort to satisfy documentation requirements necessary to receive federal grant money for the proposed project, the Sisters requested a letter from the Youngstown Board of Zoning Appeals (the "Board") demonstrating that the project would comply with applicable zoning laws. The city zoning officer initially denied the request. Beatitude House appealed to the Board, which ultimately granted the requested accessory use permit.

Henly, a landowner concerned about the proposed project's impact on the neighborhood, appealed the Board's decision to the Mahoning County Court of Common Pleas on the grounds, inter alia, that: 1) the Board erroneously based its decision, in part, on the Religious Freedom Restoration Act of 1993, Section 2000bb et seq., Title 42, U.S. Code, ("RFRA") which the United States Supreme Court declared unconstitutional approximately four months after the Board's decision; 2) the Sisters' proposed use of the convent did not meet the definition of "accessory use or building" as defined in Article I of the Youngstown zoning ordinance; and 4) even if the proposed use qualified as an "accessory use or building," it was nevertheless expressly prohibited in residential districts under Section 80 of the Youngstown zoning ordinance which prohibited the use of an accessory building as a dwelling. Ordinance 80 defined "accessory building" to include: "any building of a subordinate nature attached to or from a principal structure or use, including but not limited to sheds, garages and greenhouses."

The Common Pleas Court upheld the Board's decision that the proposed use was permissible as an "accessory use" under the general definition contained in Article I of the zoning ordinance. The Common Pleas Court did not address Henley's contention that the proposed use of the convent, even if it met the Article I definition of "accessory use or building" was expressly prohibited in residential districts under Section 80 of the Youngstown zoning ordinance.

Henley appealed the Common Pleas Court Decision to the Mahoning County Court of Appeals which, in a split decision, reversed on the grounds that the convent building was an "accessory building" and that use of the convent as a dwelling was expressly prohibited in a residential district by the zoning ordinance. The court acknowledged that the proposed social programs were accessory uses that were customarily incidental to the principal use of the property. The Court of Appeals also rejected Beatitude House's "free exercise" claim on the grounds that it had no private right to ignore generally applicable zoning laws that preclude dwellings in accessory buildings.

The Supreme Court of Ohio reversed the Court of Appeals, holding that Section 80's prohibition against the use of "accessory buildings" as dwellings within residential districts was limited to storage or workshop like buildings such as "sheds, garages and greenhouses" which are expressly listed in the ordinance. Invoking the general principal that restrictions on the use of property should be construed narrowly, the Court elected to construe the provisions contained in Section 80 so as to exclude the convent building in this case. Accordingly, the Court held that the appeals court erroneously applied Article I's broader definition of "accessory building or use" when it should have applied the more stringent definition set forth in Section 80. The Court held that the Section 80 definition was not broad enough to encompass the convent building at issue which did not have the special characteristics normally associated with storage or workshop like buildings. Accordingly, the Court held that use of the convent as housing for homeless women and their children was permissible under the Youngstown zoning ordinance.

Comment 1: Wow! Here the Ohio Supreme Court dramatically narrows the definition of "accessory buildings" to those items that are described merely as examples, even though the language of the ordinance could be applied much, much more broadly, and probably was intended to be so applied. Remember that we are talking about an ordinance concerning residential uses, in which the activity of maintaining a religious institution already is an exception to the typical use.

Comment 2: Of course, we're all rooting for the Sisters to win here (so long as we're not living next door to the homeless shelter). Clearly the religious activities carried out at this location included residential activities in this building it was a convent after all. It just seems unfair to limit the use to nonresidential activities now. But how to get there with a consistent reasoned analysis?

Comment 3: The court may have walked past another argument that the building was not an "ancillary building" because the convent was not an "ancillary use" to the Church, but rather a "coprimary" use. The housing of a religious order relates to the worship activities of a Catholic parish church, but it is not necessarily "ancillary" to that use. The sisters do not conduct worship services or perform the other activities customarily carried out by the parish priests. Most likely many of the sisters housed in the convent did teach in the parish school, but it is quite possible that, even from the start, the religious order carried out a number of other religious activities, not the least of which were prayer and meditation, that had nothing to do with worship services in the church or educational activities in the school.

In short, it is possible to say that the work of a religious order is its own "primary use," making the building a "coprimary" building. Why not?

Such a reading narrowly focuses on the unique character of traditional Catholic religious orders and avoids the problem of distorting the meaning of the zoning ordinance in other ways.

Also see: Solid Rock Ministries International v. Bd. of Zoning Appeals, 740 N.E.2d 320 (Ohio App. 12 Dist. 2000). , discussed under the heading: "Zoning and Land Use; Conditional Use Permits." (Finding that a church is more than a mere building used solely for worship, such that any building used primarily for purposes connected with the faith or the congregation or to propagate such faith can reasonably be deemed use for church purposes. Thus, when granting a conditional use permit for the "construction of a church," the zoning board of appeals manifested an intent to allow other structures on the property in additional to the church building itself, so long as they did not constitute a school building, which was expressly prohibited by the ordinance.)

ZONING AND LAND USE; CONDITIONAL USE PERMITS: By specifically and exclusively forbidding schools on property for which it granted a conditional use permit for the "construction of a church," the zoning board of appeals manifested an intent to allow other structures on the property in additional to the church building itself, so long as they did not constitute school buildings. Solid Rock Ministries International v. Bd. of Zoning Appeals, 740 N.E.2d 320 (Ohio App. 12 Dist. 2000).

In 1985, after purchasing a 60acre tract of land (the "Property") in a general industrial zoning district, Solid Rock Ministries, International, also known as Solid Rock Church (the "Appellant"), applied to the Board of Zoning Appeals of the City of Monroe (the "Appellee") for a conditional use permit to construct a church building on the Property. On December 18, 1985, the Appellee granted the Appellant a conditional use permit (the "1985 Permit") to allow "construction of a church" as authorized by the Monroe Zoning Code (the "Code"). The 1985 Permit was subject to four conditions, including the Appellant's refraining from constructing a school on the Property. Thereafter, the Appellant erected a sanctuary and built parking lots, ball fields, several billboards and a family recreation center on the Property.

In early 1998, the Appellant finalized a plan for the Darlene Bishop Home (the "Home"), a facility to house unwed pregnant teenagers on the Property and provide them with prenatal care, life skills training, spiritual education classes and daily chapel services in the Home's chapel, so that the teenagers might gain the "spiritual fortitude not to repeat past mistakes."

The Appellant inquired whether it could construct the Home under the 1985 Permit. In a memorandum dated August 7, 1998, the city's law director informed the city's zoning enforcement officer that "[t]he conditional use permit granted in 1985 [did] not 'extend' to anything other than what was applied for and approved, to wit: a church."

Thereafter, the zoning enforcement officer informed the Appellant that additional zoning would be necessary. Following unsuccessful attempts to rezone the Property, the Appellant applied for a building and zoning permit and a site review for the Home on December 10, 1998. On January 7, 1999, the zoning enforcement officer denied the Appellant's applications. The Appellant appealed the decision to the Appellee, which affirmed the zoning enforcement officer's interpretation of the Code.

The Appellant then appealed the Appellee's decision to the Court of Common Pleas, Butler County, which affirmed the Appellee's decision on September 23, 1999, finding that the Appellee's decision was not "unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence." However, on appeal, the Court of Appeals reversed the trial court's decision and remanded the matter for further proceedings because it concluded that the proposed facility was permitted under the 1985 Permit. Because the Ohio Supreme Court had not, and the Code applicable in 1985 did not, define "church," "church use," or "church purpose," the Court of Appeals reasoned, as courts outside Ohio had, that a church is more than a mere building used solely for worship, such that any building, such as the Home, used primarily for purposes connected with the faith or the congregation or to propagate such faith can reasonably be deemed use for church purposes, particularly where the building (and uses thereof) serves as an integral part of a particular church's missionary purposes.

Comment: Compare the far more restrictive reading to a similar problem made by the Massachussetts Court of Appeals in APT Asset Management, Inc. v. Board of Appeals of Melrose, 735 N.E. 2d 872 (Mass. App. 2000, discussed under the heading: "Zoning and Land Use; Use Restrictions; Classifications; Multifamily." (Conversion of an apartment building into an assisted living facility not permitted as a matter of right under zoning ordinance authorizing multifamily dwellings and apartment houses.) This case, of course, did not involve church activities, but focused on the different character of the challenged activities as compared to the "core" use contemplated by the ordinance. A similar argument might be made in the case of church activities, were a court so inclined.

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