2011.12.08 Council Special Meeting and Work Session PacketOfficial City copy
Permanent File; do not destroy
CRYSTAL CITY COUNCIL
SPECIAL MEETING AND WORK SESSION AGENDA
Thursday, December 8, 2011
7:00 P.M.
Council Chambers
Pursuant to due call and notice given in the manner prescribed by Section 3.01 of the
City Charter, the special meeting and work session of the Crystal City Council was held
at , f _ p.m. on Thursday, December 8, 2011 in Council Chambers located at 4141
Douglas Drive, Crystal, Minnesota.
I. Attendance
Council members
Staff.
✓Moore✓
Norris
Selton
Peters
✓ Anderson
Banick
Bowman V Norton
�i Budziszewski✓ Serres
Deshler
Hoffmann
II. Agenda
The purpose of the special meeting:
• Conduct a hearing to consider a rental licensing requirement for 5600 34tn
Avenue North
The purpose of the work session is to discuss:
6 Miscellaneous
III. Adjournment The Work Session adjourned atJ p.m.
GACity Clerk\CoundMork sesslons\2011\wsagenda 12.08.11.doc
C
Memorandum
DATE: November 30, 2011
TO: Mayor and City Council
FROM: Anne Norris, City Manager
Mike Norton, City Attorney
SUBJECT: Pre -hearing Memorandum:Salvation Army Appeal of City Manager's
Decision: property located at 5600 - 34th Avenue North, is subject to Crystal City Code
§ 425.17 Rental Licensing Requirements.
BACKGROUND:
Earlier this year, staff notified the owners of the property at 5600 - 34th Avenue North, a
single family residential dwelling owned by the Salvation Army (the "Property") , that a
rental license and inspection was required for the Property. The Salvation Army
responded that it is exempt from this requirement because the occupants are not typical
tenants, but ministers acting on behalf of the Salvation Army and appealed staff's
determination to the City Manager, who upheld staff"s determination that the Salvation
Army was required to apply for and receive a rental dwelling license for the Property.
The Salvation Army has appealed the City Manager's interpretation of the provisions of
Crystal City Code Chapter 425, and is requesting that the Council hear the facts and
grant the appeal.
The basic facts are:
- The Property is a single family residential property owned by the Salvation
Army located at 5600 - 34th Avenue North;
The Property is a non -homestead property according to Hennepin County tax
records;
The Salvation Army has directed the occupants of the Property, ordained
ministers of the Salvation Army, to reside in the Property rent-free, and has
provided the occupants with furniture, fixtures and equipment for their use;
Crystal City Code § 425.07 Subd. 1 p) defines a rental dwelling as any
apartment or general housing unit let for occupancy, or any apartment or
general housing unit occupied by someone other than the owner of record
regardless of familial relationship or whether rent or other compensation is
paid to the owner, -
Crystal City Code § 425.07 Subd. 1 g) defines a general housing unit as a
dwelling unit other than an apartment, including but not limited to those within
395286v1 MTN CR225-371
a townhouse, condominium, double bungalow, single-family, two-family or
three-family building, -
Crystal City Code § 425.07 Subd. 1 g) defines a dwelling unit as a (i) a
single-family dwelling or (ii) a discrete portion of a dwelling designed for
occupancy by one family,
- Crystal City Code § 425.07 Subd. 1 e) defines a dwelling as a building or a
portion of a building designed for residential occupancy. the term includes
single-family, two-family, three-family and apartment dwellings but does not
include hotels, motels, nursing homes and boarding houses, -
Staff and the City Manager determined that the Property as used by the
Salvation Army met the definition of Crystal City Code § 425.07 Subd. 1 p)
which defines a rental dwelling as any apartment or general housing unit
occupied by someone other than the owner of record regardless of familial
relationship or whether rent or other compensation is paid to the owner,
because the ministers are occupying the Property, owned by the Salavation
Army as owner of record, as their residence;
Crystal City Code § 425.17 of the Crystal City Code requires all rental
dwellings to obtain a license;
- Crystal has required rental licenses for other properties in Crystal used as
church rectories at 3447 Louisiana Avenue North and 3101 Virginia Avenue
North;
- A rental license application was made for the Property by the Salvation Army
and an inspection was conducted on August 24, 2011;
- On September 6, 2011, the Crystal City Council issued a conditional rental
license for the Property, subject to completion of orders from the August 24,
2011, inspection;
- By letters dated August 22, and October 13, 2011, attorneys for the Salvation
Army disputed that the Property is subject to Crystal City Code § 425.17,
thereby appealing the decision of the City Manager that the Salvation Army is
subject to Crystal City Code § 425.17;
Attached as part of the record are:
Administrative notice dated July 28, 2011, to the Salvation Army regarding
rental license requirement;
Letter dated August 22, 2011, from Moore, Costello & Hart regarding rental
licensing requirement for 5600 -34th Avenue North;
September 27, 2011, letter from City Attorney responding to August 22 letter
from Moore, Costello & Hart addressing legal issues;
October 13, 2011, letter from Moore, Costello & Hart; and
November 14, 2011, letter to Moore, Costello & Hart from City Manager
Norris.
It is anticipated that counsel for the Salvation Army will be submitting additional
materials to the Council to support the appeal.
395286v 1 MTN CR225-371
The issues for the Council to consider in whether to grant or deny the appeal are:
1. Is the Salvation Army's use of the Property a rental dwelling within the
meaning of Crystal City Code § 425.07 Subd. 1 p), because the Property is a general
housing unit occupied by someone other than the owner of record regardless of familial
relationship or whether rent or other compensation is paid to the owner?
2. If the Council answers question 1 in the affirmative, the Council should further
consider whether requiring the Salvation Army to comply with the provisions of Crystal
City Code § 425.17 regarding rental licensing registration will result in an "undue
burden" on the Salvation Army's exercise of its religious freedom and religious
expression rights?
RECOMMENDED COURSE O1= ACTION:
After the Council holds the hearing on the Salvation Army's appeal, the Council should:
consider the record, any testimony from the hearing, additional documents submitted at
the hearing, if any, and preliminarily determine whether the Council will grant or deny
the appeal. The Council should then direct staff and the City Attorney to prepare a
record of the appeal hearing and draft findings supporting the Council's decision for the
Council's consideration at its December 20, 2011 meeting.
395286vl MTN CR225-371
4141 Douglas Drive North • Crystal, Minnesota 55422-1696
CITY of Tel: (763) 53 1 -1000 • Fax: (763) 531-1 188 • www.ei.crystal.mn.us
KYSTAL
COPY
July 28, 2011
The Salvation Army
2445 Prior Ave
Roseville, MN 55113
Subject Property: 5600 34th Ave N, Crystal, Minnesota
ADMINISTRATIVE NOTICE
5600 34th Avenue North
The Crystal City Council has adopted certain municipal ordinaoiccs in en effort to maintain and improve
a healthy and safe community and the overall quality of life in the city. This Administrative Notice is
the first step of the city's Administrative Enforcement Program that is intended to be an effective and
informal enforcement procedure for achieving compliance with city ordinances.
The following violation(s) of city code have been found:
VIOLATION(S):
UNLICENSED RENTAL DWELLING. Any dwelling that is occupied bby someone other than the
O�vn r rnrr considered a rental dwi llii-g and is required to be iaspLcted and Zense irr
accordance with the Property Maintenance ode. This is intended to ensure that the property is in
compliance with all housing codes and is a safe and healthy dwelling for all occupants. All rental
dwellings are required to be licensed prior to occupancy (Section 425 of City Code).
CORRECTION(S) REQUIRED:
Submit the enclosed rental license application and complete the city inspection and property
maintenance compliance process. Pay double license fee of $300, as penalty for occupying the property
prior to obtaining a rental license.
COMPLIANCE DATE(S):
4:30 p.m. August 8, 2011
PAGE 1 OF 2
IF THE VIOLATION(S) ARE NOT CORRECTED BY TI4EIR RESPECTIVE COMPLIANCE
DATE(S), THEN WEEKLY CITATIONS INCLUDING FINES OF NOT LESS THAN $60.00 NOR
MORE THAN $400.00 MAY BE ISSUED AND THE PROPERTY WILL BE POSTED AS
UNLAWFUL RENTAL DWELLING UNIT.
If you have questions about this notice, please contact me at 763-531-1144 or
coriruie.elfelt@ci.crystal.nin.us.
Sincerely,
6xt,'
JV �
Corinne Elfelt
Community Development Assistant
City of Crystal
CC: Property File
Resident(s)
5600 341h Ave N
Crystal, MN 55422-2620
PAGE 2 OF 2
MOORE, COSTELLO & HART, P.L.L.P.
A Professional Limited Liability Partnership
ATTORNEYS
REPLY TO WRITER'S DIRECT DIAL NUMBER
ST. PAUL OFFICE (651) 602-2615
pplunkett a mchlaw.com
August 22, 2011
Mr. Michael Norton
Ciiy Attorney for City of Crystal
Kennedy & Graven, Chartered
470 U.S. Bank Plaza
200 South 6°i Street
Minneapolis, MN 55402
Re; Rental Licensing for 5600 34`I' Ave N, Crystal, Minnesota
Dear Mr. ?Morton:
We represent The Salvation Army, which received the attached notice from the City of
Crystal regarding the Army's property at 5600 34t" Avenue North in Crystal, MN. You will note
that the City is taking the position that the property is an unlicensed rental dwelling under
§§ 425.07 and 425.17 of the City Code.
The occupants of the dwelling are ordained ministers of The Salvation Army who reside
in the dwelling at the direction of the Army. Since the Army is both the owner and the occupant
of the property, the licensing requirements do not apply.
We request an acknowledgement by the City that the Army's properties used as
parsonages are not rental dwellings under the City Code. We also request that the $150 fee paid
by the Army on August 8 be returned to the Army.
Please contact me at your earliest convenience if you would like to discuss this matter.
Very truly yours,
MOORE, COSTELLO & HART, P.L.L.P.
By
J. Patrick Plunkett
1162736.1
56 EAST FIFTH STREET - SUITE 1400 • ST. PAUL, MN 65101-1792 • TEL. (651) 227.7683 - FAX (661) 602-2670
900 2ND AVENUE SOUTH • SUITE 1500 - MINNEAPOLIS, MN 55402-5079 • TEL. (612) 673-0148 • FAX (612) 396-8600
C H
R
FZ
7
k.
R
E D
Offices in
470 U.S. Bank Plaza
200 South Sixth Street
Minneapolis
Minneapolis, MN 55402
Saint Paul
(612) 337-9300 telephone
(612) 337-9310 fax
St. Cloud
www.kennedy-graven.com
Affirmative Action, Equal Opportunity Employer
MICHAEL T. NORTON
Attomey at Law
Direct Dial (612) 337-9242
Email: mnorton@kennedy-graven.com
September 27, 2011
Mr. J. Patrick Plunkett, Esq.
Moore Costello & Hart, PLLP
56 East Fifth Street, Suite 1400
St. Paul, MN 55101
RE: Retal i nsing for 5600 34th Avenue North, Crystal, Minnesota
Dear rr lunkett:
I have reviewed your letter of August 22, 2011 to the effect that the City's rental dwelling
ordinance, CCO §§ 425.07 and 425.17 are not applicable to the above -referenced house owned
by the Salvation Army and occupied by its ordained ministers. I also have in mind our
subsequent phone conversations in which you elaborated on the issues raised in the letter to the
effect that the Army provides the house rent-free to its ordained ministers.
While I agree that the use by the ministers of the house is not a typical rental situation, the use of
the dwelling does come under the definition of "rental dwelling" in CCO § 425.07, Subd. 1 p):
"Rental dwelling" means any apartment or general housing unit let for occupancy, or any
apartment or general housing unit occupied by someone other than the owner of record
regardless of familial relationship or whether rent or other compensation is paid to the
owner." (Emphasis provided)
Since the ministers occupy the house rent-free at the direction of the Salvation Army as the
owner, this use is regulated by the referenced sections of the Crystal Code, in the opinion of the
City staff.
As I explained to you in one of our recent phone conversations, the City also similarly regulated
two other properties used as a rectory by the Olivet Baptist Church, 3447 Louisiana Avenue
North, and Redeemer Reform Church, 3101 Virginia Avenue North. Each religious institution
was required to apply for and receive a rental dwelling license.
In this connection, I have also conducted extensive research on the legal implications of
regulating property used by religious institutions. I conclude that the City's ordinance is applied
to all general housing units which come within the meaning of CCO §§425.07, subds. 1 g), j)
and p), including all other rectory type facilities. Therefore, the City is not discriminating against
the Salvation Army based on its status as a religious organization. Moreover, the City is not
392245v1 MTN CR205-30
September 27, 2011
Page 2
imposing an undue burden on the Salvation Army and its religious activities within my
understanding of the applicable case law authority under the Minnesota and federal constitutions.
In conclusion, it is the intent of the City to continue to enforce the ordinance, which means that
the Salvation Army will be required to make the repairs that have been ordered in order to
comply with the City's codes. The City staff will certainly agree to a reasonable period of time
for the Salvation Army to complete the enforcement items.
As we also recently discussed, the City does have an appeal mechanism of the staff
determination through the City Manager to the City Council, pursuant to CCO § 425.29. If you
intend to challenge the City's conclusions concerning the applicability of the cited sections of the
Crystal Code to the Salvation Army, then I would propose that you file your appeal with the City
Manager by October 14, 2011. Absent a pressing health or safety violation noted in the
compliance order (I am not aware of such), the notice of appeal will stay further enforcement of
the compliance order pending a final resolution of the appeal.
I am also open to further discussing the issues presented at your earliest convenience.
Very truly yours,
Michael � NdAon
MTN:bjc
cc: Anne Norris
392245v1 MTN CR205-30
MOORE, COSTELLO & HART, P.L.L.P.
A Professional Limited Liability Partnership
ATTORNEYS
REPLY TO
ST. PAUL OFFICE
October 13, 2011
Ms. Anne Norris
City Manager
4141 Douglas Drive North
Crystal, MN 55422
Re: The Salvation Army
Dear Ms. Norris:
WRITER'S DIRECT DIAL NUMBER
(651) 602-2615
pplunkett@mchlaw.com
Our office is legal counsel for The Salvation Army, an international movement
which is an evangelical part of the universal Christian Church (the "Army"). Pursuant to
§§ 425.29 and 306 of the Crystal City Code ("the Code"), the Army hereby appeals the
Administrative Notice issued by the City on July 28, 2011, and the subsequent
Compliance Order issued by the City on August 24, 2011. The basis for the appeal is that
the City's actions are unlawful or based upon an erroneous application of the Code.
The City's actions concern the Army's property located at 5600 34th Avenue
North, Crystal, Minnesota ("the Property"). The City has taken the position that the
Property is a "rental dwelling" under § 425.07 subd. 1(p) of the Code which defines a
"rental dwelling" as:
"... any apartment or general housing unit let for occupancy, or any apartment or
general housing unit occupied by someone other than the owner of record
regardless of familial relationship or whether rent or other compensation is paid to
the owner."
The City has ordered the Army to obtain a license for the Property and comply with the
standards set forth in § 425.17 of the Code.
In requiring a license for rental dwellings, the City of Crystal seeks to regulate
"landlord -tenant" relationships, which are prone to give rise to a number of potential
problems, involving absentee or opportunistic landlords, properties falling into disrepair,
and unsafe living conditions.
56 EAST FIFTH STREET • SUITE 1400 - ST. PAUL, MN 66101-1792 - TEL. (651) 227-7683 - FAX (651) 602-2670
900 2ND AVENUE SOUTH • SUITE 1600 - MINNEAPOLIS, MN 56402-5079 • TEL. (612) 673-0148 - FAX (612) 395-8600
Ms. Anne Norris
Page 2
October 13, 2011
The central or key issue to be examined is the relationship between the owner of a
property, and the persons who occupy the premises. In a "landlord -tenant" relationship,
there are two parties with differing interests. Often times, these interests conflict.
However, when a property is owned by a corporate entity, and occupied by a person
associated with the corporate owner for and on behalf of the corporate owner, the interests
of the owner and the occupant are indistinguishable and inseparable, and there is no
compelling need for government intervention.
The Army's occupation and use of the Property is not a "landlord -tenant"
relationship which gives rise to the problems or concerns covered by § 425.17 of the
Code. The persons currently residing on the Property are Majors Mark and Sue Welsh,
who are ordained ministers of the Army, and who reside on the Property at the directions
of their superiors to further the mission and activities of the Army. All of the furniture,
fixtures and equipment located at 5600 34th Avenue North (including the motor vehicle
driven by the Welshes) are owned by the Army. Because the Salvation Army is both the
owner and occupant of the Property, the licensing requirements for rental dwellings do
not apply to the Army's Property. Attached hereto is an Affidavit of Colonel Heatwole
with respect to the facts stated herein.
Section 425.29 of the Code requires appeals to be filed with the housing official
within five (5) business days after service of the applicable Notice or Order. On
August 30, 2011, Michael T. Norton, the Crystal City Attorney, and the undersigned,
agreed that the appeal process would be stayed while the matter was being reviewed by
City officials. In a letter to the undersigned dated September 27, 2011, Mr. Norton
advised me that the City intended to enforce § 425.17 of the Code against the Army.
Mr. Norton further advised me that the Army would have until October 14, 2011 to file its
appeal.
The Army reserves the right to appear and present oral arguments in support of its
position.
Very truly yours,
MOORE, COSTELLO & HART, P.L.L.P.
By
Patrick Plunkett
Enclosure
cc: Michael T. Norton
1166565./65590-202
AFFIDAVIT OF RERLIP HEATWOLE
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, Merle Heatwole, being first duly sworn, depose and state as follows:
1. I am a Salvation Army officer holding the rank of Colonel and I am the
Vice President for The Salvation Army, an Illinois Corporation, which is authorized to
conduct business in the State of Minnesota.
2. The Salvation Army is part of an international movement which is an
evangelical part of the universal Christian Church. We are a non-profit religious
charitable organization and have been recognized for all purposes, to be, a "church."
3. The property at 5600 341h Avenue North, Crystal, Minnesota (the
"Property"), is owned by The Salvation Army, and occupied by Salvation Army
ministers Majors Mark and Sue Welsh for and on behalf of The Salvation Army.
4. The Property is not rented or leased by Majors Welsh. Majors Welsh
reside at this Property at the direction of their superiors within The Salvation Army in
order that the ministry and good work of The Salvation Army may be effectuated.
5. The furniture, fixtures and equipment located at the Property, with the
exception of a few personal items, are that of The Salvation Army.
6. If I were to be called upon as a witness in any proceeding related to this
matter including in front of an administrative hearing, I can testify competently as to all
matters set forth herein.
Further Affiant sayeth not.
The Salvation Army
By: Merle Heatwole
Its: Vice President
STATE OF ILLINOIS )
) SS
COUNTY OF COOK )
On October a, 2011, before me, the undersigned, a Notary Public in and
for said state, personally appeared Merle Heatwole, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person whose name is subscribed
to the within instrument and acknowledged to me that he executed it.
Subscribed and sworn to before me
this � day of October, 2011.
Ctit I'llfl,&UP&
Notary Public
l V s County, Illinois
Acting in Cook County
My Commission Expires: o0 I
OFFICIAL SEAL
SUSANNE MASSARELLO
Notary Public • State of Illinois
My Commission Expires Mar 29, 2014
4141 Douglas Drive North • Crystal, Minnesota 55422-1696
Tel: (763) 531-1000 . Fax: (763) 531-1188 • www.ci.crystal.mn.us
November 14, 2011
Mr. J. Patrick Plunkett
Moore, Costello & Hart, PLLP
55 East Fifth Street, Suite 1400
St. Paul, MN 55101-1792
RE: 5600 — 34th Avenue North
Dear Mr. Plunkett:
Thanks for your letter of October 13 regarding your assertion that the City's
determination that the Salvation Army comply with the rental licensing requirements of
Crystal City Code Section 425 do not apply to your property at 5600 -34th Avenue North.
believe you are aware we require other properties owned by other religious institutions
to comply with Crystal's rental licensing and inspection requirements. They have found
no issues with complying with this requirement. I find no undue burden on requiring the
Salvation Army property at 5600 — 34 h Avenue North to comply with the rental licensing
provisions of Crystal City Code.
interpret your recent letter of October 13, 2011 to be seeking an appeal of my decision.
My recommendation to the Crystal City Council will be to set your request for a hearing
to hear your appeal of my recommendation at a special or regular City Council meeting,
as soon as practicable. The Crystal City Council can hear this matter on December 6,
after the regular Council meeting, or December 8 at 7:00 p.m.
Please let me know your availability for either of these dates; I can be reached at 763-
531-1140 or anne.norrisa-ci.crystal.mn.us .
Your truly,
4�1
/ is
anager
Cc: Mayor and City Council
Mike Norton, Kennedy & Graven
Council Working Agenda
December 8, 2011
I. CALL TO ORDER, ROLL CALL, AND PLEDGE OF ALLEGIANCE
Pursuant to due call and notice thereof, a Special Meeting of the Crystal City Council
was held on Thursday, December 8, 2011 at 03p.m. in the Council Chambers at
4141 Douglas Drive in Crystal Minnesota. Mayor ReNae Bowman called the meeting to
order.
ROLL CALL
Mayor Bowman asked the secretary to call the roll for elected officials. Upon roll call, the
city clerk recorded the following attendance:
Council Members
Moore
VSelton
Anderson
T\//Bowman
Budziszewski
Deshler
Hoffmann
City Staff
V Norris (City Manager)
'1 Norton (City Attorney)
/Serres (City Clerk)
II. HEARING
The Mayor announced the purpose of the meeting:
The consideration of the appeal of the Salvation Army of the determination of the City
Manager that the property located at 5600 34t" Avenue North and owned by the Salvation
Army is required to apply for and receive a rental dwelling license for the property pursuant
to Crystal City Code Chapter 425.
The Mayor called for the introduction of staff and representatives of the Salvation Army:
For the City: Anne Norris, City Manager
Mike Norton, City Attorney
For the Salvation Army:
The Mayor laid out the ground rules for the hearing:
-City staff and City Attorney will present the staff position
-Council members ask questions of staff or the City Attorney
-Salvation Army representatives may ask questions or seek
clarification of the staff or City Attorney
-Salvation Army representatives will present their position
-Council members ask questions of Salvation Army
representatives, and any further clarification from staff
Working Agenda December 8, 2011
Mayor Bowman declared the hearing closed.
Council members discuss the issues:
1. Is the Salvation Army's use of the Property a rental dwelling
within the meaning of Crystal City Code § 425.07 Subd. 1 p), because the
Property is a general housing unit occupied by someone other than the
owner of record regardless of familial relationship or whether rent or
other compensation is paid to the owner?
2. If the Council answers question 1 in the affirmative, the Council
should further consider whether requiring the Salvation Army to comply
with the provisions of Crystal City Code § 425.17 regarding rental
licensing registration will result in an "undue burden" OR "substantial
burden" on the Salvation Army's exercise of its religious freedom and
religious expression rights?
I
Council action
j Moved by Council Member and seconded by Council Member .
1. The Salvation Army's use of the Property is/is not a rental
dwelling within the meaning of Crystal City Code;
2. Requiring the Salvation Army to comply with the Crystal City
Code § 425.17 regarding rental licensing registration will/will not
result in an "undue or substantial burden" on the Salvation Army's
exercise of its First Amendment rights;
3. Direct staff and the City Attorney to prepare findings
consistent with grant or denial, for consideration and adoption at
the council meeting of December 12, 2011.
Further discussion: council members can provide brief statements of their
reasoning if desired.
Voting aye:
Voting nay:
Abstentions:
absent, not voting:
....... .... . .... .... .. .... ',( 11 C.
. ... . ............
Motion carrieC . ....... . ...........
d.:
Page 2 of 3
Working Agenda
December 8, 2011
III. OTHER BUSINESS
1. The Council considered rescheduling the Deoemb 20, 2011, regular City Council
meeting. At
Council action VNA
Moved by Council Member d seconded by Council Member to
reschedule the December 20, 2011, regular City Council meeting to Monday,
December 19, 2011, at 7:00 p.m.
Noting aye:
Voting nay:
Abstentions:
IV. ADJOURNMENT
absent, not voting _
otion carried.
�'
.... _....... ......... ........ _ _........ ......... —..._._... _
Moved by Council Member a'nd seconded by Council Member to journ 3
the meeting.
Motion carried.
The meeting adjourned at � P.a).
ATTEST:
Christina Serres, City Clerk
ReNae J. Bowman, Mayor
Page 3 of 3
Kennedy
�L
Graven
CHARTERED
Michael T. Norton
470 US Bank Plaza
200 South Sixth Street
Minneapolis MN 55402
(612) 337-9242 telephone
(612) 337-9310 fax
mnorton a kennedy-graven.com
httn://www.kennecly-�4raven.com
ATTORNEY CLIENT PRIVILEGE
Date: December 5, 2011
To: Crystal City Council
From: Michael T. Norton, City Attorney
Re: Legal Issues Concerning Salvation Army Rental Dwelling License
INTRODUCTION AND BACKGROUND
Earlier this year, staff notified the owners of the property at 5600 — 34t1i Avenue North, a
single family residential dwelling owned by the Salvation Army (the "Property"), that a rental
license and inspection was required for the Property. The Salvation Army responded that it is
exempt from this requirement because the occupants are not typical tenants, but ministers acting
on behalf of the Salvation Army and appealed staff s determination to the City Manager, who
upheld staffs determination that the Salvation Army was required to apply for and receive a
rental dwelling license for the Property. The Salvation Army has appealed the City Manager's
interpretation of the provisions of Crystal City Code Chapter 425, and is requesting that the
Council hear the facts and grant the appeal.
The basic facts are:
The Property is a single family residential property owned by the Salvation Army
located at 5600 — 34th Avenue North;
- The Property is a non -homestead property according to Hennepin County tax records;
- The Salvation Army has directed the occupants of the Property, ordained ministers of
the Salvation Army, to reside in the Property rent-free, and has provided the
occupants with furniture, fixtures and equipment for their use;
- Crystal City Code § 425.07 Subd. 1 p) defines a rental dwelling as any apartment or
general housing unit let for occupancy, or any apartment or general housing unit
occupied by someone other than the owner of record regardless of familial
relationship or whether rent or other compensation is paid to the owner;
391649vl BJC KG400-1
Crystal City Code § 425.07 Subd. 1 g) defines a general housing unit as a dwelling
unit other than an apartment, including but not limited to those within a townhouse,
condominium, double bungalow, single-family, two-family or three-family building;
Crystal City Code § 425.07 Subd. 1 g) defines a dwelling unit as a (i) a single-family
dwelling or (ii) a discrete portion of a dwelling designed for occupancy by one
family;
Crystal City Code § 425.07 Subd. 1 e) defines a dwelling as a building or a portion
of a building designed for residential occupancy: the term includes single-family,
two-family, three-family and apartment dwellings but does not include hotels, motels,
nursing homes and boarding houses;
Staff and the City Manager determined that the Property as used by the Salvation
Army met the definition of Crystal City Code § 425.07 Subd. 1 p) which defines a
rental dwelling as any apartment or general housing unit occupied by someone other
than the owner of record regardless of familial relationship or whether rent or other
compensation is paid to the owner, because the ministers are occupying the Property,
owned by the Salvation Army as owner of record, as their residence;
Crystal City Code § 425.17 of the Crystal City Code requires all rental dwellings to
obtain a license;
Crystal has required rental licenses for other properties in Crystal used as church
rectories at 3447 Louisiana Avenue North and 3101 Virginia Avenue North;
A rental license application was made for the Property by the Salvation Army and an
inspection was conducted on August 24, 2011;
On September 6, 2011, the Crystal City Council issued a conditional rental license for
the Property, subject to completion of orders from the August 24, 2011, inspection;
By letters dated August 22, and October 13, 2011, attorneys for the Salvation Army
disputed that the Property is subject to Crystal City Code § 425.17, thereby appealing
the decision of the City Manager that the Salvation Army is subject to Crystal City
Code § 425.17;
ISSUES FOR THE COUNCIL
1. Is the Salvation Army's use of the Property a rental dwelling within the meaning
of Crystal City Code § 425.07 Subd. 1 p), because the Property is a general housing unit
occupied by someone other than the owner of record regardless of familial relationship or
whether rent or other compensation is paid to the owner?
2. If the Council answers question 1 in the affirmative, the Council should further
consider whether requiring the Salvation Army to comply with the provisions of Crystal City
Code § 425.17 regarding rental licensing registration will result in an "undue burden" OR
"substantial burden" on the Salvation Army's exercise of its religious freedom and religious
expression rights?
391649v1 BJC KG400-1 2
DISCUSSION
In connection with the issues for Council determination is a question of whether the
requirement of the Crystal City Code for the Salvation Army to receive a rental dwelling license
is an "undue or substantial burden" on the Salvation Army's religious expression rights.
The Religious Land Use in Institutionalized Persons Act (RLUIPA), 42 U.S.C. §2000cc
provides that government cannot impose or implement a land use regulation in a manner that
imposes a substantial burden on the religious exercise of a person, including a religious
assembly or institution such as the Salvation Army, unless the government demonstrates the
imposition of the burden on that person, assembly or institution:
• is in furtherance of a compelling government interest; and
■ is the least restrictive means of furthering that governmental interest.
Over the years, the terms substantial burden as found in RLUIPA is synonymous with
the term undue burden. The Crystal City Code requirements concerning rental dwelling of
licensing requirements is strictly speaking not a land use regulation, but is a regulation
addressing public health and safety issues, in this case to make sure that property used for rental
purposes or related uses is safe and habitable. The Property is not strictly a landlord/tenant
relationship, but the code recognizes other relationships whether the occupants are not the
owners and are residing in the respective property due to that relationship. Here, the Salvation
Army requires its ministers to live in the Property which the Salvation Army owns and
maintains. In terms of the governmental interest in providing safe housing, it is not required that
there be a traditional landlord/tenant relationship to require registration of the Property.
Therefore, it is my view that the City has a compelling governmental interest in requiring the
Salvation Army to register the dwelling used by its ministers as a rental dwelling and to undergo
the subsequent inspection for code compliance.
There are hundreds of cases that have addressed the issue of whether a particular
regulation is "the least restrictive means of furthering that compelling governmental interest".
The courts generally look to whether the governmental exercise of authority over religious
expression is neutral in its application, that is, not directed at the religious entity because of its
message. In our case, for example, all rental dwellings in the City, ranging from single family to
multifamily and including other religious entities, are required to register their parish building
used for residential purposes as a residential dwelling. Therefore, the City is not treating the
Salvation Army less well than secular properties, or other religious institutions that are similarly
situation which are required to register their property under the Rental Dwelling Ordinance.
Therefore, it is my view that the City has chosen the least restrictive means to advance its
compelling governmental interest and that the Council can find that the imposition of the rental
dwelling ordinance on the Property is not a "substantial burden" or an "undue burden" on the
Salvation Army and its First Amendment religious expression rights.I
1 Citations omitted; see, generally, American Law of Zoning, Section 28:1(5"' Ed.).
391649v1 BJC KG400-1
4141
Address:
Property Owner/Contact:
Inspection Date: 1 �
Reinspection Date(s):
Drive N, Crystaf'MN.• 85422 Phone: 763-531-1000 Fax: 763-531-1188
Inspection Cho9k►lst for One- and Two -Family Properties
Ph me Number:i- lctia 'StOi1 _
1` ,�rt,Cvr' tea: or Sale (n it l61:• Y;;xt5 Month
ate: h U + Rent I New Il•)_.
Renew
NO ORD,�RS
Certification Re ut� ired Y I,�
L
Heating System
0
0
tA
_
Water Heater
P
lu
:�
it)
Ln
C
Plumbing System
Electrical System 1
F
}�+
x
\
4-
,�`o
N
N
Structural Units
N
3
3°
c
°;
s
'[2
Check if repairs are
needed
P -Pass F -Fail
N
A
O
o
LL
r
v
>
E
a
v
ii
v
rO
to
M
OD
�C7
1.0
Mechanical/Utilities P F NA
1.1
11.11 1
Plumbing systems
5.0
Master bedroom
Water waste/vent
5.1
2nd bedroom'
11.131 Water meter/remote I I I I
a
ms
1.22
Space heaters X
7.0
1 Kitchen
t
1.3
Electrical systems
8.0
Living room
1.4
Circuits outlets fixtures
8.1
Family room
1.5
Water heater 14.
8.2
Den office
1.6
Clothes dryer
8.3
Halls stairways
1.7
Ventilation
8.4
Deck
1.8
Well
8.5
Porch
crawl space
9.0
JC3ara`ge/doors
2.0
Exterior
9.1
Common Areas
ectr ca outlet/fixtures
.
Driv ng par ng areas
ers area ace on aepara
see
S
F.3
Gutters downspouts
-lh= with no evaivatiun maTk or camruont are io eolnplian;:c wish Ciiy 00c.oral o wit applicahle,-Umpliomee
orders must be corrected on or before the compliance date noted above. When all orders have been corrected,
please call 763-531-1000 to schedule the required re -inspection. Upon satisfactory completion of all orders as
verified by the re -inspection the Certifcate of Compliance or Rental License will be issued to the individual
specified on the application form. For point of sale, the Certificate is valid for one year from date of issuance. -Am
rders relating to health, safety or nuisance conditions shall be corrected regardless of property status. -This
inspection does not indicate compliance with an inspection program other than that of the City of Crystal.
This inspection has been made by the city as a community service and does not constitute any representation,
guarantee or warranty to an person as to the condition of roe inspected. The city does not intend an reliance
g ty any property p ty y
to be made on this inspection and does not assume any responsibility or liability in the inspection and Certificate oi
Compliance or Rental License.
Crystal Property Maintenance Code Section 425.29, Appeals, Right of Appeal: When it is alleged by a person to
whom a compliance order is directed that the compliance order is based on erroneous interpretation or upon
misstatement or mistake of fact, that person may appeal the order to the city manager. The manager must forward
the recommendation to the city council within 30 days after receipt of this appeal. The appeal must be in writing
must specify the grounds for the appeal, and must be filed with the housing official within five business days after
service of the order. The filing of an appeal stays proceedings in furtherance of the action appealed from unless suatl
a stay in the judgment of the housing official would cause imminent peril to life, health or property. The city cou
act promptly on the manager's recommendation and the manager's recommendation may be reversed, modifi
or affirmed in whole or in rt by the council. The council's disposition of the appeal is final,
2.4
Venting/chimneys
2.5
Foundation
2.$
Walls/siding
2.7
2.8
2.,
Windows/doors screens
Roof
Grad! ng ra inage
3.0
Property
3.1
et aC S of coverage
ccessory structures
Use/occupancy
utstan ing orders
3.6
pen permits
rag
Vehicles outdoor storage
Landscapingegetation
4.0
Health and Safety f
.1
Smoke CO Alarms lr
4.2
Emergency egress
.3
Junk and debris
T.4
Other safety hazards b
4�_I�must
U I Ing n u m er
1 have Inspected these premises this day under the auth of the Crystal Property Maintenance Code.
Date" � ` i I Inspector: ' - � Cert/License No
White Ca CI - y Yallaw Copy - Owner/Applicant 1 x Page 1 of t y- 11-2010
City of Crystal Property Maintenance Compliance
4141 Douglas Drive N, Crystal MN 55422 Phone: 763-531-1000 Fax: 763-531-1188
NMI. COMMON COMPLIANCE ORDERS
Address: ;, . c,✓r`� %Li
Q✓ Che& ma k I dicates correction is required
e , ng Systems: Provide written documentation from a licensed mechanical contractor demonstrating that a service check
1.2 a98 required repairs have been performed an the heating system within the past 12 months. ]IPMC 603,I11
pectrical Systems; Provide written documentation from a licensed electrical contractor that e electrical systems of the
dwelling and accessory buildings have been evaluated; that the electrical service and wiring are adequate for the power
requirements of the dwelling and that the electrical system is compliant with the Minnesota Electrical Code as applicable.
1.3 [IPMC §0<11
Wat Heater: Install a discharge pipe on the water heater temperature pressure relief valve. The pipe will be the same size
1.S as a valve outlet and will terminate not greater than 18" above the floor. [IPMC 603.1, MPC 4715.2210]
othes Dryer: Install a minimum 4-inch diameter, smooth metal exhaust duct supported and secured in place. Do not use
sheet metal screws or fasteners that will obstruct the exhaust flow. The exhaust duct shall terminate outside of the buildin
1.1 and shall be equipped with a back draft dam er. Do not install screens at the exhaust duct termination. [MMC 1346.504]
Ventilation: Each toilet room shall be provide with natural ventilation by means of operable exterior openings of not less
than 1Y2 square feet; or provide mechanical ventilation directly to the exterior of the building. Install minimum R3.3
1.7 insulation with vapor barrier on ventilation ductwork for 3 feet starting at exterior penetration. [IPMC 403.2, MSRC R303.3]
Well: Advisory Only (POS): There is the possibility that there is an unsealed well located on the subject property.
1.8 Well: Advisory Only (POS/Rental): An unused well was discovered during the inspection. Owner should contact the MN Dept
of Health to verify well status.
Driving/Parking Areas -Replace: The non-hara-surfaced driveway existing at the time of Inspection shall e ar -sur ace
within 180 days of issuance of a Certificate of Compliance for point of sale inspections or within 180 days of issuance of a
rental license, whether new or renewal. All driveways and lawful auxiliary spaces shall be hard -surfaced with bituminous or
concrete pavement in accordance with standards approved by the city engineer. Submit a building permit application for
review and approval and secure a building permit before starting work on the new hard -surfaced driveway. [Crystal Code
'2 425.05, Subd. 2 h)1) 302.3]
r v ng ar ngAreas: Repair/replace the existing deteriorated driveway and lawfulauxiliary spaces with a ar -sur ace o
bituminous or concrete pavement in accordance with standards approved by the city engineer. Submit a building permit
application for review and approval and secure a building permit before starting work on the replacement hard -surfaced
driveway. [Crystal.City Code 425.05, Subd. 2 h)1) 302.3] _
Use/Occupy, y: This property is zoned R-1, Low Density Residential, one -family detached dwelling, and use of any portion of
the property as a second dwelling unit is not permitted. Separations resulting in a second dwelling unit is prohibited. [Crystal
3.3 City; Code 515.33]
oke Detectors/CO Alarms: Install and maintain fully functional smoke alarms in all sleeping rooms, in areas leading to
sleeping rooms, on each level and in the basement. Install and maintain an approved fully functional CO alarm within 10 feet
4.1 of each sleeping room. [IPMC 704.2 and MN § 299F.501
Emergency Egress: Install code compliant emergency escape and rescue openings (egress windows) in rooms used for
4.2 sleeping purposes. [IPMC 702.4]
Building Number: Install the building identification numbers on the dwelling. The numbers will be clearly visible from the
street in front of the dwelling and will be a minimum 4 inches in height and of a contrasting color with their background
4.5 [Crystal City Code 400.17, IPMC 304.3, MSFC 505.1]
Garage/Doors: Repair or replace the existing vehicle access garage door. Secure a building permit before starting work or
the replacement of the vehicle access garage door. The replacement vehicle access garage door will comply with the wine
9.0 limitation requirements of the Minnesota State Building Code. [IPMC 304.15, MSRC R301.2.11
Garage/Doors: Service, repair or replace the existing overhead garage door automatic opener compliant with the provision:
of Minnesota Statutes, sections 325F.82 and 325F.83 [IPMC 304.15, MSBC 1303.1400]
Inspection Date: j —.i _q — I(
White Copy - City Yellow Copy- Owner/Applicant/Contractor Paget of 10.2
- City of Crustal Property Maintenance Compliance
(7 4141 Douglas Drive N, Crystal MN 55422 Phone: 763-531-1000 Fax: 763-531-1188
COMPLIANCE ORDERS
Address:
' . �'► f.y'i t fc
f. JF1
' 1 4
Inspection Date: 4
WhlteCopy -City YellowCopy- Owner/Applicant page. of 11-2010
Date & Time of Today's Inspection:
HOUSING FACT SHEET
cd -sl_a�4` Iti 9ttr\,
4ddress: Year Built:
dates of pire vious Code Cornp]hame InSPections:
Type of Dwelling: FSISingle Family _ Condo
Apt, Building Split
ambler Towhhome
Number of Bedrooms. ctc��
Upper Level evel
Accessory Structure:
Private well on property:
City water year
Garage:
Year Built:
F'QAtt hca ed
Roof:
Roof Date: G
Fireplaces: Basement
2
None
❑ Masonry
Finished rooms in basement:
Family Room
Kitchen Facilities
Egress Windows
Basement bath:
atercloset
4Vindow)
Furnace:
Original
iwater Heater:
Original
Drain tile system: Mxes{�cr Discharged outside: I/ h'es
Comments:] w
to - o) ie 11
El Yes
t�.
PDouble bungalow
Two-story
F-13rd Level
7No
Year Sealed
F-14th Level
Detached ®Double "VI FISin I�
Demensions:
•. J;q; (e 6 No. of layers:
Family Room Living Room F70ther
Metal
Legal bedrooms #QY 1 a Walkout
arvatory + Far} Shower
Replaced Year T3 l
Replaced Year
RNo
No
12