Loading...
HomeMy WebLinkAboutStaff Report 6.B 07/06/2015 Part 1Agenda Item #6.B x; DATE: July 6, 2015 TO: Honorable Mayor and Membersfof the City Council through the City Manager FROM: Eric Danly, City Attorney �,,A Andrea Visveshwara, Assistant City Attorney SUBJECT: Resolution Upholding the Planning Commission's Determination that a Religious Facility, Village Baptist Church, is a Permitted Use at 3835 Cypress Drive, Suite 107 and 108 and Denying the Appeal Submitted by the Adjacent Tenants RECOMMENDATION It is recommended that the City Council approve the proposed Resolution Upholding the Planning Commission's Determination that a Religious Facility, Village Baptist Church, is a Permitted Use at 3835 Cypress Drive, Suite 107 and 108, and Deny the Appeal Submitted by the Adjacent Tenants. If the City Council adopts the proposed resolution, at the conclusion of the item, the Mayor should advise the public that adoption of the resolution shall constitute the City's final action on determination of the Application, and that pursuant to Civil Procedure Code section 1094.6, any such petition challenging such action shall be filed not later than the 90th day following the date on which the decision becomes final. BACKGROUND As discussed in further detail below, the appeal presented to the City Council involves the application of a federal statute, the Religious Land Use and Institutionalized Persons Acti ( RLUIPA) to a proposed application. In sum, RLUIPA prohibits the City from discriminating against religious facilities through land use regulations. Specifically, RLUIPA promulgates the following rules 2: (1) General Prohibition. The City shall not implement a land use regulation that imposes a "substantial burden" on religious exercise, including religious assembly, unless the regulation furthers a "compelling government interest" by the "least restrictive means." (2) Equal Terms. The City shall not impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms compared to a similar secular use. 142 U.S.C. § 2000cc, et seq. 2 42 U.S.C. § 2000cc. (3) Nondiscrimination. The City shall not implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination. (4) Exclusions and limits. The City shall not implement a land use regulation that completely excludes religious assemblies from its jurisdiction or unreasonably limits them. On December 1, 2015, the applicant, Village Baptist Church, submitted an application to amend an approved Conditional Use Permit (CUP) allowing a religious facility at 3835 Cypress Drive, in the Business Park zoning district, and with a Business Park land use designation. The application requested: (a) an expansion of church service hours; and (b) an increase in the number of attendants on Sunday mornings (Application). A copy of the Application is attached as Attachment A to the Planning Commission Agenda Report at pages 8 -7 of Attachment 4. On January 14, 2015, public notice of the Application was provided to all owners and occupants within 500 feet of the project site, and in the Argus- Courier on January 15, 2015. Staff received seven letters during the public comment period. All letters received (see Attachment B to Attachment 4) voiced opposition to the Application. The commenters expressed concern about potential parking, theft, damage, noise and overuse of shared restroom facilities. Upon further review of the Application, staff identified a potential conflict between the City's Implementing Zoning Ordinance (IZO) and RLUIPA. The IZO presently identifies "Religious facility" as an allowable use in certain Zoning Districts, all subject to CUPs. (IZO, Tables 4.1- 4.4.) In contrast, "Club, Lodge, Private Meeting Hall" is permitted by right in certain zones and by conditional use permit in other districts. (IZO, Tables 4.1 -4.4.) The key distinction between the two types of uses appears to be based on whether the assembly of individuals is for religious purposes or secular purposes. With respect to the zones in which a CUP was required for a religious facility, but not a Club, Lodge, Private Meeting Hall (referred to herein as "Club "), the Director could not identify a legitimate regulatory purpose for treating the two uses differently. In light of the similarities between the Application and a Club and the mandates of RLUIPA, on February 18, 2015, the Director determined that a CUP was not required, and instead, issued a compatible use determination under IZO § 3.030(D), finding that the proposed application constituted a Club. The Director's Determination is found at pages 36 -37 of Attachment 4. On March 3, 2015, attorney Sean Marciniak of Miller Starr Regalia, on behalf of certain tenants,3 filed an appeal of the Director's Determination. The appeal is included at pages 38 -90 of Attachment 4, and staff s analysis of that appeal is included at pages 2 -5 of Attachment 4. On April 28, 2015, the Planning Commission heard the appeal of the Director's Determination. The Planning Commission heard comments from both opponents and supporters of the Application. The minutes from that meeting are included as Attachment 6. As discussed in further detail at pages 5 -6 of Attachment 4, IZO §§ 1.030.B and 3.030.1) authorizes the determination of when a proposed use is similar to another one, if certain findings are made. In sum, the Planning Commission found those findings could be made because: (1) the Application was similar to a 3 Those tenants include: Cypress 204 Partners; Paula Gardner, DDS; Blair Kirk, DDS; Ray Ramos, DDS; Cheryl Willett, DDS; SML Property Management, LLC; Norman Pang, MD; Torkelson and Associations, LLP, CPAs; 3835 Cypress Drive, #207, LLC; Michael Bozuk, MD; and Mark Roper, DDS. 2 Club with respect to type and intensity of use because both uses involve the assembly of members to facilitate common interests and have similar hours of operation and parking; (2) there is no distinction between the impacts of a Club and the Application; and (3) the Application was consistent with the Business Park land use designation and zoning because it serves as a visitor service establishment by serving as a venue in which people may assemble and therefore, matched a permitted use. After a lengthy deliberation by the Planning Commission, the Planning Commission voted 4 -2 to adopt a resolution upholding the Director's Determination and denying the appeal. The Resolution is included as Attachment 2. On May 12, 2015, Michael Bozuk, a condominium owner at 3835 Cypress Drive, on behalf of himself and other occupants at 3835 Cypress Drive, filed an appeal of the Planning Commission's Resolution (Appeal). The Appeal is included as Attachment 3. DISCUSSION 1 IZO § 24.070 provides that the City Council may consider any issue involving the matter that is the subject of the appeal, in addition to the specific grounds for the appeal. After doing so, the City Council may: "Affirm, affirm in part, or reverse the action, determination or decision that is the subject of the appeal." This means that the City Council reviews the Planning Commission's Resolution de novo. If the City Council finds, based on substantial evidence in the record, that the Application is similar to a Club, as defined in the IZO, and/or finds that enforcement of the CUP requirement at Table 4.4 of the IZO would violate RLUIPA, it is recommended that the City Council adopt the proposed resolution affirming the Planning Commission's resolution and deny the Appeal. To do so, the City Council must make the same findings as the Planning Commission. Thus, staff refers the Council to pages 5 -6 of Attachment 4 for discussion of the basis for recommendations as it relates to these findings. Mr. Bozuk filed the Appeal because he contends: "the hearing in front of the Planning Commission was filed with incorrect information and with misrepresentations of laws and regulations." (Attachment 3, p. l.) The appeal points are summarized below in italics and followed by staff s analysis on that point. The CUP requirement does not impose a substantial burden on religious organization. (Attachment 3, pp. 1 -2.) As explained above, RLUIPA sets forth four different types of rules as it relates to prohibiting discrimination against religious facilities and assemblies. By contending that the CUP does not impose a substantial burden, the Appeal focuses on just the General Prohibition rule of RLUIPA, as described above, but does not address the Equal Terms rule. Although the concepts of the General Prohibition rule were discussed in front of the Planning Commission, ultimately, the issue presented by the Application is whether the Equal Terms rule prohibits application of the City's IZO. 4 Those occupants include: "Mike Bozuk representing a consortium of condominium owners, consisting of doctors, dentists, and other practitioners, who have property interests at 3835 Cypress Drive (collectively, the 3835 Cypress Drive Community). Cheryl and Ray Ramos; Chadborne Hawley; Michael Haas; Tammy Reaney; Michael Bozuk; Chris and Kim Stevens; Norman Pang; Paula Gardner." (Attachment 3.) 3 In 2011, the 9th Circuit Court of Appeals5 in Centro Familiar Cristiano Buenas v. City of Yuma (Centro), considered whether a city's zoning ordinance, which required churches to obtain a CUP in a particular zone, but allowed other uses by right, such as entertainment venues, auditoriums, and museums, treated a church on less than equal basis, when compared to a secular comparator.6 The court held that by requiring the CUP, when other similar uses were allowed by right, the city was treating the church on a less than equal basis, and such less equal terms were not well adapted to fulfilling the accepted zoning criteria that defined the zone.7 One of the reasons for the court's holding included finding that the impacts of the church were similar to the impacts to the uses permitted by right . 8 Here, the Business Park District zone would treat religious facilities different from Clubs. Based on the Application submitted, as well as evidence presented to the Planning Commission, the Planning Commission determined that the Application, which is primarily the assembly of an organization's members involves impacts indistinguishable from those of a secular assembly use. (Attachment 2, p. 3.) Neither the Director nor the Planning Commission could identify a legitimate regulatory purpose for treating the Application differently than one for a Club. The accessory uses of a wedding, fund raiser or funeral9 could occur at a Club. Just as the City's noise regulations, special permits and occupancy limits would impose restrictions on these accessory uses at Clubs, they impose restrictions on the Application to the extent that these accessory uses may occur. The Appeal does not address the Equal Terms rule, nor make any reference to the Centro case, which is binding on the City. Whether a CUP imposes a substantial burden on the applicant is irrelevant in light of the Equal Terms requirement as interpreted by Centro. The Application has the potential to conflict with existing uses. Instead of lowering the requirements for a religious facility; the City should increase the requirements for a Club, by imposing the CUP requirement. (Attachment 3, p. 2; see also p. 6.) As was discussed at the Planning Commission, in 2013 -14, as a major City Goal, the City Council directed staff to update the IZO as it related to its treatment of religious facilities. The Planning Commission was concerned about the fact that a Club was a permitted use by right, acknowledging that there was the potential for conflict between a Club and other allowed uses in the zone. A CUP requirement could address some of those issues. City staff is working on those proposed amendments to the IZO, and will consider the Planning Commission's feedback in preparing the IZO amendments. However, the City must enforce the laws that exist at the time 5 The federal judicial branch is divided into eleven circuits. California, and thus, the City, is located in the 9th Circuit. Opinions issued by the Ninth Circuit Court of Appeals are controlling law. Opinions issued by other circuits may be offer persuasive authority, but are not controlling. Sometimes, the appellate courts for the different circuits issue conflicting opinions, in which case, for the City, the 9th Circuit opinion would prevail in a conflict. 6 651 F.3d 1163, 1167, 1173 (9th Cir.). 7 Id. at 1175. 8 Id. at 1174 -75. 9 A Mortuary, Funeral Home defined by the IZO as, "homes and parlors, where deceased are prepared for burial or cremation, funeral services may be conducted," is not permitted in the Business Park zoning district. Although a funeral service alone may not trigger any land use permits under the IZO, the transport of the deceased may trigger other permits. See Cal. Health and Safety Code §§ 7000, et seq.; 103050, et seq. L! of the Application. As discussed above, RLUIPA precludes the enforcement of the CUP for the religious facility, and currently, a Club is permitted by right. The Application may not be consistent with Conditions, Covenants and Restrictions (CCR's). (Attachment 3, pp. 6 -7.) CCR's are restrictions that may govern the use of a property and are placed on the property by private parties, such as Homeowners' Associations. Typically, the City does not evaluate whether a proposed use is consistent with CCR's because the City typically has no jurisdiction to enforce private CCR's. It is up to the Applicant to ensure that the proposed use complies not only with the City's regulations, but also with regulations imposed by either the other governmental agencies or private parties. The Planning Commission's Resolution effectuates a change in the IZO without following proper procedure, including environmental review. (Attachment 3, p. 4.) Federal law, including RLUIPA, can preempt a state or local law to the extent there is a conflict, such as when compliance with both federal and local laws are physically impossible, or alternatively, when the local law is an obstacle in fulfilling a federal purpose.10 RLUIPA is a federal law with the purpose of protecting "the exercise of religion in institutions from unwarranted and substantial infringement. "11 To the extent that the IZO treats a religious use on less favorable terms compared to a similar secular use, RLUIPA provides the legal authority which prohibits the enforcement of such less favorable terms against the religious use. For example, in Mintz v. Roman Catholic Bishop of Springfield (2006 D. Mass.) 424 F.Supp.2d 309, 322, the Massachusetts district court held that the Zoning Board was excused from enforcing a zoning regulation when enforcement would have violated RLUIPA. Here, the proposed City Council resolution is consistent with RLUIPA, and limited to this Application. No permanent change of the IZO is effectuated by adopting the proposed resolution. Without effectuating any permanent change in the IZO, the proposed City Council resolution does not constitute action subject to environmental review pursuant to the California Environmental Quality Act (CEQA). California Public Resources Code section 21065 defines, in relevant part, a "project" as, "An activity that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies." The proposed resolution does not fall into any of those aforementioned categories. There is no permit issued by adoption of the proposed resolution. Thus, it does not fall within CEQA's purview. PUBLIC COMMENT A number of public comment letters were received prior to and at the Planning Commission hearing and are included at pages 18 -35 of Attachment 4 and Attachment 5. Notice of the City Council hearing was duly noticed in the Argus - Courier as well as mailed notification to all property owners within a 500 foot radius and all previous commenters on the project. Written comments received since April 28, 2015, are included as Attachment 7. 10 Pacific Gas and Electric Co. v. State Energy Resources (1983) 461 U.S. 190, 204. 11 Mayweathers v. Newland (9th Cir. 2002) 314 F.3d 1062, 1068. FINANCIAL IMPACT There are no expenditures associated with implementation of the interpretation of the zoning code, beyond staff s time associated with processing the appeal. ATTACHMENTS 1. Resolution Upholding the Planning Commission's Resolution of Compatible Use and Denying the Appeal 2. Planning Commission's Resolution of Compatible Use and Denying the Appeal 3. Appeal 4. Planning Commission Agenda Report for April 28, 2015, Item No. 9A (with its attachments, except the proposed PC resolution) 5. Planning Commission Late Mail 6. Planning Commission Minutes for April 28, 2015 (relevant excerpt) 7. Written Public Comment (received since April 28, 2015) 0 ATTACHMENT 1 RESOLUTION OF THE CITY OF PETALUMA CITY COUNCIL UPHOLDING THE PLANNING COMMISSION'S DETERMINATION THAT A RELIGIOUS FACILITY, VILLAGE BAPTIST CHURCH, IS A PERMITTED USE AT 3835 CYPRESS DRIVE, SUITE 107 AND 108 AND DENY THE APPEAL SUBMITTED BY THE ADJACENT TENANTS ASSESSOR'S PARCEL NO. 005-300-0079 005 - 300 -008 File No. PLAP -15 -0001 WHEREAS, on December 1, 2015, Village Baptist Church submitted an application to amend an approved Conditional Use Permit (CUP) allowing a religious facility at 3835 Cypress Drive, in the zoning Business Park District (Application); and WHEREAS, on January 14, 2015, public notice of the Application was provided to all owners and occupants within 500 feet of the project site, and in the Argus- Courier on January 15, 2015; and WHEREAS, after providing public notice and upon further review of the application, the Director identified a potential conflict between the City's Implementing Zoning Ordinance (IZO) and the Religious Land Use and Institutionalized Persons Act (RLUIPA), a federal statute that requires cities to treat religious uses and similar secular uses on equal terms unless there is a legitimate regulatory purpose for treating the religious use on less than equal terms (Centro Familiar Cristiano- Buenas Nuevas v. City of Yuma (2011) 651 F.3d 1163, 1172- 1173); and WHEREAS, with respect to the Business Park District in which a Conditional Use Permit would be required for a religious facility, but a "Club, Lodge, Private Meeting Hall" was allowed by right, the Director could not identify any legitimate regulatory purpose to justify treating the two uses differently; and WHEREAS, in light of similarities between the Application and a Club, Lodge, Private Meeting Hall and the mandates of RLUIPA, on February 18, 2015, the Director determined that a new Conditional Use Permit was not required and instead issued a compatible use determination under IZO §3.030(D), finding that Application was similar to a Club; and WHEREAS, on March 3, 2015, Sean Marciniak of Miller Starr Regalia, on behalf of other tenants at 3835 Cypress Drive, submitted an appeal of the Planning Director's determination; and WHEREAS, the Planning Commission considered the Appeal at a duly noticed public hearing on April 28, 2015, as required by IZO Section 24.010, and upheld the Director's Determination; and WHEREAS, on May 12, 2015, Michael Bozuk, a condominium owner at 3835 Cypress Drive, on behalf of himself and other occupants at 3835 Cypress Drive, filed an appeal of the Planning Commission's Resolution (Appeal); and VA WHEREAS, the Appeal was received timely and, as required by IZO Section 24.070, states the pertinent facts, the basis for the appeal, and the relief sought by the appellant of the Planning Commission's Determination; and WHEREAS, a staff report with attachments, dated July 6, 2015, was prepared in response to the Appeal and is hereby incorporated by reference; and WHEREAS, the City Council considered the Appeal at a duly noticed public hearing on July 6, 2015, as required by IZO Section 24.010. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Petaluma as follows: 1. Findings: Based on the IZO, staff report and its attachments, presentations by staff, public comment, and the public hearing, the City Council makes the following findings: a. The foregoing recitals are true and correct and are incorporated by reference (see Staff Report, Attachment 4, pp. 1 -2, 36 -37); and b. Village Baptist Church submitted an application to use Assessor Parcel Nos. 005- 300 -007, 005- 300 -008 (Property) as a location to assemble for worship services as its primary purpose, with proposed special event purposes, such as fundraisers, weddings and funerals (Application)(Staff Report, Attachment 4, p. 9); and c. The Property has a land use designation of Business Park, and is zoned Business Park District (Staff Report, Attachment 4, pp. 1 -2); and d. IZO identifies "Religious facility" as an allowable use in Business Park Zoning District, subject to Conditional Use Permit (IZO, Table 4.4); and e. The IZO defines a "Religious facility" as a permanent facility operated by a religious organization exclusively for worship, or the promotion of religious activities, including accessory uses on the same site. Examples of these types of facilities include churches, mosques, synagogues, and temples (IZO, Glossary); and f. "Club, Lodge, Private Meeting Hall" is permitted by right in the Business Park District (IZO, Table 4.4); and g. The IZO defines "Club, Lodge, Private Meeting Hall" as permanent, headquarters -type and meeting facilities for organizations operating on a membership basis for the promotion of the interests of the members, including facilities for: business associations, civic, social, and fraternal organizations labor unions and similar organizations, political organizations, professional membership organizations, and other membership organizations (IZO, Glossary); and h. As it relates to the Business Park District, the primary distinction between Religious facility and a Club, Lodge, Private Meeting Hall as defined in the IZO is that the Religious facility definition applies to organizations assembling for religious purposes while Club, Lodge, Private Meeting Hall applies to organizations that gather for non - religious, or secular purposes (IZO, Glossary, Staff Report, Attachment 4, p.2); and i. Within the Business Park District, such special event uses, such as fundraisers, weddings, and funerals are ancillary with the primary uses of both the uses of Religious Facility and a Club, Lodge, Private Meeting Hall (Staff Report, Attachment 4, p. 5); and j. The Application is similar to a Club, Lodge, Private Meeting Hall with respect to type and intensity of use because: 1) both uses involve assembling groups of members together to facilitate common interests and 2) the hours of operation and parking are comparable to that of a club, lodge or private meeting hall (Staff Report, Attachment 4, p. 4); and k. The Business Park District zone is intended for business and professional office, technology park clusters, research and development, light industrial operations, and visitor service establishments (Staff Report, Attachment 4, p. 5); and 1. A visitor service establishment includes a Club, Lodge, Private Meeting Hall as evidenced by the fact that it is a place where people assemble and a permitted use in the Business Park District zone (Staff Report, Attachment 4, p. 5); and m. The Application is consistent with the purposes of the Business Park District zone because it serves as a visitor service establishment by serving as a venue in which people may assemble (Staff Report, Attachment 4, p. 5); and n. Similar to the associated BP zoning, the Business Parkland use designation provides for professional offices, technology park clusters, and research and development (Staff Report, Attachment 4, p. 5); and o. Therefore, the proposed religious facility is consistent with the applicable General Plan designation of Business Park because it is an allowed use within that designation as well as Business Park zoning district (Staff Report, Attachment 4, p. 6); and p. There is no applicable specific plan that applies to the property (Staff Report, Attachment 4, p. 5); and. q. The religious facility is compatible with other uses permitted in the Business Park District such as office, medical services, and multiple recreation, education and public assembly uses because there is no distinction between the impacts of a Club, Lodge, Private Meeting Hall and a Religious facility in this zoning district (Staff Report, Attachment 4, p. 6); and E r. A Club, Lodge, Private Meeting Hall is a permitted use by right in other zoning districts, but a Religious facility is not a permitted use by right in any of the city's zoning districts (IZO, Tables 4.1 -4.4); and s. The Religious Land Use and Institutionalized Persons Act (RLUIPA) (42 U.S.C., § 2000cc, et seq.) requires the City to treat religious institutions similar to other, secular assembly uses unless the City can demonstrate that treatment on less than equal terms furthers a legitimate regulatory purpose (Centro Familiar Cristiano- Buenas Nuevas v. City of Yuma (2011) 651 F.3d 1163, 1172 - 1173); and t. Under RLUIPA, requiring a conditional use permit is on less than equal terms when compared to allowing a use by right (Centro Familiar Cristiano- Buenas Nuevas v. City of Yuma (2011) 651 F.3d 1163,1172-1173); and u. The record lacks substantial evidence to support a finding that there is compelling government interest that necessitates treating the proposed religious use differently from a Club, Lodge, Private Meeting Hall. 2. Based on the foregoing findings, the City Council concludes there is substantial evidence that the Application is similar to a Club, Lodge, Private Meeting Hall. 3. Pursuant to IZO § 24.070.G.1, the City Council affirms the Planning Commission's Determination that the Application is similar to a Club, Lodge, Private Meeting Hall, and therefore, does not require a Conditional Use Permit. 4. To the extent that there is a conflict between this Resolution and the Planning Commission's determination, the findings and action of this Resolution shall prevail over the Planning Commission's resolution and Director's Determination. 5. This Resolution shall take effect immediately upon adoption by the City Council and the City Council's adoption of this Resolution shall be deemed the final determination by the City that the Application is to be treated as a Club, Lodge, Private Meeting Hall. 6. Pursuant to Civil Procedure Code section 1094.6, any petition challenging this Resolution shall be filed not later than the 90th day following the date on which the decision becomes final. 10 ATTACHMENT 2 RESOLUTION NO. 2015-05 CITY OF PETALUMA PLANNING COMMI=SSION UPHOLDING THE PLANNING DIRECTOR'S DETERMINATION THAT A RELIGIOUS FACILITY IS A PERMITTED USE AT 3835 CYPRESS DRIVE, SUITE 107 & 108 ASSESSOR'S PARCEL NO, 005-300-007,005-300-008 File No. PLAP -15 -0001 WHEREAS, on December 1, 2015, Village Baptist Church, submitted an application to amend an approved Conditional Use Permit (CUP) allowing a religious facility at 3835 Cypress Drive, in the zoning Business Park District ( "Application "); and WHEREAS, on January 14, 2015, public notice of the Application was provided to all owners and occupants within 500 feet of the project site, and in the Argus- Courier on January 15, 2015; and WHEREAS, after providing public notice and upon further review of the application, the Director Identified a potential conflict between the City's Implementing Zoning Ordinance (IZO) and the Religious Land Use and Institutionalized Persons Act (RLUIPA), a federal statute that, requires cities to treat religious uses and similar secular uses on equal terms unless there Is a legitimate regulatory purpose for treating the religious use on less than equal terms (Centro Familiar Crfstfano- Buenas Nuevas v. City of Yuma (2011) 651 F,3d 1163, l t7"z *173) ; and WHEREAS, with respect to the Business Park District In which a do%rditionai Use Permit would be required for a religious facility, but a "Club, Lodge, Private Meeting Hall" was allowed by right, the Director could not identify any legitimate regulatory purpose to justify treating the two uses differently; and WHEREAS, in light of similarities between the Application and a Club, Lodge, Private Meeting Hall and the mandates of RLUIPA, on February 18, 2015, the Director determined that a Conditional Use Permit amendment was not required and, instead, issued a compatible use determination under IZO §3.030(D), finding that Application was similar to a Club; WHEREAS, on March 3, 2015, Sean Marciniak of Miller Starr Regalia, on behalf of other tenants at 3835 Cypress Drive, submitted an appeal of the Planning Director's determination ( "Appeal "); and WHEREAS, the appeal was received timely and, as required by IZO Section 24.070, states the pertinent facts, the basis for the appeal, and the relief sought by the appellant of the Director's Determination; and WHEREAS, a staff report with attachments, dated April 28, 2015, was prepared in response to the Appeal and is hereby incorporated by reference; and WHEREAS, the Planning Commission considered the Appeal at a -d-uly noticed public hearing on April 28, 2015, as required by IZO Section 24.010, Page 1, Attachment 2 Planning Commission Resolullon No. 2015.05 Page i NOW THEREFORE, BE IT RESOLVED by the Planning Commission of the City of Petaluma as follows: 1. Findings: Based on the IZO, staff report and Its attachments, presentations by staff, public comment, and the public hearing, the Planning Commission makes 60ollowing findings: a. The foregoing recitals are true and correct'and are incorporated by reference (see Staff Report, pp. 1 -2; Attachment C); and `- b. Village Baptist Church submitted an application to use Assessor Parcel Nos. 005 -300- 007, 005- 300 -006 ( "Property ") as a location to assemble for worship services as its primary purpose, with proposed special event purposes, such as fundraisers, weddings and funerals ( "Application ") (Staff Report, Attachment A, p. 2); and c. The Property has a land use designation of Business Park, and is zoned Business Park District (Staff Report, pp. 1 -2); and d. IZO identifies "Religious facility" as an allowable use in Business Park Zoning District, subject to Conditional Use Permit (IZO, Table 4.4); and e. The IZO defines a "Religious facility" as a permanent facility operated by a religious organization exclusively for worship, or the promotion of religious activities, Including accessory uses on the some site. Examples of these types of facilities include churches, mosques, synagogues, and temples (IZO, Glossary); and I. "Club, Lodge, Private Meeting Hall" is permitted by right In the Business Park District (IZO, Table 4.4); and g. The IZO defines "Club, Lodge, Private Meeting Hall" as permanent, headquarters -type and meeting facilities for organizations operating on a membership basis for the promotion of the Interests of the members, including facilities tor;`business associations, civic, social, and fraternal organizations labor unions and'simllar organizations, political organizations, professional membership organizations, and other membership organizations (IZO, Glossary); and h. As it relates to the Business Park District, the primary distinction between Religious facility and a Club, Lodge, Private Meeting Hall as defined in the IZO is that the Religious facility definition applies to organizations assembling for religious purposes while Club, Lodge, Private Meeting Hall applies to organizations that gather for non - religious, or secular purposes (IZO, Glossary, Staff Report, pp.2); and i. Within the Business Park District, such special event uses, such as fundraisers, weddings, and funerals are ancillary with the primary uses of both the uses of Religious Facility and a Club, Lodge, Private Meeting Hall (Staff Report, pp. 5); and J. The Application is similar to a Club, Lodge, Private Meeting Hall with respect to type and intensity of use because: 1) both uses involve assembling groups of members together to facilitate common Interests and 2) the hours of operation and parking are comparable to that of a club, lodge or private meeting hall (Staff Report, pp. 4); and k. The Business Park District zone Is intended for business and professional office, technology park clusters, research and development, light Industrial operations, and visitor service establishments (Staff Report, pp, 5); and Page 2, Attachme Planning Commisslon Resolullon No. 2015 -05 Page 2 A visitor service establishment includes a Club, Lodge, Private Meeting Hall as evidenced by the fact that it is a permitted use in the Business Park District zone (Staff Report, pp. 5); and m. The Application Is consistent with the purposes of the Business Park District zone because it serves as a visitor service establishment by serving as a venue in which people may assemble (Staff Report, pp. 5); and n, Similar to the associated BP zoning, the Business Park land,use,designation provides for professional offices, technology park clusters, and research arid-development (Staff Report, 5); and o. Therefore, the proposed religious facility is consistent with the applicable General Plan designation of Business Park because it Is an allowed use within that designation as well as Business Park zoning district. (Staff Report, 6); and p. There is no applicable specific plan that applies to the property (Staff Report, 5); and. q, The religious facility Is compatible with other uses permitted in the Business Park District such as office, medical services, and multiple recreation, education and public assembly uses because there Is no distinction between the impacts of a Club, Lodge, Private Meeting Hail and a Religious facility in this zoning district (Staff Report, pp. 6); and r, A Club, Lodge, Private Meeting Hall is a permitted use by right in other zoning districts, but a Religious facility is not a permitted use by right in any of the city's zoning districts (IZO, Tables 4.1 -4.4); and s. The Religious Land Use and institutionalized Persons Act (RLUIPA) (42 U.S.C„ § 2000cc, et seq,) requires the City to treat religious institutions similar to other, secular assembly uses unless the City can demonstrate that treatment on less than equal terms furthers a legitimate regulatory purpose (Centro Familiar Crlstiono- Buenas Nuevasv. City of Yuma (2011) 651 F,3d 1163, 1172- 1173); and t. Under RLUIPA, requiring a conditional use permit Is on less than equal terms when compared to allowing a use by right (Centro Familiar Crfstiano-Buenas Nuevas v. City of Yuma (2011) 651 F.3d 1 163, 1172- 1173); and u. The record lacks substantial evidence to support a finding that there Is compelling government interest that necessitates treating the proposed religious use differently from a Club, Lodge, Private Meeting Hall. 2. Based on the foregoing findings, the Planning Commission concludes there is substantial evidence that the Application is similar to a Club, Lodge, Private Meeting Hail. 3. Pursuant to IZO § 24,070,G.1, the Planning Commission affirms the Director's Determination that the Application is similar to a Club, Lodge, Private Meeting Hall, and therefore, does not require a Conditional Use Permit. 4. To the extent that there is a conflict between this Resolution and the Director's Determination, the findings and action of this Resolution shall prevail over the Director's Determination. Page 3, Attachment Planning Commission Resolullon No, 201505 P ge 3 ADOPTED this 281h day of April, 2015, by the following vote: Coiiimissio.n Member Aye:':; No. AEsent '' Abttatn Vice Chair Benedetti- Petnic x Gomez X Chair Lin X Marzo X Counciimember Barrett x Pierre X Wolpert AGIn9aB9en_ede&ttI-Peinlc, Vice Chair • ther HI ther - •� mmlsslon Secretary APPROV p AS TO FORM: Andrea Visveshwara, Assistant City Attorney - Page 4, Attachment 2 Planning Commission Resolution No. 2015 -05 . , Page 4 MAY 11. 2015 A CONSORTIUM OF CONDOMINIUM OWNERS 3635 CYPRESS DRIVE PETALUMA, CA. 94954 CITY OF PETALUMA COMMUNITY DEVELOPMENT DEPARTMENT CITY COUNCIL 11 ENGLISH STREET, PETALUMA CA, 94952 SUBJECT': APPEAL OF PWP- 15-0001 VILLAGE SAPTIST CHURCH ATTACHMENT 3 Page 1, Attachment 3 Date: 05/11/2015 Introduced by: Mike Bozuk representing a consortium of condominium owners, consisting of doctors, dentists, and other practitioners, who have property interests at 3835 Cypress Drive (collectively, the "3835 Cypress Community`. Cheryl and Ray Ramos; Chadborne Hawley; Michael Haas; Tammy Reaney; Michael Bozuk; Chris and Kim Stevens; Norman Pang; Paula Gardner 3835 Cypress Drive, Petaluma, CA 94954 (707) 540 -5752 Subject: Appeal of PLAP -1 5 -0001, Village Baptist Church Dear Sir or Madam: We are writing to appeal the decision of the Planning Commission to issue a Permit by Right to Village Baptist Church on April 28, 2015. We are appealing the Planning Commissions' decision to allow the unconditional use of 3835 Cypress drive by Valley Baptist Church. We feel that the hearing in front of the Planning Commission was filled with Incorrect information and with misrepresentations of laws and regulations. The Planning Commission either did not address the concerns of the existing property owners or simply ignored them. It was clear that the Planning Commission made their decision under duress and pressure from the city attorney, and likely under the threat of legal action. Each and every office and business at 3835 Cypress Drive went through a Use permit process and likely ended up with a Conditional Use Permit To allow a business such as a church, which relies on meetings of very large groups of members into a professional building will have negative Impact on the current users and will potentially Inhibit their business functions. The building lacks the capacity to accommodate a large gathering, Including parking spaces, utilities, and safety systems. We request that the issue be addressed by the City Council as this decision will have far reaching effects on the whole business c9mmunity In Petaluma. We also request that the City Council research the lei and other ramifications of this decision, as we feel that the current decision to allow the business into 3835 Cypress Drive discriminates against the existing business owners. The grounds on which we wish to appeal are summarized below. The director and staff analysis is detailed in Italics and follow by our appeal. RLUIPA excuses compliance with the state and local laws cited by the appellant. Federal law, including RLUIPA, can preempt a state or local law to the extent that it conflicts with the state or local law, such as when compliance with both federal and local law are physically Impossible, or alternatively, when the local law is an obstacle In fufflllingafederal purpose. Page 2, Attachment 3 RLUIPA is a federal law with the purpose of protecting "the exercise of religion in institutions from unwarranted and substantial lgfringement " (Attachment A, p 3 -) The staff recommendation that the Planning Commission adopt the proposed resolution affirming the Director's determination the Conditional Use Permit requirement at Table 4.4 of the IZO would violate RLUIPAI, That RLUIPA excuses compliance with the state and local laws. However, the Conditional Use Permit does not impose a substantial burden on religious organization. RLUIPA invokes the statute's "substantial burden" clause, which states: No government shall 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, unless the government demonstrates that imposition of the burden on that person, assembly, or institution (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.z In mandating strict scrutiny of land use regulations that substantially burden religious exercise, RLUIPA never defines "substantial burdens However, the legislative history reveals that the substantial burden requirement is to be "interpreted by reference to Supreme Court jurisprudence. "4 In Civil Liberties for Urban Believers v. Chicago (C.L,UR),sthe Seventh Circuit became the first federal appellate court to render a decision defining RLUIPA's substantial burden prong in the land use context. The plaintiffs, a coalition of churches and religious organizations, argued that RLUIPA was violated by a provision of the Chicago zoning ordinance that required them to seek special use approval In order to operate in commercial and business districts! In analyzing this RLUIPA claim, the Seventh Circuit held that "a land -use regulation that imposes a substantial burden on religious exercise is one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise... effectively impracticable. "'Perhaps unsurprisingly, the plaintiffs were unable to overcome this formidable requirement of showing that their religious exercise had become effectively impracticable. Despite acknowledging that five churches involved in the case "expended considerable time and money" to locate within the Chicago city limits, the court held that those expenditures "[did) not entitle them to relief under RLUIPA's substantial burden provision.. "a 1. Religious Land Use and Institutionalized persons Act of 2000, 42 U.S.C. §§ 2000cc (2006) 2.42 UaC. § 2000cc(a)(1) (2006). _ 3. See 42 U.S.C. § 2000cc -5 (2006) (`Deftnittons" subsection of RLUIPA), 4.146 CONG. REC.16,700 (2000) Qoint statement of Sons. Hatch & Kennedy); see also id. ("The term'substantial burden' as used In this Act is not intended to be given any broader interpretation than the Supreme Court's articulation of the concept of substantial burden or religious exercise "j. 5.342 F.3d 752 (7th Cir. 2003). 6. Id. at 755-56,759-60. 7. Id. at 761. Two years later, In Sts. Constantine & Helen Greek Orthodox Church v. City of New Berlin, 396 F.3d 695,900-01 (7th C1r.2005), the Seventh Circuit seemed to ease the restrictive language ofC.L.U.B.; however, the following year, C.LA.B; s substantial burden test was reaffirmed by Vision Church v Village of Long Grove, 468 P.3d 975,997 (7th Cir. 2006). 8. C.L.U.13 , $42 F.3d at 761, Page 3, Attachment 3 Here, the Business Park District would treat Religious factlitles dfferent from Clubs. Based on the Application submitted, and subsequent conversations with the applicant, the Director has determined that the Application, which is primarily the assembly of an organization's members, involves impacts indistinguishable from those of a secular assembly use. The Director could not ident(fy any reasons why the Application should be treated differently Than a proposed assembly for secular purposes Thus, in light of the federal law mandate, the Director determined that the Application for use as religious assembly should be treated on the same terms as the use for assembly for secular purposes. (Attachment A, p 3.) Even if a religious institution can successf dly snake the demanding showing of unequal treatment that courts have required, RLUIPA imposes no obligation on municipal executives or legislatures to remedy the inequality by granting a religious entity the permit; variance, or other land use benefit it desires. Instead of correcting Inequities by elevating religious land uses to the same footing as secular uses, governments can and do eliminate equal terms violations by rescinding privileges granted to secular institutions.° Based on the events and comments on the Valley Baptist Church Appeal of Director's Determination on April 28, 2015 PLAP -15 -0001, Michael Haas has submitted his clarifications and additional comments. (See Attachment B) Therefore, we are requesting your reconsideration of this issue. If there is any additional information I could provide to you that would expedite this matter, please feel free to contact me. Thank you for your time and consideration of this Important matter. Attachment A. Director's Determination Attachment B: Michael Hass Clarifications and Comments Sincerely, Mike Bozuk Page 4, Attachment 3 Attachment B In addition to our original appeal, I would like make some ciadlications and add some comments. First, I would tike to tali you a little about our building so that you can get a sensual the landscape. The building was first constructed as a single tenant building, for one single user, but when the economy suffered, the space was divided into 20 commercial condominiums. So what we have here is much like a residentlal condominium, except businesses. These businesses operate at each other's elbows, with a shared space in the middle. We share walls, we share bathrooms, and we share parking, Again, it is like a moldentlal condominium but Instead of homes, we have physicians, dentists, accountants, and others In residence. Our building is one of the smaller ones, and that small building Is split Into 20 suites. I would like to point out that each suite Is allocated only a limited number of parking spaces and at no time can an owner utilize more than that aitocatton24 hours hours a day 7 days a week. On weekends the parking lot Is generally used less, but the deeded right of each owner gives them access to their spots at anytime. At the last hearing the listing agent said there was open parking on the weekends... THIS IS FALSE. The suites are accessed through an entry that leads Into a foyer that is approx 14 by 30 feet. Off this foyer are several entries to suites, the elevator, the restrooms and the main staircase. This is not a large space... and it Is to be used only for Ingress and egress. We believe in religious freedom and do not condone discrimination of any kind. I believe in the Religious Land Use and Institutionalized Persons Act (RLUIPA).The Issues that we have are of compatibility of use within this building and how to bast change the zoning so that Churches and meeting halls are treated equally and all uses are compatible in our building.. End of story... I talked to Edo teene at the Department of Justice In Washington D.C. Edo handles the RLUPIA cases. (his phone number is 2026144713) We talked In generalities, but he said he would be willing to talk to the City about coming up with a solution that wouldn`t violate RLUPIA I asked him about the Church of Our Savior v. City of Jacksonville case. Here the case was resolved when the City changed the zoning of Meeting Halls to Conditional Use so that they matched the Conditional Use of Churches. I feel the City of Petaluma can do the same. All we ask is that you try to make this work. The r6dMbers of the Board brought this up at the last hearing. They too felt a church was incompatible without conditions and wanted to raise the bar and change the zoning of Meeting Halls to be conditional use. By approving a religious facility use at 3835 Cypress Drive as a permitted use, not subject to conditions, the City essentially has approved a broad spectrum of uses for which it would require special permits had the applicant been part of a secular organization. This seems unfair. Also in 2010 when The Community for Spiritual Living went into 3836 Cypress Drive, they were granted a CUP with the following conditions: • Sunday Services 812, maximum at servloe 70 • The business can only utilize 8.40 of the building • Evening events can only be held 3 times per week, from 8:309:30, with a maximum attendance of 16. In 2010, the City of Petaluma felt that a business of this scope would not be compatible in our building without conditions of use. The Village Baptist Church is an even larger business ... so the same protective conditions should be Issued. One must remember that these conditions are not only for the protection of the rights of the other owners in the building, but for the protection of all the people using the building. Limits are set to make sure all safety, traffic, noise Issues are maintained. If a group of 120 were meeting in a smog room ( the VBC meeting room is approx 1260 square feet) and a fire started, would they all (including handicapped people) be able to exit safety. This leads me to another clarification of the last hearing. The Village Baptist Church was issued a permit from the fire department for maximum capacity of 180 people. This was based on an empty room... No chairs, benches or other furniture were In the MOM at the time of this report Once seating (and assume the parishioners will be sitting for a 2 hour service or an all day conference) the maximum occupancy goes way down...depanding on the seating the Page 5, Attachment 3 occupancy can go down to 85. The City should require another Occupancy Report once the furnishing is in place, The City has the right through the RLUPIA Safe Harbor to change its zoning—so it should change both Meeting Hells and Churches to be Conditional use. We feel that a Meeting Hallwithout, any conditions in our building would Incompatible. 1 do agree that many of the church's activities are the same as those that go on in a meeting hail. I also agree that those common activities should have the some zoning treatment. The problem is you have this larger circle of a religious facility that includes a broad - spectrum activities andvdthin that larger circle you have the small circle of meeting halls and their activities. a It is a problem to take the bigger circle, of a religious organization, make it fit within the smaller circle of a meeting hall ... It makes much more sense to change the zoning of the Meeting Halls to require Conditional Use Permits ... then both would be treated equally without discrimination and the City would retain Its right to impose restrictions in all cases. I believe the right to impose use restrictions to be the major function of the city planning department and it doesn't make sense to give up that right when it could jeopardize the harmony of all Petaluma businesses. The group of people in our building Is all servkoe- oriented businesses, who on a daytoday basis, go out of their way to help and heal people. in many cases their work requires an environment that Is quiet and serene. All of the owners are good people with a good mission. The proposed land use that gave rise to this appeal was an application by the Village Baptist Church to use apace in our building (through the purchases of two ofRoe sultes). The Village Baptist Church are also . good people with a good mission. I applaud the church in its mission to help Its congregation to celebrate flWa joys and withstand life's sorrows. I believe there are good people on every side of the equation, and the appeal here is about how to best harmonize everyone's goals when these goals have the potential to confticL Because, there IS potential conflict on the horizon, If allowed to operate without restrictions, the church has the potential to Interfere with the medical, dental, accounting and other businesses in 3535 Cypress Drive. Without restrictions, this business could hold weddings, funerals, conferences and other noisy, passionate events at any time. While these events are essential parts of the human experience, there Is a time and place for them, and we're Just asking the City to regulate the time, place and size of these and other church activities. That's all were asking For the City to retain its right to impose conditions on religious facilities, and any other business that might be incompatible In a Business Park zone — what were asking for Is aimed solely to address legitimate zoning criteria. That being said, I want to remind you, our building, a building of condos, with shared walls and spaces and limited ingress and egress ... Is unlike many of the other buildings In this business park which are stand alone buildings with ample parking and large setbacks from neighbors. Our setbacks from each other are a negligible ... a common wall...A big difference..... a use that works in a stand alone building does not work U our shared space building ... at least not without conditions of use. At the first hearing we heard from the Board members that this IZO was done through an outside contract. The people of Petaluma didn't even put this zoning together. We were told it was only an interim zoning ordinance. l feel the City really needs to look at the Business Park Zoning and make some changes. Some of the businesses that are approved by right would not work without conditions In-many of the buildings. The staff report says, the City must treat religious Institutions the same as secular assembly uses unless the City can demonstrate that there is a legitimate regulatory purpose to treat the religious use differently. This is at the top of page 2 of the staff report. Page 6, Attachment 3 - - It is Important to note that the "acoessoW uses that are defined as part of a " religlous factlW all require a conditional use permit, when they are proposed for secular use In a Business Park zone.,. For example. Table 4.4 of the zoning code requires a conditional use permit for school instruction. The code requires a conditional use permit for conference facilities, which, we submit, Is what you are left with when you propose a church with unlimited abiifttes to host weddings and conferences. Funeral homes, meanwhile, are not permitted in a Business Park zone. I know the staff report says the zoning interpretation we've appealed does not authorize a mortuary/funeral home in our zone, but the code dearly defines a funeral home to mean a "home or parlor where deceased are prepared for burial or crema @on," and where "funeral services may be conducted." The Village Baptist Church proposes, without any omits on frequency or time, to hold funeral services and so, white it may not conduct all the activities of a funeral home, it conducts one of the critical services provided by a funeral home. The point is, if the City were considering a secular club with the foregoing, "accessory uses" that dub would have to apply for a conditional use permit The City's staff report says on page 6, at the very top, that funerals and weddings are accessory uses and would be allowed for a club. It bears mention too, that wherever someone In this city wishes to hold outdoor and other special events, that person, whether part of a religious or secular organization, must apply to the City for a special permit, subject to conditions, under section 7.07 of the zoning ordinance. The staff report calls these differences "theoretical," and asks you to took only at the actual proposed use here before you today. Theta on page 4 of the staff report. For the first time we hear the zoning determination is for the Village Baptist Church's application only. Staff has reviewed the church's application —which was for a conditional use permit -- and, sitar unrecorded conversations with the applicant, determined the particular church here. because of the way In which that particular church "saki' It would operate, did not need a conditional use permit, but was permitted by right. A couple things: First, the church's application, which is attachment A to the staff report, Is vague. The majority of the application desodbes the %Allege Baptist Church's existing activities. It does not state when or how often these activities will take place. Where the application contemplates future uses, It does so vaguely. For Instance, the application states: 'We would also like to be approved for special events Ilke funerals, weddings, and fundraisers." There are no self imposed restrictions on the time or frequency of these special events, or whether they will be indoors or outdoors. Now would these activities be conducted in their small suites without affecting4he.property rights of the other owners? If this was a stand alone bullding, these activities would be less of an Issue. It seems that the city does not take Into account the difference between condominium buildings and stand alone buildings. Secondly, the VBC applied for a CUP and felt it needed one. if the City decides it will not require a conditional use permit for the Village Baptist Church, the City then, In this scenario, will have approved a religious facility, with all of Its accessory uses, without any ability to control those accessory uses, weather they are foreseen or unforeseen. The staff report says, on the bottom of page 4, that there is no potential for a public noise nuisance because there would be no use of Impact wrenches, Internal combustlon engines, saws or drill. Staff cite zoning ordinance section 21,040(A)(3). But that same section, paragraph (A)(9), Indicates that "any loudspeaker, loudspeaker system, or similar device° has the potential to be a public nuisance. One could foresee that the %page Baptist Church would use such a system to address its 126 congregation members, and project both speech and music at weddings and funerals, and this Is a potential circumstance that has not undergone any review. This issue Is especially relevant in our building with shared common walls and close proximity to each other. Page 7, Attachment 3 Likewise with parking. The staff report Indicates that 'when a use Is permitted. parking is not calculated' End of story. But without any clear controls on the frequency and duration of church uses, there Is a clear potential for parking issues, as there are only limited spots available to the church —11 spots, to be specific. For 128 people, the zoning code requires one parking space for four seats. So about 30 parking spaces would be required, The staff report, In saying that "when a use Is permitted, parking is not calculated." doesn't feel right and, what's more, seems to contradict the City's code. 1=ven if the City determined a conditional use permit was unnecessary, the church Is currently doing work in the building that requires building and electrical permits, and therefore it appears to me that City staff indeed must calcuiate parking spaces, and this Church only has 11 spaces. The City says it does not need to do an environmental review. The zoning determination effectively Is a change of the zoning rules, regardless of the motivating reason. Is It really the case that, when the City changes its zoning ordinances, which many times does not involve the issuance of a permit to a specific applicant Is It really the case that the City can get by without environmental review? And I've mentioned this idea that the zoning determination here Is a change to the zoning ordinance. The staff report says, "no, Ifs not our determination affects only the application submitted by the Village Baptist Church.' But in the same breath, says, "Similar fact situations In the future may require similar staff analysis." The determination before you today will live beyond the and of this evening and, to be honest, what staff Is proposing here, which is the review of religious facilities on a cesebycese basis, sounds very much tike an individual review process, which sounds very much like a conditional use permitting process. Only here, whars proposed Is a conditional use process that ends without conditions. We ask the Planning Commission to take the extra step and retain the right to Impose conditions on religious facilities in our Business Park zone, and ensure that different neighbors are operating In ways that are compatible. We acknowledge the church's right to be in the business park and wish them success. We simply want the Planning Commission to understand that our building of common ownership with shared walls etc is much different than a stand -alone building business park and requires different consideration. We're asking you to exercise your discretion to make sure the Village Baptist Church operates within the boundaries and definitions of a club and prevent it from extending Its uses into the larger circle. Again, the staff report says they have the discretion to impose conditions on a religious facility ff it Is for a legitimate regulatory reason. At the least I would hope the City would change the zoning of Meeting Halls to be a conditional use. This would equal the field for both churches and meeting halls and would allow the City to retain some control of the uses of these businesses in the Business Park.1 am sure conditions can be imposed on the Village Baptist Church, which would not create any burden to them or our building. The property rights of all parties Involved needs to be considered, Please consider this and explore all avenues to see if this can work. Page 8, Attachment 3 In addition to our original appeal, I would like make some clarifications and add some comments. First, i would like to tell you a little about our building so that you can get a sense of the landscape. The building was first constructed as a single tenant building, for one single user, but when the economy suffered, the space was divided into 20 commercial condominiums. So what we have here is much like a residential condominium, except businesses. These businesses operate at each other's elbows, with a shared space in the middle. We share wails, we share bathrooms, and we share parking, Again, it Is like a residential condominium but, instead of homes, we have physicians, dentists, accountants, and others In residence. Our building is one of the smaller ones, and that small building is split into 20 suites, i would like to point out that each suite is allocated only a limited number of parking spaces and at no time can an owner utilize more than that allocation -24 hours hours a day 7 days a week. On weekends the parking lot Is generally used less, but the deeded right of each owner gives them access to their spots at anytime.. At the last hearing the listing agent said there was open parking on the weekends... THIS IS FALSE. The suites are accessed through an entry that leads Into a foyer that is approx 14 by 30 feet. Off this foyer are several entries to suites, the elevator, the restrooms and the main staircase. This Is not a large space.,. and it is to be used only for ingress and egress. We believe In religious freedom and do not condone discrimination of any kind. I believe in the Religious Land Use and Institutionalized Persons Act (RLUIPA).The issues that we have are of compatibility of use within this building and how to best change the zoning so that Churches and meeting hails are treated equally and all uses are compatible in our building.. End of story.. talked to Eric teen at the Department of Justice in Washington D.C. Erie handles the RLUPIA uses. (his phone number Is 202 - 514-4713) We talked in generalities, but he said he would be willing to talk to the City about coming up with a solution that wouldn't violate RLUPIA. I asked him about the Church of Our Savior v. City of Jacksonville case. Here the case was resolved when the City changed the zoning of Meeting Halls to Conditional Use so that they matched the Conditional Use of Churches. I feel the City of Petaluma can do the same. All we ask Is that you try to make this work. The members of the Board brought this up at the last hearing. They too felt a church was Incompatible without conditions and wanted to raise the bar and change the zoning of Meeting Halls to be conditional use. By approving a religious facility use at 3835 Cypress Drive as a permitted use, not subject to conditions, the City essentially has approved a broad spectrum of uses for which it would require special permits had the applicant been part of a secular organization. This seems unfair. Also In 2010 when The Community for Spiritual Living went into 3835 Cypress Drive, they were granted a CUP with the following conditions; • Sunday Services 9-12, maximum at service 70 • The business can only utilize 8.4% of the building Page 9, Attachment 3 Evening events can only behold 3 times per week, from 8:30.9:30, with a maximum attendance of 15. In 2010, the City of Petaluma felt that a business of this scope would not be compatible in our building without conditions of use. The Village Baptist Church is an even larger business...so the same protective conditions should be issued. One must remember that these conditions are not only for the protection of the rights of the other owners In the building, but for the protection of all the people using the building. Umlts are set to make sure all safety, traffic, noise Issues are maintained. if a group of 120 were meeting in a small room ( the VBC meeting room Is approx 1260 square feet) and a fire started, would they all (including handicapped people) be able to exit safely. This leads me to another clarification of the last hearing. The Village Baptist Church was issued a permit from the fire department for maximum capacity of ISO people. This was based on an empty room... No chairs, benches or other furniture were in the room at the time of this report. Once sealing (and assume the parishioners will be sitting for a 2 hour service or an all day conference) the maximum occupancy goes way down..depending on the seating the occupancy can go down to 85. The City should require another Occupancy Report once the furnishing are In place. The City has the right through the RLUPiA Safe Harbor to change its zoning..so it should change both Meeting Halls and Churches to be Conditional use. We feel that a Meeting Hall,without, any conditions In our building would incompatible. I do agree that many of the church's activities are the same as those that go on in a meeting hall..l also agree that those common activities should have the same�zcning treatment. The problem Is you have this larger drde of a religious facility that includes a broad spectrum activities and within that larger circle you have the small circle of meeting hails and their activities. It Is a problem to take the bigger circle, of a religious organization, make It IN within the smaller circle of a meeting hall ... it makes much more sense to change the zoning of the Meeting Halls to require Conditional Use Permits ... then both would be treated equally without discrimination and the City would retain its right to impose restrictions in all cases. I believe the right to impose use restrictions to be the major function of the city planning department and it doesn't make sense to give up that right when it could jeopardize the harmony of all Petaluma businesses. The group of people in our building are all service oriented businesses, who on a day - today basis, go out of their way to help and heal people. In many cases their work requires an environment that is quiet and serene. All of the owners are good people with a good mission. The proposed land use that gave rise to this appeal was an application by the Village Baptist Church to use space in our building (through the purchases of two office suites). The Village Baptist Church are also good people with a good mission. I applaud the church in its mission to help its congregation to celebrate life's joys and withstand Iite's sorrows. Page 10, Attachment 3 I believe there are good people on every side of the equation, and the appeal here Is about how to best harmonize everyone's goals when these goals have the potential to confilct Because, there IS potential conflict on the horizon. If allowed to operate without restdotions, the church has the potential to interfere with the medical, dental, accounting and other businesses in 3835 Cypress Drive. Without restrictions, this business could hold weddings, funerals, conferences and other noisy, passionate events at any time. While these events are essential parts of the human experience, there is a time and place for them, and we're just asking the City to regulate the time, place and size of these and other church activities. That's all we're asking -For the City to retain its right to impose conditions on religious facilities, and any other business that might be incompatible in a Business Park zone — what we're asking for is aimed solely to address legitimate zoning criteria. That being said, I want to remind you, our building, a building of condos, with shared wails and spaces and limited ingress and egress,Js unlike many of the other buildings in this business park which are stand alone buildings with ample parking and large setbacks from neighbors. Our setbacks from each other are a negliglble...a common wall...A big difference ..... a use that works in a stand alone building does not work in our shared space building ... at least not without conditions of use. At the first hearing we heard from the Board members that this iZO was done through an outside contract The people of Petaluma didnY even put this Zoning together. We were told it was only an interim zoning ordinance. I feel the City really needs to look at the Business Park Zoning and make some changes. Some of the businesses that are approved by right, would not work without conditions In many of the buildings. The staff report says, the City must treat religious institutions the same as secular assembly uses unless the City can demonstrate that there is a legitimate regulatory purpose to treat the religious use differently. This Is at the top of page 2 of the staff report it is Important to note that the "accessory" uses that are defined as part of a " religious facility" all require a conditional use permit, when they are proposed for secular use in a Business Park zone... For example, Table 4.4 of the zoning code requires a conditional use permit for school instruction. The code requires a conditionai use permit for conference facilities which, we submit, is what you are left with when you propose a church with unlimited abilities to host weddings and conferenoes. Funeral homes, meanwhile, are not permitted in a Business Park zone. I know the staff report says the zoning interpretation we've appealed does not authorize a mortuary/funeral home in our zone, but the code dearly defines a funeral home to mean a °home or parlor where deceased are prepared for burial or cremation,° and where `funeral services may be conducted." The Village Baptist Church proposes, without any limits on frequency or time, to hold funeral services and so, while it may not conduct all the activities of a funeral home, it conducts one of the critical services provided by a funeral home. Page 11, Attachment 3 The point is, If the City were considering a secular club with the foregoing, "accessory uses" that club would have to apply for a conditional use permit The City's staff report says on page 6, at the very top, that funerals and weddings are accessory uses and would be allowed for a club. It bears mention too, that wherever someone in this city wishes to hold outdoor and other special events, that person, whether part of a religious or secular organization, must apply to the City for a special permit, subject to conditions, under section 7.07 of the zoning ordinance. The staff report calls these differences "theoretical," and asks you to look only at the actual proposed use here before you today. Thars on page 4 of the staff report For the first time we hear the zoning determination is for the Village Baptist Church's application only. Staff has reviewed the church's application — which was for a conditional use permit — and, after unrecorded conversations with the applicant, determined the particular church here, because of the way in which that particular church "said' it would operate, did not need a conditional use permit, but was permitted by right A couple things. First, the church's application, which is attachment A to the staff report, Is vague. The majority of the application describes the Village Baptist Church's existing activities. It does not state when or how often these activities will take place. Where the application contemplates future uses, R does so vaguely. For instance, the application states; WV9 would also like to be approved for special events like funerals, weddings, and fundralsers." There are no self - imposed restrictions on the time or frequency of these special events, or whether they will be indoors or outdoors. How would these activities be conducted in their small suites without affecting the property rights of the other owners? If this was a stand alone building, these activities would be less of an issue. it seems that the city does not take Into account the difference between condominium buildings and stand alone buildings. Secondly, the VBC applied for a CUP and felt it needed one. If the City decides it will not require a conditional use permit for the Village Baptist Church, the City then, in this scenario, will have approved a religious facility, with all of its accessory uses, without any ability to control those accessory uses, weather they are foreseen or unforeseen. Page 12, Attachment 3 The staff report says, on the bottom of page 4, that there is no potential for a public noise nuisance because there would be no use of impact wrenches, internal combustion engines, saws or drill. Staff cite zoning ordinance section 21.040(A)(3). But that same section, paragraph (A)(9), Indicates that "any loudspeaker, loudspeaker system, or similar device° has the potential to be a public nuisance. One could foresee that the Village Baptist Church would use such a system to address its 125 congregation members, and project both speech and music at weddings and funerals, and this is a potential circumstance that has not undergone any review. This issue is especially relevant in our building with shared common walls and close proximity to each other. Likewise with parking. The staff report indicates that "when a use is permitted, parking Is not calculated." End of story. But without any clear controls on the frequency and duration of church uses, there Is a clear potential for parking issues, as there are only limited spots available to the church —11 spots, to be specific. For 125 people, the zoning code requires one parking space for four seats. So about 30 parking spaces would be required. The staff report, In saying that "when a use is permitted, parking Is not calculated," doesn't feel right and, what's more, seems to contradict the City's code. Even If the City determined a conditional use permit was unnecessary, the church is currently doing work in the building that requires building and electrical permits, and therefore it appears to me that City staff Indeed must calculate parking spaces, and this Church only has 11 spaces. The City says It does not need to do an environmental review. The zoning determination effectively is a change of the zoning rules , regardless of the motivating reason. Is it really the case that, when the City changes Its zoning ordinances, which many times does not involve the issuance of a pen-nit to a specific applicant — Is it really the case that the City can get by without environmental review? And I've mentioned this Idea that the zoning determination here Is a change to the zoning ordinance. The staff report says, "no, It's not, our determination affects only the application submitted by the Village Baptist Church." But, in the same breath, says "similar fact situations In the future may require similar staff analysis" The determination before you today will live beyond the end of this evening and, to be honest, what staff Is proposing here, which Is the review of religious facilities on a case -by -case basis, sounds very much like an individual review process, which sounds very much like a conditional use permitting process. Only here, what's proposed is a conditional use process that ends without conditions. We ask the Planning Commission to take the extra step and retain the right to impose conditions on religious facilities in our Business Park zone, and ensure that different neighbors are operating In ways that are compatible. We acknowledge the church's right to be in the business park and wish them success. We simply want the Planning Commission to understand that our building of common ownership with shard walls etc is much different than a stand atone building business park and requires different consideratian.We're asking you to exercise your discretion to make sure the Village Baptist Church operates within the boundaries and definitions of a club and prevent It from extending Its uses Into the larger circle. Page 13, Attachment 3 t Again, the staff report says you have the discretion to Impose conditions on a religious facility If it Is for a legitimate regulatory reasons. At the least 1 would hope the City would changing the zoning of Meeting Hails to be a conditional use. This would equal the field for both churches and meeting halls and would allow the City to retain some control of the uses of these businesses in the Business Park. I am sure conditions can be imposed on the Village Baptist Church which would not create any burden to them or our building. The property rights of all parties involved needs to be considered. Please consider this and explore all avenues to see if this can work.. Page 14, Attachment 3 LU.tr 1g�6 DATE: April 28, 2015 TO: Planning Commission FROM: Ellen Hill, Assistant Planner Andrea Visveshwara, Assistant City Attorney REVIEWED BY; Heather Hines, Planning Manager SUBJECT: VILLAGE BAPTIST CHURCH APPEAL Appeal of Director's Determination 3835 Cypress Drive PLAP -15 -0001 ATTACHMENT 4 AGENDA ITEM NO, 9.A RECOMMENDATION It is recommended that the Planning Commission adopt the proposed resolution upholding the Director's determination of compatible use and deny the appeal. BACKGROUND On December 1, 2015, the applicant, Village Baptist Church, submitted an application to amend an approved Conditional Use Permit (CUP) allowing a religious facility at 3835 Cypress Drive, in the Business Park zoning district, and with a Business Park land use designation, The application requested: (a) an expansion of church service hours; and (b) an increase in the number of attendants on Sunday mornings ( "Application "). A copy of the Application is attached as Attachment A, On January 14, 2015, public notice of the Application was provided to all owners and occupants within 500 feet of the project site, and in the Argus- Courier on Januo"115, 2015. Staff received seven letters during the public comment period. All letters received (see Attachment B) voiced opposition to the Application. The commenters expressed concern about potential parking, theft, damage, noise and overuse of shared restroom facilities. - Upon further review of the Application, staff identified a potential conflict between the City's Implementing Zoning Ordinance (IZO) and Religious Land Use and Institutionalized Persons Act' ( RLUIPA), a federal statute to, in part, protect religious institutions from discrimination in zoning laws. In summary, RLUIPA requires the City to treat religious institutions similar to ' 42 U.S.C.A § 2000cc, et seq. Page 1, Attachment 4 other, secular assembly uses (e.g., meeting hall, theaters) unless the City can demonstrate that there is a legitimate regulatory purpose to treat the religious use differently. 2 The IZO presently identities "Religious facility" as an allowable use in certain Zoning Districts, all subject to Conditional Use Permit. (IZO, Tables 4.1 -4.4.) In contrast, "Club, Lodge, Private Meeting Hall" is permitted by right in certain zones and by Conditional Use Permit in other districts. (IZO, Tables 4.14.4.) The key distinction between the two types of uses appears to be based on whether the assembly of individuals is for religious purposes or secular purposes. With respect to the zones in which a Conditional Use Permit was required for a religious facility, but not a "Club, Lodge, Private Meeting Hall" (referred to herein as "Club "), the Director could not identify any legitimate regulatory purpose to justify treating the two uses differently. In light of similarities between the proposed use and a Club and the mandates of RLUIPA, on February 18, 2015, the Director determined that a Conditional Use Permit amendment was not required and, instead, issued a compatible use determination under IZO §3.030(D), finding that proposed application constituted a Club. The Determination is attached as Attachment C. DISCUSSION On March 3, 2015, an appeal of the Director's determination was filed by -Sean Marciniak with Miller Star Regalia on behalf of other tenants at the project site. The full text of the appeal is included in Attachment D. The appeal points are summarized below in italics and followed by staffs analysis on that point. The City's existing treatment of religious facilities is appropriate under federal law addressing the land use regulation of religious institutions. A court would not afirm the Determination and interpretations supporting it. (Attachment D, pp. 8 -12.) A court interprets a municipal code similar to any other statute.4 However, courts usually afford deference to an agency's interpretation of its own code, so long as the interpretation is not arbitrary and capricious, meaning not supported or procedurally unfair.5 As it relates specifically to RLUIPA, the City has the burden of showing there is substantial evidence to justify treatment of a church on less than equal terms is, compared to a secular use, comparable.6 Appellants rely primarily on a lower court decision, Centro Familiar Cristiano Buenas Nuevas v, City of Yuma (D. Ariz, 2009) 615 F. Supp.2d 980 to support their argument that the City can 2 Centro Familiar Cristiano Buenas Nuevas v. City of Yuma (2011) 651 F.3d 1163, 1173, 1175 interpreted "equal terms" to mean that a city was prohibited from requiring a conditional use permit (CUP) from a religious assembly, when it did not require a CUP from similarly situated secular assembly; unless it could demonstrate that there was a legitimate regulatory purpose. Cypress 204 Partners; Paula Gardner, DDS; Blair Kirk, DDS; Ray Ramos, DDS; Cheryl Willett, DDS; SML Property Management, LLC; Norman Pang, MD; Torkelson and Associates, LLP, CPAs; 3835 Cypress Drive, #207, LLC; Michael Bozuk, MD; and Mark Roper, DDS. City of Monterey v. Carrnshimba (2013) 215 Cal.AppAth 1068, 1087. s Ibid.; Anderson First Coalition v. City of Anderson (2005) 130 Cal.AppAth 1 173, 1192. 6 Centro, supra, 651 F.3d at 1173. 2 Page 2, Attachment 4 require a conditional use permit for the proposed use. (Attachment•D, p. 11.) However, in 2011, that lower court decision was subsequently reversed by an appellate court in Centro Familiar Cristiano Buenas v. City of Yuma (9th Cir.) 651 F.3d 1163 ( "Centro'). The subsequent appellate case is controlling. The issue considered by Centro was whether the city's zoning ordinance, which required churches to obtain a conditional use permit in a particular zone, but allowed other uses by right, such as entertainment venues, auditoriums, museums, treated a church on less than an equal basis, when compared to a secular comparator.? The court held that by requiring the conditional use permit, when other similar uses were allowed by right, the city was treating the church on a less than equal basis, and such less than equal terms were not well adapted to fulfilling the accepted zoning criteria that defined the zone.$ One of the reasons for the court's holding included the finding that the impacts of the church were similar to the impacts to the uses permitted by right. 9 Here, the Business Park District would treat Religious facilities different from Clubs. Based on the Application submitted, and subsequent conversations with the applicant, the Director has determined that the Application, which is primarily the assembly of an organization's members, involves impacts indistinguishable from those of a secular assembly use. The Director could not identify any reasons why the Application should be treated differently than a proposed assembly for secular purposes, Thus, in light of the federal law mandate, the Director determined that the Application for use as religious assembly should be treated on the same terms as the use for assembly for secular purposes. (See Attachment C.) The issuance of the Determination violates the City's zoning ordinance because the Director cannot make findings that religious facilities are not listed as allowed in another zone. As a result, the Determination is a de facto zoning amendment that has not followed proper procedure and has not been adopted by the City Council. (Attachment D, pp. 3 -5.) RLUIPA excuses compliance with the state and local laws cited by the appellant. Federal law, including RLUIPA, can preempt a state or local law to the extent that it conflicts with the state or local law, such as when compliance with both federal and local law are physically impossible, or alternatively, when the local law is an obstacle in fulfilling a federal purpose.' RLUIPA is a federal law with the purpose of protecting "the exercise of religion in institutions from unwarranted and substantial infringement." 11 To the extent that the IZO treats a religious use on less favorable terms compared to a similar secular use, RLUIPA provides the legal authority which prohibits the enforcement of such less favorable terms against the religious use. For example, in Mintz v. Roman Catholic Bishop of Springfield (2006 D. Mass.) 424 F.Supp,2d 309, 322, the Massachusetts district court held that Zoning Board was excused from enforcing a zoning regulation when enforcement would have !d, at 1 167, 1173. a Id, at 1175. 4 Id at 1174 -75. 10 Pac(fte Gas and Electric Co, v. State Energy Resources (1983) 461 U.S. 190, 204. 11 Ma)weathers v Newland (9th Cir. 2002) 314 F.3d 1062, 1068. Ki Page 3, Attachment 4 violated RLUIPA. Thus, Director's Determination must be reviewed in light of RLUIPA, not just state and local zoning laws. The Determination is consistent with federal law, which in this case, preempts any conflicting local law. - The Determination would have effects throughout the IZO. (Attachment D, p. 4.) The Determination was intended to govern only the Application proposed. To the extent that the Determination may be interpreted as extending beyond the actual Application, the proposed resolution for the Planning Commission's consideration is intended to clarify that the determination governs the proposed Application only. However, similar fact situations in the future, may require similar staff analysis to ensure compliance with RLUIPA. Clubs are different from religious facilities. (Attachment D, pp. 5 -6.) Appellants contend that religious facilities can be treated differently than a club use because the definition of religious use encompasses more uses. Appellant's analysis, however, focuses on the theoretical differences between clubs and religious facilities, and not on the actual proposed use. Attachment A is the Application, which includes a description of the proposed use. Through further conversation with the Planning Department, the proposed use was further refined to eliminate the proposed signage. It does not include any of the accessory uses associated with a religious facility, such as a day care. Rather, the proposed use is simply for members to meet to share a common interest. Furthermore, the Application's type of use and intensity is similar to that a Club, Lodge, Private Hall. Both uses involve assembling groups of members together to facilitate common interests. The Determination is not supported by substantial evidence because there's no evidence that the applicant will comply with the City's parking and noise requirements, and the holding of funerals and weddings are not compatible with medical uses. (Attachment D, pp. 6 -8.) Parking is calculated during Site Plan and Architectural Review for the construction of a new commercial building. Parking is calculated based on the uses within the proposed building. Parcels with the Business Park (BP) district are subject to the permitted uses found in table 4.4 of the Implementing Zoning Ordinance. When a use is permitted, parking is not calculated. A club, lodge or private meeting is a permitted use in Business Park zones and does not require parking calculations. The City granted approval of the site plan for the commercial building in which the proposed use will be located. Thus, parking for the Application has been considered, and there are no separate parking requirements that the Application must satisfy. The Application is consistent with the City's noise standards, outlined in IZO § 21.040(A)(3). Based on the Application (Attachment A), there is no potential for public noise nuisances (e.g., impact wrench, internal combustion engine, saw, drill) outlined at IZO §21.040(A)(3) nor any foreseeable violation of the exterior noise exposure standards of IZO Table 21.1. In short, the IZO does not regulate noise levels internal to structures. °- 4 Page 4, Attachment 4 Funerals1z and weddings are considered accessory to the permitted primary uses. The IZO allows special event activities, such as weddings and funerals, without requiring any use permits so long as the special event satisfies all other applicable codes, such as building occupancy limits set by the California Fire Code, as modified locally, uniformly applied noise standards at IZO §21.040, and other permits as may be required. The maximum occupancy for this space is 182 people at any one time as set by the Petaluma Fire Department on November 12, 2014. The congregation will not exceed this number. STAFF ANALYSIS IZO §24.070(D) provides that the Planning Commission may consider any issue involving the matter that is the subject of the appeal, in addition to the specific grounds for the appeal. After doing so, the Commission may: "Affirm, affirm in part, or reverse the action, determination, or decision that is the subject of the appeal ". This means that the Planning Commission reviews the Director's Determination de novo. If the Planning Commission finds, based on substantial evidence in the record, that the proposed use is similar to a Club, as defined in the Implementing Zoning Ordinance, and /or finds that enforcement of the Conditional Use Permit requirement at Table 4.4 of the IZO would violate RLUIPA, staff recommends that the Planning Commission adopt the proposed resolution affirming the Director's determination, IZO § 3.030,1) authorizes the determination of when a proposed use is similar to another one, if the certain findings are made. First, there must be a finding that the Application is similar to an allowed use. Here, the Application is similar to a Club with respect to type and intensity of use because as discussed above, both uses involve assembling groups of members together to facilitate common interests and the hours of operation and parking are comparable. Second, the Application must be consistent with the applicable zone. Business Park District zone is intended for business and professional office, technology park clusters, research and development, light industrial operations, and visitor service establishm€n . The Application is consistent with the purposes of the Business Park District zone, because it serves as a visitor service establishment by serving as a venue in which people may assemble. Third, similar to the associated BP zoning, the Application must be consistent with the land use designation. The Business Park land use designation provides for professional offices, technology park clusters, and research and development. Therefore, the Application is consistent with the applicable General Plan designation because the land uses specified by the General Plan designation match the permitted uses called out in the Implementing Zoning Ordinance. Fourth, the Application must be consistent with any applicable specific plan. There is no applicable specific plan. 12 The Determination did not authorize a Mortuary, Funeral Home defined by the IZO as, "homes and parlors, where deceased are prepared for burial or cremation, funeral services may be conducted; " That-we type is not permitted in the Business Park zoning district, Page 5, Attachment 4 Fifth, there must be a finding that the Application is compatible with other uses permitted in the Business Park District such as office, medical services, and multiple recreation, education and public assembly uses. As discussed above, there is no distinction between the impacts of a Club and a Religious facility in this zoning district, and thus, there is compatibility with the other uses. Sixth, IZO § 3.030.D.5 requires a finding to determine that the use is not listed as allowed in another zone. Here, there is no zone that allows a religious facility by right, whereas a Club, is allowed by right in some zones. (IZO, Tables 4.14.4,) As stated above, staff interprets RLUIPA to require secular and religious assembly uses to be treated the same unless staff can identify a legitimate regulatory purpose for treating Religious facility on" less than equal terms. In this case, requiring a CUP for a religious assembly use, instead of allowing it by right, places religious assembly uses on less than equal terms, compared with secular - assembly uses. Finally, IZO §1.030.6 provides the authority to determine how to process the Application in a manner consistent with RLUIPA. IZO §1.030.B provides the standard in how to exercise discretion. It is on this authority that the Director typically relies to determine how an application should be processed, based on the proposed use, not who submits the application. In other words, it provides the authority to determine whether to process an application as a Club, or hotel, or other use, In exercising that discretion, the decision maker, in this case the Planning Commission, may determine that the Application submitted was one for a Club, if it can find: the project complies with applicable provisions of the Zoning Ordinance, the exercise of discretion will act to ensure compatibility, and the decision is consistent with the General Plan. As has been discussed throughout this staff report, there is evidence that the Application will comply with the applicable provisions of the Zoning Ordinance, namely noise and parking standards. It is compatible with surrounding uses given that its operation and hours are typically when the surrounding businesses are closed. Last, determining that the Application is one for a Club is consistent with the General Plan, because it is an allowed use within the land use designation and implementing zone of Business Park District. It is important to note that the issue of how religious facilities are treatetLthroughout the IZO will come before the Planning Commission at a later date. In 2013 -14, as a major City Goal, the City Council directed staff to update the IZO as it related to its treatment of religious facilities. Staff is currently working on those proposed modifications to the IZO, and will--bring those forward to the Planning Commission when they are ready for review and comment. The Planning Commission decision is, pursuant to IZO §24.070(B)(5), appealable to the City Council if an appeal is submitted in writing within fourteen (14) days to the City Clerk. ENVIRONMENTAL REVIEW The Director's determination is an interpretation of the Implementing Zoning Ordinance that, within the Business Park (BP Zone), the proposed use is a permitted use not requiring the prior issuance of any of the permits enumerated at Chapter 24 (Administrative Provisions). CEQA §21065 defines, in relevant part, a "project" as, "An activity that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies." Because the Director's determination does not constitute a lease, permit, license, certificate or other entitlement, there is no activity (i.e., "project ") subject to CEQA (See also 6 Page 6, Attachment 4 CEQA Guidelines § §I5002(d), 15060(c)). PUBLIC COMMENT Public notice of this appeal hearing was provided to all owners and occupants within 500 feet of the project site on April 16, 2015 and in the Argus- Courier on April 16, 2015, ATTACHMENTS Attachment A: Application Attachment B: Comment Letters Attachment C: Director's Determination Attachment D: Appeal Attachment E: Resolution 7 Page 7, Attachment 4 ATTACHMENT A Application For Conditional Use Permit Applicant: Village Baptist Church (Southern Baptist) Contact Person: Rev. Dr, Emmanuel 0. Akognon,'Pastor Email Address: Akognon @comcast:net Church Website; www,villagebaptisthome.org Contact Phone: (707)762 -6112 or (707)762 -6125 Contact Address: Village Baptist Church 1011 Allen Street, Petaluma, CA 94954 Property Address: 3835 Cypress Drive, Petaluma, CA 94954 The application for a conditional use permit applies to units #107 and #108, APN 005 -300 -007 and 005 -300 -008 Property size: 3,917 sq. ft. Project Description: Village Baptist Church is a worshipping community of believers in Jesus the Christ. We exist to reach people for Christ and develop them into active disciples, equipping them to serve as ministers in the church, our community, and around the world, and leading them to worship God in Spirit and truth. We are presently located in Marin City, California but we were a church in two locations until a few months ago. Our church community that met in a Dance Studio on McDowell was sold and we had to move back to one location in Marin. However, the majority of.our members are Page 8, Attachment 4 T from Petaluma, Vallejo, and Novato. So we decided to buy a building in Petaluma and make Petaluma our main home. We presently have a covenant membership of 65 people but have an average attendance in our worship services of 85 people or more. We have two full time employees and two part -time employees. We would like to be allowed to have up to 125 people in worship on Sunday and other special occasions. We hold the following services on -a weekly basis: Sunday School Sunday Morning Worship Wednesday Bible Study Wednesday Choir Rehearsal 8:00 AM to 10 :15 AM 11 :00 AM to 1:00 PM 6:30 PM to 9:00.PM' -- - — 9:15 PM to 10 :15 PM Youth Meetings on Fridays 7:00 PM to 9:30 PM Saturday Meetings (Men) once a month 10:00 AM to 12:00 PM Saturday Leadership Meetings once a month 10 :00 AM to Noon Approximately five times a year we hold Sunday afternoon services for special anniversaries from 3:00 PM to 7:00 PM Weekly Office Hours: Staff Office Hours 8 :00 AM to 4:00 PM (Monday, Tuesday, and Wednesday) The Pastor, Secretary and the Youth Pastor will have access-to the building for Staff office hours, We would also like to be approved for special events like funerals, weddings, and fundraisers. Nearly all of our classes are in the evenings except on Saturdays Page 9, Attachment 4 Village Baptist Church does not sell alcoholic beverages and does not hold any fundraising events where alcoholic beverages are sold or consumed, Village Baptist Church intends to use the exterior area of the building only for parking purposes, We will use temporary sandwich boards to display our church signs, And the signs will be removed each Sunday after our Sunday worship services, We will not display any signs except for Sundays and Wednesdays, Signs will also be displayed on special services. These are sample sandwich board signs; Tt�iYnk : Scr l?ur CCSxtrvtnf gpgtttor Itl�ir.•� til Village Baptist Church does not intend to make any changes to the existing exterior building. We intend to remove a small structure used as a cabinet in the back of the main auditorium in order to provide a little more space, This is a Page 10, Attachment 4 itvac,t e � _ (}0 p.I Tt�iYnk : Scr l?ur CCSxtrvtnf gpgtttor Itl�ir.•� til Village Baptist Church does not intend to make any changes to the existing exterior building. We intend to remove a small structure used as a cabinet in the back of the main auditorium in order to provide a little more space, This is a Page 10, Attachment 4 minor alteration to the existing interior building, Structure to be removed is labeled "R" below: We do not anticipate any elements that could affect the neighborhood and environment, The building was previously used as a church and we are not aware of when the previous tenant ceased the use of the unit, PARKING: There are 144 parking spaces at the 3835 Cypress building; Village Baptist Church is assigned 11 parking spaces during weekdays, The breakdown is 6 parking spaces for unit # #108 and 5 Parking spaces for unit #107, There are, however, no other business-es'-opened on Page 11, Attachment 4 Sunday. We will have at least 100 parking spaces avalfable to us on the weekends. Pictures of some of the parking spaces are below; Page 12, Attachment 4 Cr't (� `� �rluma, .Fire .department r I1 English Street - - Petaluma; California 94952 z$�a Fire Prevention Bureau Tolcphone: (707) 778 -4389 / Facsimile,: (707) 776 -3642 I+ RE 1NSP'ICT -N /'14A' ZAZDOUS MA'CpA1 1-AL / S _ N OTIC E Date 1 trncitity \nme SitaAddress C�wnorlOperntot � _ - 1,'}tIv flnspectioq Inspe ion Cogs lidat C_I Rrndinc n Rc- inspcctionh allow -np iJ Contbined Routine inspection RPA I1)t!^ _... Intcgnrtrd trespadun t � El CoNsi,NT TO IN5PRC *l' t VANTKD B Y (Naury /Tliiv): %J0'lfi1(s? 'l�r'l hrspectien may involve obtaining photographs, review wid copying of records, n:ui detemiinntion of coutplinnca Wmtt handling NOTICE OF VIOLAT>ON /SUMNIARY Or VIOLATION --- CORRECTION REQUIRED ORDRR TO COMPLY: ordinances, you arc lie�:el� iitspcetiss>n'tudl'i e ca fductot you j iblo to alt f pc7ltiolp f:L)_bring your facility into compliance with applicable local, state, and/or National Fire Codes and �rhr'I to correct Iho above noted Plrc and/or Safety 1.1azslyds and /s�[, c>bttrin Piro Permits required. A re- on or aftor _ _ _ _ Fsriltirc to con1ply with the forugoinR order tarty rcndyt pvldod b�, Iaw for such violations. PETALUMA 111101. DI3PARTNIENT I I English Street Pclaluma CA 94952 (707) 7784389 SI?COND 13171-INSPECTION DATHI: A'1 URI Initials R PiZI:;SI;NTAITVC; SIGNA`1'U GIs Initials 2nd 1nspcItion ' Chcok npproprhrte box: 2nd Inspection C.] MANAGER M 13UII,DING RrPRBSIiN'rATNI? rM OWNER M OTHER _------ ____ -- UAZARDOUS WASTE GEIff'l2ATOR MINOR VIOLATIONS — Roturn to compliance pursuant to f•Ioalth d'c S1111ety Code Section 25187,8(b), T certify that this facility has complied with this notice to comply, IW7PRIsSCsNTATIVV SIGNATURE DATE White: To Reprowitativo 'Yellow: Inspeelion Ofneor /Street File Page 14, Attachment 4 ('S)lrirr. } *rcveniinnUronnsltriro Imp HvMit NoOcc.0909.doo) MCI, 96 fM2 1ZR nh do A U I,T L 51 1, A, 4� TV M p- r dY7 i -�{ � ijr 14t," u v 8j � ii`} �U © }� � ' k� ���� r{ � b cc c E -C CL S tl o Q. V w m� ono C— � a W . � d Zt rO _ V o� ag h N o 48 N M Q N N N �s O � 62 tt►J s r 2. M srr , 0 0 N `.° a f(1! yy O © A N � s ' o q w�n p N rcrr A x N Q O s►rs o� , oQ � r �O 0 0 a A 1 � .(6'M M31A 3Nld � ► PLPf N r3 ter! �.1e4P+'if N �., ,• r it s Tr! M .+avasr s J o�My ry� �d ,` o o� fi 0 gill r 9 At hme t -34 MARTIN R. STEiGNER, DDS , RAYMOND A. RAMOS, DDS DIPLOMATS. AMERICAN BOARD OF DIPLOMATE, AMERICAN BOARD OF PEDIATRIC DENTISTRY PEDIATRIC DENTISTRY ATTACHMENT B PEDIATRIC DENTISTRY City of Petaluma Community Development Department planning Division 11 English St. Petaluma, CA 94952 RE: Village Baptist Church, File No. PLUP -14 -0007 Dear Planning Division, I write this note to discourage approval of Village Baptist Church for a Conditional Use Permit at the address 3835 Cypress Drive. Church use in the building zoned for various professional uses Including accounting, medicine, dentistry, etc. Is inappropriate. The number of people using the church alone is not in the best interest of the owners who use the facility, With Sunday services, weddings, funerals, and activities during the week the owners will need to deal with increased wear and tear on the building, and parking Inadequacy. Our parking is becoming a problem presently without the church presence. I am also concerned with the need for increased security. In the past we had a rash'of theft and damage that occurred during the presence of the previous church tenants. I understand the violations of our building may have nothing to do with the previous church tenants; however it was more than once owners came across Individuals wondering upstairs and in areas not Involving the church on weekends and evenings. Please allow the Baptist Church to pursue a more appropriate facility than our building at 3835 Cypress. Again, I ask you to avoid approving the Village Baptist Church for a Conditions) Use Permit at this address. • . Slncerelyyours, Martin R. Steigner, DDS 3835 CYPRESS DRIVE, SUITE 210 o PETALUMA, CA 94954 o 707- 763 -1548 FAX 707 -763 -6942. _ Y Page 18, Attachment 4 fJ Hill, Ellen From: MB <mib7171 @yahoo.com> Sent: Tuesday, January 20, 201512:23 PM To: Hill, Ellen; MB Bozuk; Angela Haas; Hana's Comcast Subject: 3835 Cypress Dr. HI Ellen we had a short discussion this morning about the notice that I received on 1/18/15 In regard to the conditional use permit for a church to locate at 3835 Cypress Dr. I own a surgical suite in the building and have a surgery center as part of my office space. I purchased the space in 2008 as medical office space, We see patients in clinic daily at the office and have some special clinics saturday _._.. am, few times per year. I am understanding that a baptist church is requesting a use permit In the building,, I-am objecting on multiple levels to that type of use of both the space and the building. The building was originally marketed by the builder as medical and professional space. That's why I made the Investment in the office. I was under the impression that the building was going to continue to keep their professionaltmedical space standards, - - Currently without the church,the building is starting to experience a strain on the parking spaces. I would estimate the parking lot to be 90% full during work hours, with handicap parking at a premium. My elderly patients often have to walk from the distant part of the parking lot, and I actually have 17 spaces deeded to my suite. A church would' certainly overwhelm the parking situation. As much as I was told that there would be limited use during the week, I very much doubt that the church will limit their worshipers to some kind of set weekend hours. Further there is no contingency for the situation when the parking lot becomes full and postoperative ( often wheelchair bound) patients are not able to get parking close to the building. Most of the suites in the building are running on two first and two second floor bathrooms. Only the medical suites have internal bathrooms. The traffic and the wear on the bathrooms has be high, and toward the week the building often smells. It has always been amazing to see all the different suites, their employees and visitors to use one lobby bathroom. I don`t believe that a church congregation will benefit the bathroom situation. Due to my noise sensitive work, the expected traffic will make it difficult, if not Impossible. We had a situation that dogs were brought in to other suites, and the animals were heard in my surgery center The owners have agreed to a no pet policy to address this Issue. I am fairly sure that a baptist congregation, with weddings and funerals and the traffic associated with it, will, likely strain the building and the noise levels will go way up. I have noticed that you are not planning a separate entry for the church, meaning the main entry will be used. Every time the door open and close at the entry I can hear the thump In my suite, I think that placing a high traffic business such as a church Is not a good Idea for the building, We have had multiple break -ins into the offices over weekends and resolved the issue by locking the building after hours and on weekends. That has substantially improved the security condition in the building. Certainly anybody after hours or on weekends has to be an owner or owners designe, By opening the building for the weekend we will encourage crime in the building, Since I have medical gases, anesthesia medications, and narcotics stored in my center, this makes my suite a target for break -ins. As you-noted I am not in favor of a church moving to the building, Feel free to contact me directly to discuss if needed, thank you Michael Bozuk MD surgeon Page 19, Attachment 4 Hill, Ellen From: mjroperdds@aol.com Sent: Sunday, January 25, 201510 :14 PM To: Hill, Ellen Subject: Village Baptist Church To Whom it May Concern, I write regarding the proposed church at 3835 Cypress Drive, Suites 107 and 108, 1 am concerned about the hours of operation, the proposed number of people attending services and events and the number of parking spaces required by --- -the proposed facility -The building is now occupied by professional offices and light medical dental /dental as well as _ school for children with Cerebral Palsy. All of these businesses operate on a similar work schedule and hours. The proposed church will hold services on the weekend and workshops in the evenings and weekends when the building Is currently closed. This will increase security, concerns for the existing owners as well as Increasing wear and tear on the building outside of Its normal scope of use. — - In addition; while there are no reserved parking spaces, there are deeded spaces for each unit to comply with the'current parking regulations of the City of Petaluma. I have already negotiated and paid for deeded spaces and will not cede any rights to them,. The current owner of the units has agreed in writing in my sales agreement not to do anything that Interferes with the operations of my business which specifically includes use that jeopardizes the amount of parking ... spaces required by law for my business to operate. I am also concerned that after some time has passed the the church _will begin to operate outside of their proposed hours of operation and, participants and-have a severe and negative impact on-the•existing•oftices7 -- While i respect the work they are involved in I believe they would be better suited to a free standing building or a building with tenants operating similar hours with similar Interests. Sincerely, Mark J Roper 3835 Cypress Drive Suite 203 Petaluma CA 94954 Page 20, Attachment 4 Rick R. Torkelson, CPA Lad A. moths, CPA, MS Tax, CR Jill G. laird, CPA David H. Storum, CPA CERTIFIED PUBLIC ACCOUNTANTS January 26, 2015 Ellen Hill -Assistant Planner _ ..._. .Via email: ehill @ei.petaluma.ca.us Use permit for the Village Baptist Church File #PLUP» 14 -0007 To The Petaluma Planning Commission: I am writing to express my protest to the issuance of a use permit for the " Village Baptist Church. We are a CPA firm occupying Suites 109 & 110 and would be the immediate next door neighbors to the church. Otifbours now. are 9am -5pm MondtLy through Saturday, although we and our employees frequently " work on Sunday's as well depending on the work load. I know you have objections from my fellow owners of these suites and I will try to be brief and not unnecessarily redundant. My objections are on many levels, but my .primary objectives are parking issues, bathroom issues, noise levels, and safety and security to the building. Parking: Parking has been allocated by square footage of the space owned. Their suites 107 and 108 have 1 I spaces allocated, My information from the building manager (Angela Haas) indicates that the Valley Baptist wants to change the permit for gatherings 4 days a week for up to 125 people. It seems pretty obvious to me that 11 parking spaces won't put a dent in the 50 vehicles — not counting their staff vehicles that would require parking. I can't fathom how this would not encroach on all the other owners of this building location. 13athrooms: Downstairs we have one men's and one women's bathroom, Each with 4 toilets. With over 200 people permitted downstairs, the congestion in the bathrooms (not to mention the mess) is unimaginable to me — particularly with the proposed `youth groups', 3835 Cypress Drive, Suite 110 Petaluma, California 94954.6966 707.795 -2691 Fax 707. 795.2799 Page 21, Attachment 4 P) Noise Levels: I have to hope and believe the typical Sunday 'sermons would not be objectionable, but Choir groups ?, Youth groups ?, Weddings? Gathering hungry?, 'special events with vendors'? A school that no longer occupies this building had many youths and we experienced excessive noise, garbage, running around the front of the building and general activity not conducive for the professional building that we have all invested in. Safety: The assembly hall we are discussing is 1,640 square feet per our building manager. Is it possible to cram 125 people in this small a space? Certainly not sitting with aisles for orderly leaving the building — and in a, growing congregation, we all know this number will be stretched. Security: The last occupant in that space was also a small church and " when _ they were here, there was damage to the security locking system, common area items were 'missing' over the weekends, more than one office was broken into including my own. We were all happy to see the church (a rental tenant) leave the building. What is the permit process for if not to protect the rights of those -around the applicant? You should have nearly unanimous "NO's" from all of us in the building. If you have any questions, please don't hesitate to contact me. Sincerely, _ .. r_.. Rick R. Torkelson - Torkelson & Associates, LLP Certified Public Accountants Page 22, Attachment 4 fir. Hill, Ellen From: Chadbourn Hawley <chawley @comprinox,com> Sent: Tuesday, January 20, 2015 10 :34 AM To: Hill, Ellen .Subject: Conditional use permit - Valley Baptist Church at 3835 Cypress Drive Dear Ms Hill Please accept this email in Ileu of a letter as 1 am out of town on business and understand any objections to the conditional use permit for Valley Baptist Church at 3835 Cypress Drive must be submitted by today. As an owner of a business condo in the building (Unit#207), I am ver concerned about the possible degradation of the _ property and the potential for theft and vandalism. The church proposes to operate on weekends when the normal tenants (the rest of the building owner /occupants) are not there. They propose to hold meetings for 100+ people. They make no mention of security. From past experience of having a church operate In the building on weekends we know that the doors are left open and there is no monitoring of who goes in or out of the building. - - The bulitling had suffered from theft and vandalism in the past. We have gone to some lengths to ensure that the doors 'are securely locked on weekends and evenings, which are precisely the times the church proposes to operate, In addition, the size of the congregation will put pressure on the Infrastructure (bathrooms, rugs) which already have significant pressure from existing clients, -� I don't think I am alone in this concern, but fear other owner /occupiers will not have time to express their' reservations /concerns, v Regards _ Chadbourn Hawley . • owner - Unit # 207 Sent from my (Phone i Page 23, Attachment 4 Stephens, McCarthy, Lancaster LLC Representing Products for the Electric Utility Industry 3835 Cypress Drive, Suite 206 Petaluma, CA 94954 Telephone (707) 769 -2670 Fax (707) 769.2675 January 23, 2015 City of Petaluma - Planning Division RE: Village Baptist Church, 3835 Cypress Drive Minor Conditional Use Permit, File No. PLUP- 14 -0007 '•- McCarthy, Lancaster LLC (owner and occupant of 3835 Cypress Drive, Suite 206) -� strongly obiects to the Conditional Use Permit under consideration for 3835 Cypress Drive, Suites 107 and 108, as we believe that the expanded usage has the potential to have significant negative operating and economic impacts on our business. We are concerned with the negative effect on our daily operations which would be impacted by security concerns, noise, parking, accessibilitydiability and common area wear and tear that would come with the dramatic increase in the riumber of persons allowed under the CUP under consideration. We are also extremely concerned that the negative effects on our daily operations have the potential to adversely affect the long term economic investment that we have made in this space, by -' potentially to decreasing its value to any future purchaser. In addition, we along with many of the other owner occupants of the building have now become very concerned with the impact of the original CPU which allowed increased usage beyond the norms fortho-building and encouraged the marketing of these units for a usage even more inconsistent and inappropriate for •- — the building, Our speci$'c concerns are: Security: Our building is open 7:00 AM -- 7;00 PM Monday through Friday. We limit access ' •' ' ' ' into the building during the off hours and weekends for 'security reasons, both to the physical space and to any occupants working in those off hours. There are many owner /occupants of this building who work in the off hours, either seasonally or because they are small business owners whose work requirements are not tied to the clock. We are on the second floor and would be particularly susceptible anyone peeling off of a group in the building after hours. Events on evenings and weekends which would expose our office to new security risks, would require a re- assessment of the building's entire security provisions and could potentially involve modifications to second floor access to include new locking fire doors at the side entrances, design modification to the open staircase from the main lobby to the second floor, and perhaps actual security personnel. Any and all security enhancements should be paid by the entity requesting the CUP. Noise: The increased noise that could potentially come from the as needed usage during regular business hours (funerals were mentioned as an example) is completely 1p%0PrIce priate for the existing business and medical usage in the building. We are sitting doing work that Page 24, Attachment 4 Petaluma Planning Division RE: Village Baptist Church, 3835 Cypress Drive Minor Conditional Use Permit, File No. PLUP- 14 -0007, page 2 requires focus and concentration and can only assume that an even higher level of focus and concentration is required for the medical and dental procedures being performed in the building! Parking: It appears that the church plans to hold some services during the week which could limit our ability to find parking, We have a deeded assignment of four parking spaces. These four parking spaces are available to our office suite seven days a week; twenty-four hours a day as also noted in our CC &R's. Each suite, has a specific maximum number of allocated parking spaces for their use. The requested usage in the CPU would significantly;exceed their parking space allotment for the two suites in question. A couple of our employees liave specific hours and typically park their cars early and leave them in spots. The remainder are outside salesmen who come into the office as needed during regular and off hours and count on being able to find a place to park when they have a limited amount of time to achieve whatever task they have come into the office to accomplish. I can only imagine that the medical and dental offices would like their patients to be able to find parking in a timely manner. Our parking lot is not particularly large, but certainly adequate for the existing usage without having to resort to designated, assigned parking - could you even imagine the owners meeting where we argue over who gets what spot on a permanent basis? Parking on the busy street should not have to be an option for building occupants with deeded spots, espdcially as we are across the street from UPS and very near FED -EX and many other large, busy facilities. Accessibility: Out building CCRs state you cannot extend into the common area. The Common area is only for ingress and egress (section 2,3 A). There can be no conducting of a business in the halls or waiting area. In the case of the large functions (i.e, increased numbers of people) that this CPU is being asked to accommodate, have you ever seen people disburse rapidly after one of these types of events? Other people wanting to enter the building, either during regular — --- business hours during funerals or during the off hours, will potentially to brave_ the parking and then the crowd to make it into the building to conduct.their business. _ ...... _...... . . Liability: The increased usage requested in the CPU would seem to bring the potential of increased liability with the number of persons on site. A completely differeynt allocation of insurance coverage and costs would need to be determined that would not take into account pure square footage as currently done, but comparable usage. In addition, we assume that the Village Baptist Church will have children at their services. Our building has a steep set of stairs, any -permit granted to the Village Baptist Church should require adult supervision of all Children while they are in the common areas. Common Area Inadequacy, and Wear and Tear: We are very concerned that the infrastructure in our building is inadequate for the vastly increased usage requested in the CPU. The small spaces intended to accommodate the usage does not appear to be adequate for 85 plus people, What happens when more people show up than anticipated? The previous tenant grew in attendance and exceeded the allowed number per their CPU. If this CPU is granted over the objections of the majority of the current owners -- will we end up in the really awful position of standing outside and counting the number of people attending a wedding or funeral in order to file a complaint? How would the city compliance officer be able to come out and determine the extent of the misuse? We have two small bathrooms, one on each floor that would not be able Page 25, Attachment 4 Petaluma Planning Division RE: Village Baptist Church, 3835 Cypress Drive Minor Conditional Use Permit, File No. PLUP- 14 -0007, page 3 to handle a large crowd, especially if security considerations make the second floor off limits. Will the existing sprinkler system in the building meet the requirements for this type use? Any upgrades would need to be paid for by the requester of the CPU. The increased usage requested in the CPU would seem to bring the potential of vastly increased wear and tear on the common areas, A completely different allocation of operating, maintenance, and capital improvement costs would need to be determined that would not take into account pure square footage as currently done, but comparable usage. We at Stephens, McCarthy, Lancaster LLC appreciate your careful coiiiid'eration of the concerns that we have expressed as well the ones expressed by the owners of the other office condominiums at 3835 Cypress Drive. All of the owners were quite aback by this recent request, initially by its increased scope, but also upon the realization that the granting of the previous CPU had opened the door to this kind of usage request, I believe that I `speiak for many of the owners who were not happy about the prior CPU granted to a tenant,but did not object strongly for several reasons. At the time, we commiserated with the Owner (who is now the Seller) of the units in question because the economic conditions in the county, and the country as a whole, made the units very hard to sell and renting at least provided some income on the units. We also now see that the duration of the prior CPU was mischaracterized. It seemed that many of us were okay with off hours and increased use because we were told the tenant was temporary and that they had purchased property to build a permanent site. Now we see the permit was open ended, and its granting has encouraged marketing, and now a sale, for a use that far exceeds the numbers appropriate for this building. In our ignorance of the planning process, permitting, etc. we allowed something to occur that we find was decidedly not in our interest, and I believe that we will be working in the future to see what remedies are available to revoke the existing CPU, Stephens, McCarthy Lancaster LLC rr • • • • Chris Stephens , Kevin McCarthy Glenn Lancaster Page 26, Attachment 4 Petaluma Planning Commission Re: Village Baptist Church occupying suites 107/108 at 3835 Cypress Drive, Petaluma California 94954 Conditional Use Permit, Flle #: PLUP -14 -0007 To The Petaluma Planning Commission: We strongly object to the proposed CUP amendment proposed by Village Baptist Church. We are 2-of the owner /occupants at 3835 Cypress Dr,-Suites 209, -210,- Petaluma, CA, �, -- - 94954. -We purchased the suite. with my business partner; Dr; Martin Steigner and his wife, Mrs. Dea Steigner in 2005. We use our suite mainly Monday - Friday, but in 2015, we plah to expand our hours to serve our patients on Saturdays. We are pediatric __•,.�,T _, . dentists and plan to offer Saturday hours which are often easier fiiYchildren as they don't have to miss school. We are also present in the building for any dental emergency _ which can.arise•at any hour, 24 hours a day,-7 days a week.,_ We strongly object to the proposed CUP amendment proposed by Village Baptist Church for the following reasons: — 1. Parking: (From the letter of, Mike Haas, CPA): In the case of Suites 107 and 108 they only have 11 allocated parking spaces. This Is deeded to the suites and runs with the property. Per the Declaration of Covenants and Restrictions for 3835 Cypress Drive _ Business Center, A Condominium Project., Section 2.2 D reads: `In no event shall an Owner or other occupant of a unit make use of more than the allocated Parking Spaces per Unit as Specified on ExhlbitA, Parking Allocations' Each suite In the building has a deeded right to use their parking allocation,?4Q' per the CCRs. The CCRs state that no business can use more than their allocation. This holds true for any business In the building. If they operate using more than their allocation this Is a violation of the CCRs. This restriction is effective 7 days a week, 24 hours a day. All the owners purchased the right to their allocation when they purchased their suites. Our CCRs do not allow one sulte to give their allocation to another or waive their right to their spaces on certain days of the week. - Furthermore, our concerns include: The dedicated parking allotment for these suites is 11 parking spaces. All of the existing businesses have parking allotments in this range. The CUP amendment request by Village Baptist Church request an occupancy of 125 people. With only 11 allotted parking spots, where will VBC visitors-parrk? Who will monitor that VBC visitors do not park in non -VBC spots (so that clients /patients of existing businesses continue to have access to parking)? Is it safe to have this amount of cars parking on the streets around Cypress Dr. and Pine View Way when there is already limited street parking? Would this many cars on the street create a traffic hazard? Would it effect other local business? The CUP amendment request lists weddings, funerals, seminars, services, etc. These type of special events usually Include outside vendors who arrive with trucks. Where will these trucks be parked? There are not enough handicap parking spots for this additional burden. Our Page 27, Attachment 4 - 1, / professional office provides services to children. This means that a parent must drive them to the appointment and often brings the younger siblings with In their arms or in strollers. We do not feel that it is safe to put our,patients at risk to have to park and walk from some other location than our dedicated parking spots, 2, The requested occupancy of 125 surpasses the occupancy allowed by the CCR's and the Fire Code. From the letter from Mike Haas, CPA based on the parking alottment: In the case of the church the maximum occupancy per the City and our CCR's Is 44. The proposed 125 far exceeds this limit. The congregation space Is 1274 sq ft, and depending upon the structures (stages) In the room, the usable space can be less. — -- Depending -upon whether the congregation Is seated-or-alt are-standing the sq ft/ can vary from. 7 sq ft (standing) to-16-sq ft (seated).-t -So the possible maximum capacity runs from 180 to less than 80.., all depending upon structures In the room and provision for seating. Upon viewing the photo gallery from the VBC's ._._ website, it appears.that members are seated during service. This would allow for less than 80 occupants.: In addition,.lecterns,.stages, etc:; would further. decrease that number. 3. Noise: Suites 107/108 reside next to an accounting. office, adross from a general dentist, below an orthodontist and pediatric dentist. All of these offices are quiet, professional offices with less than 20 people on average in each space. At times, even some sound can be heard between the offices. There is a medical suite off of the common area on the 2nd floor which could hear the sounds of the previous church even though it is located down the hallway and on a different level. An occupancy of 125 people would be very loud. Events such as seminars, weddings and funerals would create considerable noise. Does the church play music, have singing, etc. that would also contribute to the noise levels? There is a rap group listed In articles about the church. Mike Haas, CPA also cited the differential between normal office noise as 48 -50 decibels and the average worship noise for a group of 80 (much smaller than 125) as 78 -88 decibels with worship music greater than 100 decibels, twice that of traditional office noise. (Please reference hugs ww-w.villaaebaptisthome.om /media Reaching God's Goal In 2015 at 35:15 as an example of how the speaker becomes louder and louder. A decibel meter of a few second sampling of this sermon rated at over 80 decibels). This level of noise would easily be heard upstairs in our suite, It would be very distracting to the children who are receiving their dental procedures and the.team trying to focus on their work. 4. Security: We completely agree with the comments from StephanALMcCarthy Lancaster, LLC who stated in their letter: Our building is open 7 :00 AM - 7 :00 PM Monday through Friday. We limit access Into the building during the off hours and weekends for security reasons, both to the physical space and to any occupants working In those off hours, There are many owner /occupants of tfils- building who work in the off hours, either seasonally or because they are small business owners whose work requirements are not tied to the clock. We are on the second floor and would be particularly susceptible anyone peeling off of a group In the bullding after hours. Events on evenings and weekends which would expose our office to new security risks, would require a re- assessment of the building's entire security Page 28, Attachment 4 provisions and could potentially involve modifications to second" loon access to Include new locking fire doors at the side entrances, design'modlflcation to the open staircase from the main lobby to the second floor, and perhaps actual security personnel. Any and all security enhancements should be paid by the entity requesting the CUP. Furthermore, our concerns also include that: Our suite is also located on the second floor which exposes It to further risks from visitors away from the church. We are also present in the office at any given moment for emergency dental procedures in additional to our regular business hours. Unfortunately, when the last church occupied the building, there was damage to common areas, damage to the keycard security locking system, common area items stolen, and items stolen — from offices. This medical professional building Is a high security risk due to many computers, technology, medical devices, medications, medical gases, patient charts, and more. _.5. Accessibility: We also agree with.Stephens, McCarthy Lancaster,,LLC,who stated in their letter: Our building CCRs state you cannot extend Into the common area. The Common area Is only for Ingress and egress (section 2.3 A). There can be no conducting of a business In the halls or waiting area. Furthermore, our concerns Include: Historically, people tend to social after church services, meetings, weddings, funerals, seminars, etc. There are specific children's services for children 12 and ..__._._.under.held during_Sunday. services Where.will.these children go? How.can VCB ensure that the children are not in the common area and don't'pobe a liability risk to the current owners? Suites 106/107 do NOT have a private entrance. There is no way to access these suites without going THROUGH the common-areas that are shared with the'medical and professional offices. The owners of the existing suites purchased the suites in a medical - professional building. We did not anticipate that funerals would be in this building. It is unacceptable to have large groups of people, processions and caskets in the common areas of the building where our pediatric patients are coming for their dental visits. 6. Existing CUP allowing a church in the space: When the previous church requested a CUP to occupy the space, the existing owners were told that it was a temporary usage while the church built a new location. The majority of the owners did not fight the CUP because it was a temporary situation. We were not informed that the CUP would remain with the suite and could become a permanent usage for the suites. The previous church requested Sunday usage for approximately 80 people for 2 hours and evenings approximately 3 days a week for up to 15 people. This Is a dramatic difference to a permanent location for Village Baptist which is requesting an occupancy of up to 125 people with usage every day of the week. A church, or any business of this size, is incompatible with the OCR's of the the building and existing Fire Code for the City of Petaluma. (Please refer to the letter from Mike Haas, CPA for further details). 7. Wear and tear: With weekly meetings, events, seminars, weddings, funerals, and services almost every day of the week in addition to regular business hours, VCB will generate a significantly greater amount of wear and tear on the bullding than the other owners. How does VBC plan to compensate for this wear and tear? We also agree with Stephens, McCarthy Lancaster, LLC who stated in their letter: We are very Page 29, Attachment 4 concerned that the Infrastructure in our building Is Inadequate for the vastly Increased usage requested in the CUP. The small spaces Intended to accommodate the usage does not appear to be adequate for - 85-125 -plus people. What happens when more people show up than anticipated? (How can the church turn away' mourners at a funeral?) The previous tenant grew In attendance and exceededathe allowed number per their CUP, (And as owners, we suffered damages td the common areas, doors, security, and theft). if this CUP Is granted over the objections of the majority of the current owners - will we end up In the really awful position of standing outside and counting the number of people attending a wedding or funeral In order to file a complaint? How would the city compliance officer be able to come out and determine - - the extent of the•misuse ?- We have two small bathrooms; -one on each floor that - - -- would not be able to handle a large crowd; especially If security considerations make the second floor off limits. WNI the existing sprinkler system In the building meet the requirements for this type use? Any upgrades would need to be paid for by the requester of the CUP. The Increased usage. requested In the CUP. would seem to -• %.: bring the potential of vastly Increased wear and tear on the common areas. A completely different allocation of operating, maintenance, and capital Improvement costs would need to be determined that would not take Into account pure square footage as currently done; but comparable usage, -- 8: We also agree with Stephens, McCartiiyLancaster, LLC who•stated:ln their letter: Liability: The Increased usage requested In the CUP would seem to bring the potential of Increased liability with the,number of persons on site. A completely - different allocation of Insurance coverage-and costs would need to- be.determined that would not take Into account pure square footage as currently, done, but comparable usage. Furthermore, with the types of events that the church is requesting, outside vendors will also bring Increased liability to the building, v 9. Per the Planning Department we were told the Village Baptist Church would like to operate as follows: Sundays: B -1 0:15 am - children's group (no size rioted), 11.1 worship- size to be Increased to 125 people - current membership is 85 , 5 x's per year'trom 3-7 pm they would like to have additional large gatherings- up•to 125 people •• . __.... Wednesdays: Q;,' -9 pm Bible Study (no size noted), 9:15 -10:15 nm Choir (no size noted) . ' ; 4 Fridays: 7 -9 :30- Youth Group (no size noted] Saturdays: 10 -12 Men's Group- (no size noted)e Illme per month a large conference -up to 125 people, As Needed- large group gatherings up to 125 -for weddings, funerals, etc... M -T W from 8 -4 there will be Church Staff in the offices However, in researching the Village Baptist Church activities at their current Marin City location on their website, Facebook page, and published articles, the church holds the following functions: What are the exact details (time, duration, frequency) and numbers of visitors attending these events for the following? Will all of these .programs be Implemented through the Petaluma location? If yes, they increape the above risks to existing owners and our businesses. Page 30, Attachment 4 3 A. Sunday worship, Sunday school- children, Sunday school - adult, 20120 group, Cell group, Men's Group, Corporate Prayer, Gathering Hungry, Seminars, Weddings, Funerals, special events with vendors, etc. B. A food pantry for the needy, a Headstart program, tutoring program, and South Marin Bible Institute for Theological Studies. 10.Funerals/Weddings: The original church CUP did not mention funerals or weddings. It is not appropriate to have funerals /weddings In a medical / professidnal building. How can VBC guarantee that less than 125 mourners /attbndees_will attend services? Will the deceased /caskets be brought into the building? When will funerals /weddings ---- be held? Are receptions held in the church after services? Where will outside vendors park? How will they access the suite? What type of processional would be expected? 11.The VCB Facebook page lists a Women's Seminar in the Cypress location 2/21/15 from 8 -6pm for 100 people (not allowed under the current CUP guidelines or Fire Code). What type of activities will occur at this seminar? How often are seminars held? What type of seminars and what type of activities? 12.The article also states that VCB hosts gatherings, celebrations, and has a kitchen. What gatherings and celebrations are planned for Petaluma? Are wedding and funeral. receptions.held_In the church ?. Do.they plan on-having a kitchen ?. (Our existing CCR, section 7.1 A10- No food Service or food preparation maybe permlaed within a Unil.) 13. The VCB website and Facebook'page refers to evangelism as a key component to spreading the word of the bible and growing the church. What will prevent VCB from practicing evangelism on our patients and clients in the common area? VCB, appears to have a growing membership as cited in the articles, especially in younger adults who will marry and expand their families and thus the church memi ership. In addition, they have very successful evangelism programs'and are growing. VCB is already seeking to expand the CUP from 80 to 125 persons. Mavis the plan for growth beyond 125 persons? 14.Will the be keeping their Marin City location? Is this an additional location or a replacement location? It is unfortunate that the seller had allowed this to go to escrow without releasing a copy of the CCR's to the Village Baptist Church. The existing owners do not see a church and medical- professional as a good neighbor partnership. The existing owners purchased their spaces knowing that this is a medical - professional building and to be with other like businesses. The businesses are all quiet businesses with a steady stream of just a few patients or clients per hour. Many of the businesses are medical facilities which provide medical and dental care to adults and children. Patients receive sedation and require a quiet environment with ease of parking for their caregiver. Several of the businesses work late or weekend hours as needed. The medical providers may need to be present for emergency care for their patients. We did not purchase these suites to be next to funerals, weddings, seminars, events, church services, etc. The current owners adhere to the existing CCR's of the building which protect the existing owners from damage to the building or common areas, theft, misuse of parking spaces, noise violations, fire Page 31, Attachment 4 r J: code /maximum capacity violations, etc. The request by VBC violates the CCR's repeatedly. We kindly agreed to the previous church on a temporary basis to help the church grow within the community as they built their new building. We would not have agreed to a permanent situation. That church did not host weddings, funerals, seminars, etc, They mainly met on Sunday for 2 hours with an occasional meeting during the week. As owners, we experienced damage, parking difficulties, theft and noise. Their CUP allowed for 80 people. VBC Is requesting an additional 45. How will the City of Petaluma Insure that the Fire Code, parking allotments, maximum occupancy, CCR's, safe street parking, safe traffic patterns, etc. occur if this CUP is granted? -- — For all of the above -questions and concerns,-we believe that allowing- the CUP as -requested will have a significant negative impact on our business-bath professionally and economically. We believe that parents will be unhappy with the parking and crowd situation and will choose to take their children to a different dentist. We believe that having a business of this.size and structure In the building with devalue the existing real ,.estate values of. the suites.. We are vehemently opposed to the CUP amendment and respectfully request that the City of Petaluma deny Village Baptist Church's request. ; .Sincerely"'.._. �.r . .... :.... :.. _ Dr, Raymond A. Ramos and Dr. Cheryl L. Willett-Ramos Pediatric Dentists 3835 Cypress Dr, Suites 209/210 (DBA 210) Petaluma, CA 94954 707- 763 -1548 ramosdds@sbcglobal.net CLWR@me.com . • . mill AIL IW niixRoTi7iLqi&,iii,.ii • : Il! 1{ { . MMINSIPIMMU. 1 1 11! { { { :�:!:! 111: • } Page 32, Attachment 4 �5 Hill, Ellen From: Willie McDevitt < willie @mcdevittconstruction,com> Sent: Friday, January 16, 20x512:25 PM To: Hill, Ellen Subject: 3835 Cypress Village Baptist Church Ms Hill As a property Owner at 3820 Cypress Drive, Unit 6,1 support the Village Baptist Church application. .Church uses in Oakmead, Par k are, beneficial in many,ways..sesides providing a needed venue, for worship, their use Is not on the same cycle as other businesses. This helps reduce peak hour traffic congestion compared to a 9 :00 to 5:00 business operating In the same space. Because I live and work In Petaluma there are many occasions when I'm in the area on- Sundays, The Church on S. McDowell txt ha -ss'very large services on Sundays and cause no noticeable traffic issues; "' Willie McDevitt McDevitt Construction Partners, Inc 3820 Cypress Drive Petaluma, CA 9495.4___ _.. Phone 707- 763.3000 Direct 707- 766 -1555 _. Fax . ' 707 - 778 -0386 .._.. Email wilile@mcdevittconatruction.com 1 Page 33, Attachment 4 Hill, Ellen From: Blair Kirk <bakirk@outlook.com> Sent: Sunday, January 25, 201510 :10 PM To: Hill, Ellen Subject: CUP amendment proposal I am writing to express my opposition to the CUP amendment proposal being brought by the Village Baptist Church, which plans to occupy space at 3835 Cypress Dr., Suites 107 & 108. — =My name is Blair Kirk and I am the owner of Suite 208 in the same building. -Based on the information - provided by the Village Baptist Church; attendance at their services will number approximately 125 persons, This will certainly exceed the allocated number of parking spaces assigned to suites 107 and 108, which currently stands at 11, and unfairly Infringe upon the parking avallabillty of the other Suite owners In the building. In addition, the maximum occupancy of these suites Is designated as 44 person_ s. Again, having a membership of 125 persons will exceed the occupancy restrictions as per the City of Petpluma... ,. Fi�lally;'the owner's of the other suites have no guarantee thbf'the membership of the Village Baptist Church will not Increase in number overtime, potentially placing the organization in violation of the amendments they are seeking now. For these reasons I ask that you do not approve the amendment to the existing CUP. Sincerely, Blair A. Kirk, DDS, MS 1 Page 34, Attachment 4 i i Hill, 51len From: akognon @comcast.net Sent: Thursday, March 19, 2015 8 :49 PM Yo: Akognon, zabadoo3; akognon, freda; Jonathan, Matthews; Bradley, Erin; Doumate, Gina Cc: Hill, Ellen Subject: Fwd: Contact Form Submission FYI From: "Blair Kirk, DDS" <bakirkt- outiook.com> To; emmanuel .villagebaptisthome.org Sent: Thursday, March 19, 2015 4 :31:07 PM Subject: Contact Form Submission i Submitted on Thursday, March 19, 2015 - 4 :31 pm Submitted by anonymous user: (173.228.108.94] Submitted values are: Name: Blair Kirk, DDS E -Mail: bakirk(Moutlook.com Message: Dear Dr. Akognon, My name is Blair Kirk and I am one of the suite owners at 3835 Cypress Dr. ( #208). 1 am writing to inform you that I have withdrawn all objection to having your congregation meet In our building. I have also removed my name from those associated with the attorney, Daniel Miller, Sincerely, Blair Kirk The results of this submission may be viewed at: http : / /www.villaaebaptisthome.org /node /110 /submission /25 1 Page 35, Attachment 4 •_ j w. ATTACHMENT C CITY OF PETA]LUMA POST OFFICE Box 61 PETALUXA, CA 94953 -0061 David r (February 18, 2015 - -� Cbris Albertson Emmanuel Akognon Teresa Barrett Mille Healy 1011 Allen Street Gabe Kearney Petaluma, CA 94954 Dave King Kathy Mllter c �r+ne—�aers RE: Conditional Use Permit for Village Baptist Church 3835 Cypress Drive PLUP -14 -9007 Dear Mr. Akgnon, The City of Petaluma has reviewed your application for an Administrative Conditional Use Permit to allow Village Baptist Church to operate in the existing building located at 3835 Cypress Drive Suites 107 and 108, within the Business Park (BP) zone, IZO Section 3,030,D allows the Director to determine that a proposed use is similar to and compatible with a listed use and may be allowed, Pursuant to Section 3,030,D, after detailed review, the Director has determined that a Conditional Use Permit is not required for the proposed use of a religious facility to locate in the desired location because it is similar to the use of a club, lodge, private meeting hall, which is a permitted use in the Business Park Zoning District: --4'he determination is based on the following findings; Cotnnutnity Development Department 1. The IZO defines a club, lodge, private meeting hall as permanent, 11 aglish sftet Petaluma, CA 94933 . - headquarters -type and meeting facilities for organizations operating on a membership basis for the promotion of the interests of the members, including Phone (707) 778 -4301 Fax (707) 778.4498 facilities for: business associations, civic, social, and fraternal organizations labor unions and similar organizations political organizations, professional membership organizations, and other membership organizations. Phone n 707) 778.4301 religious 2 The IZO defines a facili ty as a permanent facility operated by a Fox (707) 778 -4498 religious organization exclusively for worship, or the promotion of religious g.CM • addQcLporohu,ra.c�aus activities including accesso uses on the same site, Examples of these es � g rY P types of facilities include churches, mosques, synagogues, and temples. To Schedule Itupections Phone (707) 778.4479 3. The key distinction between religious facility and a club, lodge, private meeting hall as defined in the IZO is that the religious facility definition applies to organizations exercising religion while the club definition applies to PlanningDhdrion Phone (707) 778 -4470 organizations that' gather for non - religious purposes. For (707) 778 -4498 B-J4g@ paMhaurplanningp 4. The characteristics of and activities associated with a relig- ious facility are .� Y ctpataluma.ca.us similar to a club, lodge, or meeting hall in that both uses are comparable in the type and intensity of use. Club, lodge or private meeting halls and religious Page 36, Attachment 4 �i, facilities both gather groups of members together facilitate common interests. Furthermore, the type of use, hours of operation and parking are comparable to that of a club, lodge or private meeting hall. 5. The Business Park zoning district is intended for business and professional office, technology park clusters, research and development, light industr W- operations, and visitor service establishments. Additionally, club, lodge, or meeting hall is a permitted use in the BP zoning district and as outlined above, there is little lstinction between the operational characteristic of a religious facility and a club, lodge, or meeting hall. The proposed religious facility is consistent with the general purpose of the BP zone and is not anticipated to detract that intent. 6. The property at 3835 Cypress has a land use designation of Business Park. There is no applicable specific plan that applies to the property. Similar to the associated BP zoning, the Business Park land use designation provides for professional offices, technology park clusters, and research and development. Therefore, the proposed religious facility is consistent with the applicable General Plan designation. 7. The religious facility is compatible with other uses permitted in the BP zoning district such as office, medical services, and multiple recreation, education and public assembly uses because there is no distinction between the impacts of a club, lodge, private meeting hall and a religious facility in this zoning district, " 8. A club, lodge, or meeting hall is a permitted use in many of the city's zoning district; however, a religious facility is not a permitted use in any of the city's zoning districts. After conducting a review of the IZO, there is no stated compelling government interest that necessitates different treatment of the two types of organizations. - A determination of compatible use made by the Director may be appealed to the Planning. Commission in compliance with Section IZO 24.070.'A letter of appeal by the applicant or any other interested party must be filed within fourteen calendar days following the date of the Director's determination. If no appeal is made within that time, the decision shall be final. An appeal shall be addressed to the Planning Commission in writing and shall be filed with the City Clerk. The appeal shall state specifically the grounds for the appeal and the relief sought by the appellant. Said appeal shall be accompanied by the appeal fee as specified by Resolution 2010206 N.C.S. as adopted by the City Council. If you have any additional questions please do not hesitate to contact me at 707 - 778.4472 or ehiq@ci.petaluma.ca.us. Sincerely, ah/y, Ellen Hill Assistant Planner ill z Page 37, Attachment 4 I. ATTACHMENT D E2 MILLER STARR REGALIA March 2, 2015 ViA E -MAIL AND FEDERAL EXPRESS City of Petaluma Planning Commission c/o Claire Cooper, CMC, City Clerk Ellen Hill, Assistant Planner 11 English Street Petaluma, CA 94952 E -Mail: cityclerk @ci.petaluma.ca.us ehill@ci.petalume.ca.us RECEIVED MAR 03 2015 QIJY CLERK 1331 N. California Blvd. T 926 936 9400 Flfth Floor F 926 933 4126 Walnut Creek, CA 84698 www.msdeoal.com Sean R. Marclnlak Direct Dial: 926 841 3246 sean.ma rclnlak®msde0 al.com Re:. Appeal of February 18, 2015 Zoning Determination that Religious Facility Is Permitted by Riaht in Business Park Zone Dear Honorable Members of the Planning Commission: Miller Starr represents a consortium of condominium owners, consisting of doctors, dentists, and other practitioners, who have property interests at 3835 Cypress Drive (collectively, the "3835 Cypress Community").' The 3835 Cypress Community hereby appeals, pursuant to section 24.070 of the Petaluma Implementing Zoning Ordinance ( "IZO "), a zoning interpretation dated February 18, 2015-,-whereby the City's community development department determined that religious facilities are permitted in a Business Park zone (the "Determination "). For your convenience, we have attached a true and correct copy of the Determination as Exhibit A. We understand that the City has Issued the Determination In response to an application by the Village Baptist Church to operate a religious facility within units 107 and 108 at 3835 Cypress Drive. The Determination, which purports to be an interpretation of local &Whance under section 3.030(D) of the IZO, is- not what it appears to be, In truth, it is a de facto zoning text amendment. This conclusion finds support in simple facts: (1) the City's zoning ordinance currently indicates, without ambiguity, that religious uses are conditionally permitted uses in a Business Park zone; and (2) the Determination ' This group consists of Cypress 204 Partners; Paula Gardner, DDS; Blair Kirk, DDS; Ray Ramos, DDS; Cheryl Willett, DDS; SML Property Management, LLC; Norman Pang, MD; Torkelson and Associates, LLP, CPAs; 3835 Cypress Drive, #207, LLC; Michael Bozuk, MD; and Mark Roper, DDS. offices. Walnut Creek / Son Francisco / Newport Beach SRIV1099919tf9464.2 Page 38, Attachment 4 i City of Petaluma Planning Commission March 2, 2015 Page 2 changes this clear directive by treating religious uses as permitted by right in the same zone, The Determination is illegal, violating the City's own ordinances, the state Planning and Zoning Law, the California Environmental Quality Act ( "CEQA"), and constitutional due process guarantees, -The 3835 Cypress Community respectfully requests that the Planning Commission; (1) void the Determination, and. (2) Insist that all future religious facilities, including the Village Baptist Church, obtain a conditional use permlt2 should they seek to operate in a Business Park zone. It is unclear what motivated the community development department to relax requirements for a religious facility in a Business Park zone, The Determination is based on the premise that a religious facility, in terms of operation, is indistinguishable from a club, lodging, and private meeting hall, the latter of which are permitted by right in a Business Park zone. But, as explained below, the IZO explicitly defines the two uses differently. A religious facility is defined to include a broader array of uses, occurring at greater intensities, than-would include a club, lodge, or private meeting hall, The legal definitions in the City's zoning ordinance reflect practical realities. If affirmed, the Determination would allow, without any restrictions, potentially crowded and noisy uses next to medical and dental offices that serve sensitive populations, Essentially, the City would be permitting — without retaining any right to control — weddings and funerals and other intense uses in the immediate proximity of medical patients and other persons with disabilities. These are people who often are III and dealing with significant sensory Issues and physical pain. For Instance, one member of the Cypress Community operates a surgical center. Meanwhile, the United Cerebral Palsy of the North Bay operates programs at the site for school -aged children with autism and other disabilities. To the extent the community development department believes thalthe Determination was necessary to satisfy the requirements of the Religious Land Use and Institutionalized Persons Act, this federal law does not require that a city permit a religious facility "as a matter of right" simply because the zoning ordinance permits some secular assemblies as a matter of right. in any event, even assuming, for the sake of argument, that the City's IZO did violate RLUIPA, curing any violations by means of the Determination Is improper, The 3835 Cypress Community does not object to new religious uses In the City of Petaluma, but feels that allowing a religious institution at the site proposed, 2 In this Instance, we understand that the City Issued, in 2010, a conditional use permit to Community for Spiritual Living to operate a religious facility as an accessory use, As explained below, this conditional use permit has been abandoned, and any religious Institution seeking to operate in units 107 and 108 of 3836 Cypress Drive must apply for a new use permit to operate. SWO999059464.2 Page 39, Attachment 4 City of Petaluma Planning Commission March 2, 2015 Page 3 especially without the application of any conditions of approval, is detrimental to the welfare of those who work and receive medical aid at 3835 Cypress Drive. We explain each of the foregoing points In greater detail below. I. The issuance of the Determination violates the City's zoning ordinance. The Determination was rendered under section 3.030(D) of the IZO, whereby the planning director may determine that a proposed use "not listed" in a particular zone Is allowable if it is similar to and compatible with listed uses. (IZO, § 3.030(C) &(D).) A key fact here Is that, to evoke authority under this provision, the community development department must find that the proposed land use is gnat listed as allowed in another zone." (IZO, § 3.030(D)(5).) Whereas the Determination Indicates "a religious facility is not a permitted use in any of the city's zoning districts" (see Determination, p, 2, ¶ 8), this statement misconstrues what it means to be "allowed in another zone." The Determination is correct in asserting that religious uses are 'not permitted by right in the City. But, per the express terms of the IZO, an "allowable" use contemplates both uses that are permitted by right (i.e., those uses shown as "P" in various tables of the IZO) and uses that are "allowed subject to th"s proval of a Conditional Use Permit" (i.e., uses shown as "CUP" In, the foregoing tables). (IZO, § 3,030(H)(1) &(2).) Here, a religious facility is "allowed" with a conditional use permit in numerous zoning districts, Including Natural and Rural Zones (see IZO, Table 4.1); Residential Zones (see IZO, Table 4.2); Mixed Use Zones (see IZO, Table 4.3); and Civil Facility Zones (see IZO, Table 4,5). Moreover, it Is "allowed" In the very zone at issue — the Business Park zone -- as a conditionally permitted use. (See IZO, Table 4.4,) Accordingly, It is wholly inappropriate to use the Interpretive mechanism under section 3.030(D) of the IZO to allow a religious use in a Business Park zone, (See IZO, § 3.030(0)(5).) The City cannot make a finding that religious facilities are "not listed as allowed in another zone," (See Id.) II. The Determination Is a de facto zoning text amendment. The - .foregoing Incongruity reveals an even larger error: the effect of the Determination Is to adopt a zoning text amendment, without following any of the necessary procedures. As Indicated above, the logic underlying this conclusion is fairly simple: (1) the City's ordinance currently Indicates, without ambiguity, that religious uses are conditionally permitted uses in a Business Park zone (IZO, Table 4,4); and (2) the Determination changes this clear directive by treating religious uses as permitted by right in the same zone. Essentially, where religious facilities and Business Park zones are concerned, the Determination changes a "CUP" to a "P"• In Table 4,4 of the IZO. An amendments to the zoning ordinance Is governed by Chaptbr 25 of the IZO, which imposes numerous procedural requirements for such a proposal. For Instance: (1) the application must be accompanied by specified data (IZO, § SMA9999059464.2 Page 40, Attachment 4 ZJ City of Petaluma Planning Commission March 2, 2015 Page 4 25;030); the City's zoning administrator must make an investigation of the proposed amendment and prepare a report (IZO, § 25.040); the City must hold noticed public hearings before the Planning Commission and City Council (IZO, §§ 25.050, 25.060, 25.065); and the City Council must adopted specified findings in approving an amendment (IZO, §25.070). These requirements, in part, are reflective of the State Planning and Zoning Law, which requires that public agencies hold a hearing, and provide advance notice thereof, when considering a zoning text amendment. (See Gov, Code, § 65096(a)) These statutes, in turn, are reflective of constitutional principles that guarantee the citizenry due process of law, (See Cal. Const., art, I, § 7.) In addition, a zoning text amendment is a discretionary decision and thus triggers the application of CEQA. (Pub, Res. Code, § 21080(a); 14 CCR, §§ 15002(1), 15357.) Environmental review must,be undertaken to support the City's action; in this case, it would be appropriate that the City prepare an environmental impact report to study the impacts of the use proposed. The Determination satisfies none of the foregoing requirements. Affirmance of its conclusions therefore would violate state and local law, some of it constitutional In size. Ill. The Determination would have effects throughout the IZO. Affirming the Determination's finding that a religious facility Is equivalent to a club, lodging, or private meeting hall (collectively referred to hereafter as a "Club "7 Wouldhave a ripple effect in the IZO, creating land use Issues that the City perhaps did not intend. For Instance, in Natural and Rural Zones, which currently disallow Clubs but conditionally allow religious facilities, equating the two would mean that religious facilities are no longer allowed in such zones, (See IZO, Table 4. 1.) To the extent that the development of Clubs and religious facilities are subject to different development standards elsewhere in the IZO, the effect of the Determination Is to entangle these land use regulations. A thorough study of the land use and environmental effects of the Determination must be prepared so that the public, and decisionmakers, can understand its full import. IV. Affirming the Determination would sanction an Improper delegation of the City Council's legislative power. Insofar as the City construes section 3.030(D) of the IZO to authorize the planning director to amend, unilaterally, tocal-zoning ordinances,3 such an assignment of power would qualify as an improper delegation of a legislative function. The power to make law is vested in a legislative body such as the City Council. (See Kugler v, Yocum (1968) 69 Cal.2d 371, 375; Salmon Trollers Marketing Assn, v. Fullerton (1981) 124 Cal,App.3d 291, 299.) This rule derives from the doctrine of separation of powers, as set forth In the California 3 Taking this stance Ignores the fact that the planning director cannot make one of the requisite findings, as explained above, and so we address this possibility for the sake of argument. ' saan99999\e59464.2 Page 41, Attachment 4 City of Petaluma Planning Commission March 2, 2015 Page 5 Constitution, article 111, section 3. In limited circumstances, a legislative body may delegate its lawmaking powers, but only after "declaring a policy and fixing a primary standard" or; In other words, establishing an "ascertainable standard to guide the administrative body," (Kugler, supra, 69 Cal.2d at 376; State Bd. -of-Dry Cleaners v. Thrift -D -Lux Cleaners (1953) 40 Cal,2d 436, 448,) Satisfying this standard Is not accomplished with general references to compatibility, consistency, or the promotion of "health, safety, peace, morals, comfort or general welfare." (See People v, Perez (1963) 214 CaLApp,2d Supp. 881, &86.) In this matter, the planning director's criteria for finding a land use is "similar" to a permitted use, and hence allowed In a particular zoning district, only Includes general references to compatibility and consistency, (See Id.; see IZO, § 3.030(D).) This "criteria" does not suffice under applicable law, See .Perez, supra, 214 Cal,App.2d Supp. at 886,) That aside, nowhere has the City delegated to the planning director the power to change the zoning ordinance; rather, it expressly has retained that power in Chapter 25 of the IZO. V. Clubs are different from religious facilities, as expressly defined In the IZO. The Determination contains a series of findings that support the conclusion that a Club is indistinguishable from a "religious use," as those terms are defined in the IZO. (See Exhibit A, pages 1 -2.) Among these findings, the community development department states that "[t]he key distinction between (a) religious facility and a club, lodge, private meeting hall as defined in the IZO is that the religious facility definition applies to organizations exercising religious while the club definition applies to organizations that gather for non - religious purposes," (See ld) The community development department also has found that Clubs-and- religious uses "are comparable in the type and intensity of use," (See !d,) But this finding does not reflect, and In fact contradicts, the plain language of the City's zoning ordinance. Contrary to the Determination, the very definition of each use provides for meaningful distinctions between them, A Club Is defined as follows: Permanent, headquarters -type and meeting facilities for organizations operating on a membership basis for the promotion of the interests of the members, including facilities for: business associations; political organizations; civic, social, and fraternal organizations; professional membership organizations; labor unions and similar organizations; land] other membership organizations. (IZO, § 27,020(C).) Religious uses, meanwhile, are more broadly defined. What follows is a reproduction of the City's defnition of "religious facility ;" we have • italicized those uses that are different from, or more intense than, uses associated with Clubs: �$'RM199999ti989484,2 Page 42, Attachment 4 �f City of Petaluma Planning Commission March 2, 2015 Page 6 Religious Facility. A permanent facility operated by a religious organization exclusively for worship, or the promotion of religious activities, Including accessory uses on the same site. Examples of these types of facilities Include churches, mosques, synagogues, and temples. Examples of allowable accessory uses on the same site include living quarters for ministers and staff, facilities for child day care and neliglouslostruction operated at the same time as religious services (where authorized by the same type of land use permit required for the religious facility itself). May also include fund - raising sales, bazaars, dinners, parties, or other indoor and outdoor events on the same site. Other facilities maintained by religious organizations, including full -time day care centers, full -time educational Institutions, hospitals and other potentially related operations (for example, a recreational camp) are defined in this Article according to their respective activities. Does not include the temporary use of an approved public assembly facility (for example, a private meeting hall, community center, theater, or auditorium) by a congregation for religious meetings, which is instead defined under the type of meeting facility hosting the congregation. (IZO, § 27.020(R) [emph. added].) So while a Club and a religious facility can operate in a similar manner, the land use category of "religious facility," as defined by the IZO, contemplates a broader array of uses that members of a Club are not permitted to undertake, For Instance, a religious facility may provide -for living quarters for staff, child day care, religious instruction, and bazaars. (See Id.) in fact, the Village Baptist Church does propose accessory uses that include, but are not limited to, weddings, funerals, educational classes, choir rehearsals, fundraisers, and special events, A Club is permitted no such accessory uses. By the plain language of the IZO, then, the two uses are legally distinct, contemplating different activities and different intensities of use. The foregoing distinction Is not uncommon. Other zoning ordinances, adopted by nearby cities, also distingulsh between the two land uses. (See, e.g., City of Rohnert Park Municipal Code, § 17.06,840, Table 1.E (requiring• different permits for religious assemblies and clubs in a General Urban Zone],) Vi. The remaining findings in the Determination are not supported by substantial evidence. The Determination Includes findings that religious facilities are compatible with other uses in a Business Park zone because the "type of use, hours of operation and parking are comparable," (See Exhibit A, page 2.) There Is no substantial evidence to support these assertions. As discussed above, while Clubs and some religious facilities may operate In comparable manners, many religious facilities operate differently and at greater intensities. (See Section V, supra.) The distinction surfacing through the plain language in the IZO reflects the practical realities of operating religious institutions. For Instance, religious facilities host a variety of uses that can operate at varied hours, including significant events such as weddings and funerals. Religious facilities also tend to,generate substantial SRM0990594642 Page 43, Attachment 4 City of Petaluma Planning Commission March 2, 2015 r' Page 7 parking demands and noise.levels, While the Determination here opines that a religious facility will not harm the public welfare, there is no evidence-that a religious use will be able to comply, for example, with the City's parking'and noise requirements, In fact, there exists substantial evidence of the opposite conclusion. For instance, the City's parking ordinance requires one parking space for every four congregational seats. (IZO, § 11.060, Table 11.1.) We understand that the Valley Baptist Church has sought approvals to accommodate as many as 125 people, Meanwhile, the proposed site of the Valley Baptist Church — units 107 and 106 at 3835 Cypress Drive — are allocated only 11 parking stalls, and remaining stalls in the parking lot serve the demand generated by other uses In the 3835 Cypress Community. It is unclear, then, how the City envisions the proposed use can satisfy Its parking requirements without imposing conditions of approval. We understand the Valley Baptist Church has informed the City that it would accommodate 125 people only on Sundays, when it asserts the local parking lot is not in use by other tenants, Even if there do exist ways to ensure harmony among uses in the 3835 Cypress Community, the Determination constitutes an abdication of the City's right and responsibility to do so. By permitting a religious facility by right, the City has no means to regulate its operation (e.g., restrict church parking to certain numbers or times). With respect to noise, the IZO provides that the "City of Petaluma is hereby designated a quiet city" and that, "[alt certain levels, noises are detrimental to the health and welfare of the citizenry." (IZO, § 21.040.) The zoning o�iinaribe thereafter sets forth maximum exterior decibel levels, and generally requires that no use generate more than 60 decibels of noise. (See IZO, § 21.040(A)(4)(c), Table 21.1.) These requirements are recognized by, and incorporated into, the City's general plan. (General Plan, Chapter 10, Policy 10- P -3 -C, Figure 10 -2.) The City's general plan, meanwhile, establishes additional noise regulations. For instance, various policies in the General Plan provide that noise levels greater than 75 decibels are unacceptable at offices, and that levels gredWr-than 70 decibels are unacceptable at medical facilities. (General Pian,'Chapter 10, Policy 10- P -3 -E, Figure 10 -2.) Meanwhile, these same policies provide that noise levels at office buildings are conditionally acceptable at about 67 decibels, and that noise levels at medical facilities are conditionally acceptable at 60 decibels, (ld.)4 By contrast, evidence shows that decibel levels in places of worship often are loud — greater than 90 decibels — raising concern even among members of congregations about damage to their own hearing. (See Exhibit B [article by company specializing in church audio and video Installations, setting loudness standards 4 It bears mention that the City, at least when permitting new noise sensitive uses, requires that Interior noise levels not exceed 45 decibels. (General Plan, Chapter 10, Policy 10- P -3 -B) SRM1999991959484.2 Page 44, Attachment 4 � /!1 City of Petaluma Planning Commission March 2, 2015 Page 8 above 90 decibels]). The potential for conflict must undergo further analysis and regulation, as substantial evidence demonstrates. The potential for health and safety Issues arises as well. For Instance, we understand that the Valley Baptist Church has asked for permisston -to host funerals and weddings. Again, the immediate neighbors of units 107 and 108, who share a common entrance way, are primarily medical practitioners, It would seem that inviting uses that place cadavers In the Immediate vicinity of medical patients creates an Irreconcilable land use conflict. Similarly, allowing weddings to take place, without any restrictions or qualifications, in an area where sensitive medical and dental procedures are occurring, also seems to raise an irreconcilable land use conflict. As the IZO currently reads, City rightfully has required a conditlonal`ose permlt so that it can weigh in, and regulate, such operations. The Determination, and approval of the findings that support it, would result in an abdication of the City's rights and responsibilities. Past correspondence, submitted by neighbors at 3835• Cypress Drive, contain additional Information about the incompatibility of a religious facility, including concerns about emergency access, This correspondence is attached hereto as Exhibit C and Incorporated by reference. In conclusion, while the Determination opines that a "religious facility Is consistent with the general purpose of the BP zone and is not anticipated to detract that Intent" (see Exhibit A, pages 1 -2), there exists substantial evidence that operation of a religious use, especially without restriction, would disrupt the welfare of those who work and seek medical assistance at 3835 Cypress Drive. 1 VII. It is unlikely that a Court would defer to the City's decision to affirm the Determination and the interpretations supporting It. While cities enjoy'some deference to their interpretations of zoning ordinances, it is unlikely that the City would enjoy deference insofar as It either; (1) determined the planning director has the authority to adopt a zoning text amendment; (2) concluded the Determination Is not a de facto zoning text amendment; (3) otherwise affirmed, substantively, the determination that a religious facility is permitted by right In a Business Park zone; and (4) adopted findings that a religious use is legally distinct from a Club and is compatible with other Business Park zoning uses. Under applicable law, a court may reject a city council's interpretation of one of Its own laws if the "interpretation of the term was arbitrary, capricious or entirely lacking in evidentiary support." (No 011, Inc. v. City of Los Angeles (1987) 196 Cal.App.3d 223, 244.) Moreover, an Interpretation by a senior administrative official is entitled to less judicial deference, especially where the Interpretation contradicts established law, or where the interpretation vacillates over time. (See Id, see McPherson v. City of Manhattan Beach (2000) 78 Cal.App.4th 1252, 1268 (interpretation of planning $RMW9999W9464.2 Page 45, Attachment 4 �7 City of Petaluma Planning Commission March 2, 2016 Page 9 employee had no bearing where court held ordinance was clear and unambiguous]; Stolman v, City of Los Angeles (2003Y 114 Cai,App.4th 916, 928 -29 [rejecting Interpretation of zoning administrator where reading ignored relevant clause In ordinance; Yamaha- Corporation of America v. State Board of Equalization (1998) 19 Cal.4th 1, 13 [deference lessens where Interpretations are not consistent over time] '.) In this Instance, the substance of the Determination — and any conclusions or findings that would operate to support It -- ignore the express restrictions of authority set forth in section 3.030(D), which authorizes a "similarity" interpretation only where the proposed use is riot allowed in another zone. Again, a religious facility is allowed in numerous zones, Including the zone at Issue. (See Section I, supra.) Hand in hand with this Issue is that, because the City already requires a conditional use permit for a religious facility in a Business Park zone, detennining It now is permitted by right squarely contradicts the plain language of the IZO. It Is, effectively, a zoning text amendment, which is an approval explicitly defined and regulated under Chapter 25 of the IZO. (See'Sectlon 11, supra.) 'Ths Determination ignores each of the express requirements that attach where a party proposes a zoning text amendment. Moreover, the findings that support the Determination contradict the plain terms of the IZO, For instance, the finding that religious facilities and Clubs are indistinguishable is belied by the manner In which the IZO defines the two uses; a religious facility Is defined to Include a broader array of accessory uses that may operate at greater Intensities, (See Section V, supra,) Meanwhile, those findings that address the compatibility of religious uses with other uses permitted In a Business Park zone are conclusory, unsupported by any evidence, and threaten to result In violations of parking, noise, and other ordinances. (See Section VI, supra,) Ultimately, to reach the substantive conclusions in the Determination, the City would have to overlook a series of direct, code -based contradictions that the Determination creates, meaning a court likely would not defer to an affirmance of4hem.- (See No 011, Inc,, supra, 196 Cal.App,3d at 244,) Finally, It bears mention that, only five years ago --- in 2010 -- the City determined that It would require a conditional use permit for a religious facility in this very same Business Park zone -- In the very same location, In fact, (See Exhibit D [copy of 2010 conditional use permit for religious facility at same site, 3835 Cypress Drive]) It bears mention too that the City required a conditional use permitety_en- though the religious facility proposed at that time was (1) ancillary to proposed medical uses, ' and not a primary use, and (2) contemplated a smaller number of congregation members, At that time, the City determined It was necessary to condition an ancillary religious use In terms of. (1) hours of operation for spiritual services; (2) the size of the congregation; (3) the timing of larger events such as weddings, funerals, and SPNMG999%95M.2 Page 46, Attachment 4 r) City of Petaluma Planning Commission March 2, 2015 Page 10 fundraisers; and (4) the timing, frequency, and size of classes and workshops associated with the religious facility, (See Exhibit D, p, 4, Condition 1.) Nowhere does this previously approval contemplate that a religious facility would be permitted by right in a Business Park zone, The fact that the City now proposes to permit, as a matter of right, a religious facility as a primary use is inconsistent with its earlier approach, and this vacillation in the City's position over time further would undermine the Determination in the eyes of a reviewing court. (See Yamaha, supra, 19 C91.4th at 13.) For the foregoing reasons, the Determination is Improper, and should be voided. A religious use, under the plain terms of the IZO, Is not permitted by right In a Business Park zone. Vill. The City's existing treatment of religious facilities is appropriate under federal law addressing the land use regulation of religious institutions. The Religious Land Use and Institutionalized Persons Act ( "RLUIPA "), enacted by the U.S. Congress in 2000, regulates a city's ability to impose land use restrictions on a religious use. To the extent the City has rendered the Determination as a means of satisfying RLUIPA, we wish to address the scope of this federal act. A city is not required under by RLUIPA to permit religious• facilities 11ai3 a matter of right" just because the zoning ordinance permits some secular assemblies as a matter of right. The "equal terms" provision of RLUIPA provides: (1) Equal terms, No government shall Impose or Implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution. (2) Nondiscrimination. No government shall impose or implement a land use regulation that discriminates against any assembly or Institution on the basis of religion or religious denomination. (42 U.S.C. § 2000cc(b)(1) -(2).) In general, a zoning ordinance whOKIreats secular and religious assemblies differently does not violate the equal terms provision of RLUIPA "so long as there is a neutral and generally applicable principle for doing so," (Centro Familiar Crlstleno Buenas Nuevas v. City of Yuma ("Control, 615 F. Supp, 2d 980, 996 (D, Arizona, Jan. 30, 2009; see also River of Life Kingdom Min. v. Village Hazel Crest, 585 F. 3d 364, 373 [ "Land use regulations generally include or exclude a number of entities, And the fact that a church is one of them does not render the law facially discriminatory"j.) Several courts have critiolzed such an expansive interpretation of RLUIPA, which could easily lead-"to the absurd result that'if a town allows a local, ten - member book club to meet in the senior center, it must also permit a large church with a thousand members. "' (Centro, supra, 585 F. SRM1999991959464,2 Page 47, Attachment 4 j, -` City of Petaluma Planning Commission V March 2, 2015 Page 11 Supp, 2d at 993, citing Lighthouse Inst. for Evangelism, Inc. v, City of Long Branch, 510 F. 3d 253, 264 (3d Cir, 2007). . In Centro, the City's zoning code permitted a variety of uses as a matter of right within the "Old Town District," including "Membership organizations (except religious organizations)." (ld. at 984,) On the other hand, the code required "religious organizations" to be located within the Old Town District to obtain a conditional use permit. The code also required Issuance of a conditional use permit for educational, job training, and vocational rehabilitation services. (Id, at 996.) Because there were several "neutral" reasons for requiring conditional use permits for religious membership organizations but not secular ones, the court held that the zoning ordinance did not violate the equal terms provision of RLUIPA. In particular, the court in Centro noted that "religious organizations frequently use a single facility for purposes of assembly and for various accessory uses," (Id, at 997,) As the court noted, the church's own conditional use permit application indicated that it Intended to "to offer GED, English classes and computer classes, "'If°pursued Independently, these services could be considered job training`services that would trigger the zoning code's conditional use permit requirements. But if religious membership organizations were permitted as a matter of right, than the "the City might have to allow those accessory uses" even without a conditional use permit. (Id. at 997.) Thus, the court held that "( reequiring a CUP from religious organizetions.enables the City to assess and mitigate the Impact that such kinds of accessory uses might have on surrounding uses, irrespective of their religious motivation," (Ibid., citing Family Life Church v. City of Elgin, 561 F.Supp,2d 978, 985.988 (RD.111,2008) [holding that under the Free Exercise Clause and RLUIPA a City could apply a CUP requirement to a church that sought to operate a homeless shelter as an accessory use],) On the other hand, because nonreligious "membership organizations" do not "customarily engage in wide - ranging accessory uses," the city has less of a concern that "permitting such organizations it is opening the door to secondary land use Impacts, so there Is no reason to require a CUP." (id, at 999; see also, Here, just as in Centro, there are neutral reasons why the Petaluma zoning ordinance permits "clubs" as a matter of right within the Business Park zone but requires churches to obtain a conditional use permit, As explained in Section V, supra, the City defines "religious facility" in the IZO In a manner that allows for a broader array of uses than is associated with a Club, For instance, religious facilities may Include living quarters for staff, child day care, religious instruction, and bazaars, whereas Clubs by definition cannot Include such uses. (See IZO, § 27.020(C)&(R).) This difference Is a common one. As noted In Centro, churches often have "accessory uses" that may open to the door to secondary land use Impacts. These legal principles are relevant to the inquiry here. As noted above, the Village Baptist Church in fact does propose accessory uses that include,'bQt-are not limited SRM1999991959464.2 Page 48, Attachment 4 �l City of Petaluma Planning Commission March 2, 2015 Page 12 to, weddings, funerals, educational classes, choir rehearsals, fundraisers, and special events. Moreover, such uses, when proposed independently, merit closer scrutiny by the City. For instance, a nonreligious conference/convention facility or school, when proposed in a Business Park zone, is required by tft zoning ordinance to obtain a conditional use permit. A conditional use permit Is an appropriate mechanism to evaluate religious facilities In a Business Park zone, given the broad array of uses that accompany a religious' facility. If a religious facility is permitted as a matter of right, then the City "would have to allow those accessory uses" even without a condition of approval. (Centro, supra, 585 F. Supp. 2d at 997.)6 Vill. Request for relief. The 3835 Cypress Community does not oppose the establishment of religious facilities In the City of Petaluma, but believes that 3835 Cypress Drive is not an appropriate place for such a use, especially if the City It abdicating Its responsibility to regulate it through conditions of approval. For all of the reasons set forth In this letter, the 3835 Cypress Community requests that the City void .the Determination. To the extent the Village Baptist Church seeks to operate.at 3835 - Cypress Drive, it must seek a new conditional use permit pursuant to section. 24'.030 of the IZO. The existing permit, attached as Exhibit D, has been abandoned and is void. Section 24.030(M) of the IZO provides that, where a holder of a conditional use permit has ceased use for a period of one year, that permit is deemed to be "abandoned," and must be revoked, Here, the user of the 2010 conditional use permit for the site, Community for Spiritual Living, ceased its operations two years ago, In February 2013. The 2010 conditional use permit thus is void, meaning Village Baptist Church must seek a new use permit. To the extent the City further considers or makes any CEQA decisions regarding an application by Village Baptist Church, or another religious institution, to operate at 3835 Cypress Drive, the 3835 Cypress Community respectfully requests written advance notice of any further action the City may undertake pursuant to, Inter Gila, 14 CCR, § 13054, Public Resources Code sections 21083.9, 21092(b)(3), and 21092.2, Government Code section 54954.1. e We note that the City, In Issuing conditional use permits, -often Includes a requirement that an applicant indemnify the City. (See Exhibit D, p. 3, 19.) By permitting a religious facility by right, the City may be forfeiting Its right to demand indemnity should a party legally challenge Its determinations. •--- 8RMW90GW69464.2 Page 49, Attachment 4 f/ �� City of Petaluma Planning Commission March 2, 2015 Page 13 We thank you for your attention to these Important matters, Sincerely, , MILLER STARR R GALIA Sean R. Marciniak SRM;kl1 Attachments cc; Angela Haas, Property Manager for 3836 Cypress Drive Daniel Miller, Miller Starr Regalia Eric W. Danty, City of Petaluma, City Attorney Jonathan Matthews, Counsel for Village Baptist Church SFOM99991959464.2 Page 50, Attachment 4