First Lutheran Church vs. City of St. Paul, Doc. 1 Verified Complaint

CASE 0:18-cv-00954 Document 1 Filed 04/06/18 Page 1 of 35
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
First Lutheran Church, St. Paul, )

Ramsey County, Minnesota, ) Case No. _____________
)
Plaintiff, )
VERIFIED COMPLAINT
)
vs. )
The City of St. Paul, )
)
Defendant. )
Plaintiff First Lutheran Church, St. Paul, Ramsey County, Minnesota (“First
Lutheran”) brings the following Complaint against Defendant The City of St. Paul
(“Defendant”) and states and alleges as follows:
PARTIES
1. First Lutheran is a church and nonprofit corporation organized under the laws
of State of Minnesota, with its principal place of business located and maintained within
the County of Ramsey, State of Minnesota.
2. Defendant is a Minnesota political subdivision. For purposes of RLUIPA,
Defendant constitutes a “government.” 42 U.S.C. § 2000cc-5(4)(A)(i), (ii).
3. Defendant is governed by a City Council with 7 council members.
JURISDICTION AND VENUE

4. This Court has original jurisdiction over this action under 42 U.S.C. §
2000cc-2(f) and 28 U.S.C. § 1331 and supplemental jurisdiction pursuant to 28 U.S.C. §
1367.
5. Venue is proper in this Court under 28 U.S.C. § 1391(B) because the claims
alleged herein arose in the District of Minnesota.

6. This Court has personal jurisdiction over Defendant as a city and municipal
corporation with the State of Minnesota.
FACTUAL ALLEGATIONS
A. History of First Lutheran and its Efforts to Address Poverty and Homelessness
7. Established in 1854, First Lutheran is the oldest Lutheran Church in the State
of Minnesota.
8. Charity and service to those in need are integral parts of First Lutheran’s
mission and religious beliefs. First Lutheran’s first resident Pastor, Eric Norelius, was
proclaimed a “Friend of the Homeless.” A memorial plaque of Pastor Norelius is
prominently displayed on the church walls, including those words (“Friend of the
Homeless”).
9. First Lutheran’s building (the “Church Building”) is located in the Dayton’s
Bluff neighborhood, and perched above Swede Hollow Park – so named for the large
numbers of Swedish immigrants (many of whom were poor) who settled there. Providing
support for the neighboring poor has always been an important part of First Lutheran’s
religious identity.
10. Over a decade ago, First Lutheran’s Church Council began a process of
discernment focused around the mission question, “Does Love Live Here?” Leaders of the
church began this process in order to deepen their faith, and to ensure that their place of
worship was a true embodiment of their religious commandments.
11. Since that process began, First Lutheran has strengthened its social outreach
programs in a thoughtful and incremental fashion.
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12. As an example, First Lutheran first began serving breakfast to over 300
people each Sunday for approximately three years. That experience gave the church an
increased appreciation for the many complex issues that attend poverty and homelessness.
13. To help address these concerns regarding poverty and homelessness, First
Lutheran then established its Love Grows Here Wellness Center (the “Wellness Center”).
The Wellness Center, through volunteers and partners, provides a holistic approach to
issues surrounding poverty by serving free meals, providing free blood pressure checks and
health assessments through the Nursing Department at Metro State University, free mental
health counseling, giving away free clothing, blankets, and housewares through
Ministering Angels, providing free Healing Touch, Massage, and Qigong services and
more to approximately 100-150 people a week. Other than the Fire Code, there was no
restriction on the number of people First Lutheran could serve at its Wellness Center.
14. First Lutheran also hosts a “Home(full) Camp” where it brings unhoused
individuals to a camp in Deerwood, Minnesota, where it provides food, clothing, and
housing for a week to provide a sanctuary for rest from the stressors of homelessness.
15. To further this ministry, First Lutheran also partners with organizations that
have similar missions or charitable goals. In addition to the above programs, the church
houses other community-based nonprofit organizations including East Side Elders, Urban
Roots, Young Artist Initiative/YouthTheater and Santo Niño Episcopal Church.
B. First Lutheran’s Partnership with Listening House

16. The Listening House of St. Paul (“Listening House”), a 501(c)(3) charitable
organization, was initially established in 1983. Listening House is a day shelter and
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community center than focuses on providing hospitality and practical assistance to the
disadvantaged, homeless, or lonely.
17. From its founding in 1983 until its move into the Church Building in 2017,
Listening House had been located in downtown St. Paul, near the Dorothy Day Center. In
2016, however, Listening House learned that it would have to surrender its premises as part
of the development of the (now operational) Dorothy Day Place and Higher Ground.
After learning of these plans, Listening House began to search for a new permanent home.
18. In 2016, First Lutheran learned that Listening House was in need of a new
location. First Lutheran’s Church Council invited Listening House to discuss a partnership
and use of the Church Building’s “Sanctuary” basement.
19. Listening House’s partnership was welcomed by First Lutheran’s Church
Council. Listening House’s commitment to helping those in need with practical and
holistic assistance was precisely what First Lutheran had been attempting to provide its
community for decades through its charitable missions and the Wellness Center.
20. Additionally, creating a partnership with Listening House meant First
Lutheran could serve not just those in the neighborhood who were already asking for help,
it meant First Lutheran could continue its ministries, expand its reach and further serve St.
Paul.
21. Like First Lutheran, Listening House understands that those in transition and
crisis can feel isolated and are in need of a welcoming and safe environment, and Listening
House strives to create a sense of community and connection by promoting respect for all.
22. In 2017, Listening House served over 800 people, providing hygiene
products, clothing, message delivery, telephone use, haircuts, foot care (including
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socks/shoes/boots) and essential first aid. Listening House also has onsite partner
professionals including mental and chemical health outreach teams, housing advocates,
chiropractic care, medical screening and veteran’s assistance. These services are provided
during the day.
23. In January of 2017, as a product of the above-described discussions,
Listening House and First Lutheran entered into a lease agreement where First Lutheran
agreed to host Listening House for 10 years.
C. Procedural Background
i. Defendant’s Grant of Determination of Similar Use

24. In an effort to comply with all applicable laws, in November of 2016,
Listening House contacted Former Mayor Chris Coleman’s office to find out what, if any,
approvals were needed for First Lutheran to host the Listening House. They were told by
the Zoning Administrator that First Lutheran would have to apply for a determination of
similar use. Listening House also met with City Council Member Jane Prince, who
expressed admiration for Listening House’s mission and said she did not anticipate any
controversy.
25. On February 21, 2017, First Lutheran submitted a Request for Determination
of Similar Use under § 60.106 of the City of St. Paul Zoning Code. A true and correct copy
of the request is attached as Exhibit A.
26. Approximately one month later, on March 20, 2017, the City of St. Paul
Zoning Administrator granted First Lutheran’s request and issued a Statement of
Clarification (“Determination of Similar Use”), determining that “the use of First Lutheran
Church leasing space to Listening House to provide assistance to low-income, homeless or
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lonely adults for hospitality, practical aid and referrals to other agencies for specific
needs…is similar to other accessary [sic] church uses as 463 Maria Avenue.” A true and
correct copy of the Determination of Similar Use is attached as Exhibit B.
27. The Determination of Similar Use found that (1) the use was similar in
character to one or more of the principal uses permitted; (2) the traffic generated on such
use is similar to one or more of the principal uses permitted; (3) the use is not first permitted
in a less restrictive zone; and (4) the use is consistent with the comprehensive plan.
28. The Determination of Similar Use also placed three conditions, with
subparts, on First Lutheran and Listening House, which included a requirement that
Listening House “shall meet the standards and conditions for ‘home occupation’ as listed
in Section 65.141 b, c, g, and h of the Zoning Code, except that the use is accessory to a
church rather than a dwelling unit (and therefore the person conducting the activity need
not live on the premises), and that some limited classes may be offered.”
29. The determination was made based in part on Defendant’s 2004 approval of
a Determination of Similar Use for St. Mary’s Episcopal Church that “leasing space to
organization(s) that provide educational, service, performing arts, and studio arts is similar
to other accessory church uses.”
30. With Defendant’s approval, Listening House moved into First Lutheran,
completed much-needed renovations to the basement space, and opened its doors on June
5, 2017.
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ii. Neighborhood Response

31. Almost immediately after Listening House moved in, a subset of several
neighbors made it clear that they were opposed to Listening House and its visitors’
presence in the Dayton’s Bluff neighborhood.
32. These neighbors alleged the opening of Listening House resulted in a “vast
increase in foot traffic, loud, sometimes disrespectful, often intoxicated, sometimes
actively psychotic, sometimes criminally engaged, sometimes threatening, sometimes
argumentative people making their way to and from the Upper Park, the Hollow, and the
Listening House.”
33. The neighbors took to photographing individuals whom they assumed were
homeless and visitors of Listening House.
34. They also proactively called local law enforcement about any “suspicious”
activity.
35. First Lutheran is not a stranger to neighborhood pushback for its charitable
work, and at one point was dubbed “Slumlords for Jesus” by the neighbors. Neighbors have
also opposed First Lutheran’s past attempts to secure Star grants for other development
projects geared towards low-income assistance in the past.
iii. Appeal to Board of Zoning Appeals and Planning Commission

36. In response to the neighborhood reaction, the Department of Safety and
Inspections sua sponte mailed a letter to First Lutheran, Dayton’s Bluff District 4
Community Council, Listening House, and city officials inviting appeals from the March
20, 2017 Determination of Similar Use. This letter was sent on July 3, 2017, nearly four
months after granting First Lutheran’s request for Determination of Similar Use.
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37. Providing notice of a right to appeal a determination of similar use is not
required under statutes, nor does the Zoning Administrator have a written policy to do so.
38. On July 13, Rene and Kim Lerma (the “Lermas”), joined by a handful of
neighbors, filed an appeal challenging the Zoning Administrator’s March 20, 2017
Determination of Similar Use to the City of St. Paul Planning Commission and the Board
of Zoning Appeals. (“Zoning File 17-060-690”)
39. The Lermas argued that the Zoning Commission failed to hold a public
hearing and that it erred in its decision that Listening House’s use of the property was
similar to that contemplated for churches. The Lermas also claimed that “Listening
House’s presence in this particular neighborhood …and the population Listening House
invites into the area, undermines decades of effort a unique combination of people have
invested in Dayton’s Bluff.”
40. The Lermas’ appeal took on a “not in my backyard” theme, focusing on the
visitors of Listening House, referring to the visitors in overly broad offensive terms,
characterizing Listening House visitors as drunks, litterers and thieves, and assuming that
anyone causing problems in the Dayton’s Bluff neighborhood was without question either
on their way to, or coming from, Listening House.
41. As part of their appeal, the Lermas submitted photos of the issues allegedly
caused by Listening House visitors, police logs, and letters from other neighbors opposing
Listening House’s presence at First Lutheran.
42. First Lutheran and Listening House vigorously opposed the Lermas’ appeal,
submitting letters from dozens of supporters, including representatives from First Lutheran
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and Listening House, and other volunteers and neighbors in favor of Listening House and
First Lutheran’s mission and presence in the neighborhood.
43. Through submissions made regarding the appeal, counsel for Listening
House asked the Zoning Committee to uphold its March 20, 2017 Determination of Similar
Use. He stressed that the Listening House use is identical to that of First Lutheran and is
consistent with uses common in religious organizations, and more specifically, to those
undertaken by First Lutheran for previous years. He expressed his concerns that the Lermas
were effectively asking the Zoning Commission to regulate people instead of land uses,
and that many of the requested restrictions and neighborhood complaints were based in
fear of the people using Listening House and First Lutheran’s services.
44. Pastor Chris Olson Bingea of First Lutheran and Rosemarie Reger-Rumsey,
former Executive Director of Listening House, also submitted letters highlighting First
Lutheran’s commitment to helping the community, and the shared missions and values of
First Lutheran and Listening House. They also explained how Listening House’s services
were a continuation of the services First Lutheran was already providing, and Listening
House was able to provide resources to continue and further that mission.
45. On August 3, 2017, the Zoning Committee held a public hearing regarding
the Lermas’ Appeal, File 17-060-690. At the time of public hearing, the Staff
recommendation was to grant the Lermas’ appeal, reversing the March 20, 2017
Determination of Similar Use. However, the Zoning Committee moved to lay the matter
over for four weeks in an attempt to resolve some of the issues raised at the hearing.
46. At the suggestion of Assistant City Attorney Peter Warner, Nancy Homans
of Former Mayor Chris Coleman’s staff agreed to work with the Lermas, Listening House,
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First Lutheran, as well as other members of the neighborhood and City employees from
the Police Department and the Department of Safety and Inspections in an effort to resolve
the issues presented by the Lermas’ appeal.
47. Listening House and First Lutheran participated in good faith in these
negotiation efforts. In an effort to foster a more positive relationship with the
neighborhood, Listening House and First Lutheran agreed to comply with a number of
conditions, even though they felt they were not required to under the law. They also opened
up the church for a number of discussion sessions with neighbors.
48. On September 13, 2017, Assistant City Attorney Peter Warner provided the
Zoning Committee a summary of the discussions, distilled from information received from
Nancy Homans.
49. The Zoning Committee reconvened in a closed meeting on September 28,
2017. At that meeting, the Zoning Committee accepted the appellants’ version of a report
of the negotiations, without otherwise reopening the record for public comments, and
recommended granting the Lermas’ appeal in full and overturning the Zoning
Administrator’s decision.
50. Listening House immediately submitted an objection to the Zoning
Committee’s recommendation, asking that the Planning Commission either (1) reject the
Zoning Committee’s recommendation to grant the appeal and instead reject the appeal on
the basis of the record before the Planning Commission; or (2) reopen the public hearing
to provide an opportunity to correct the record and address matters presented after the close
of public comment.
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51. On October 6, 2017, the Planning Commission discussed the
recommendation of the Zoning Committee among themselves and with the Assistant City
Attorney and planning staff, without opportunity for public comment. The Planning
Commission vote on the Committee recommendation to grant the appeal ended in a tie.
Rather than entertain an alternative motion, or determine that a tie vote meant that the
appeal failed, the Planning Commission held the matter over for their October 20, 2017
meeting.
52. On October 20, 2017, the Planning Commission voted to deny the Lermas’
appeal in part and modify the Zoning Administrator’s Determination of Similar Use,
adding eleven more conditions to the Determination of Similar Use’s original three, which
were as follows:
4. Hours of operation shall be limited to 9:00 AM to 5:00 PM.
5. Listening House will ensure that guests have left the area
after Listening House has closed and will provide bus fares to
its guests. Listening House staff must be on-site for two hours
before and two hours after the times guests are served at the
facility.
6. Listening House will not allow the consumption of alcohol

or controlled substances anywhere on the First Lutheran
Church properties.
7. Listening House will call emergency services when a guest

is engaged in behavior that is harmful to self or others.
8. Listening House will give notice on a shared Google site of

serious incidents observed that involve their guests.
9. No outdoor patio may exist anywhere on church grounds

during Listening House’s tenancy.
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10. A sign must be posted in a plainly visible location to restrict

after-hours use of the church grounds so as to aid in the
enforcement of trespassing violations by Listening House
guests or other persons when Listening House is closed.
11. Listening House will attend community policing meetings

as invited by the Saint Paul Police Department.
12. Listening House will review on a daily basis their own

camera footage and an online log maintained by neighbors in
order to identify issues of concern and potential intervention.
13. Listening House will post guest policies regarding “good

neighbor” expectations and consequences, including
suspension or barring from Listening House and the
church properties. Such policies must be readily visible to
guests. Also, the policies must be provided to neighbors and
the Zoning Administrator upon request.
14. The number of guests will generally be limited to 20 per

day. If the number of guests exceeds 20 per day more than
twice in any calendar month, notice shall be provided to the
Zoning Administrator within 7 days of the end of said month.
If the number of guests exceeds 20 per day more than four
times in any month, a feasible written plan for reducing the
number of guests on the site as soon as reasonably possible
shall be prepared and provided to the Zoning Administrator
within 30 days of the end of said month for review and
approval. Any such written plan for reducing the number of
guests approved by the Zoning Administrator must be
executed according to the provisions of said plan in order to be
in conformance with this condition of approval.
(“Planning Commission Resolution 17-64”), Before the vote, a Commissioner asked City
Planner Bill Dermody to explain the twenty-person per day limit. Mr. Dermody described
the twenty-person limit as “arbitrary.” A true and correct copy of the Planning Commission
Resolution 17-64 is attached as Exhibit C.
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iv. Appeal to St. Paul City Council

53. First Lutheran was extremely concerned about the conditions set forth in the
Planning Commission’s Resolution 17-64, because those conditions would directly and
improperly infringe upon the operation of First Lutheran and Listening House.
54. On October 30, 2017, Listening House appealed the Planning Commission
Resolution 17-64, File Number 17-060-690, on the grounds that it (1) erred in determining
the use was “accessory” instead of “principal” church use; (2) erred in imposing conditions
on use of First Lutheran Church and its tenant that are vague, overbroad and discriminatory;
(3) erred in applying “home occupation” standards to First Lutheran when the services
provided by First Lutheran and Listening House are not defined by zoning code and are
free – in contrast to the services provided by St. Mary’s; and (4) erred in imposing
discriminatory conditions regulating who First Lutheran and Listening House can serve,
instead of limiting its conditions to regulating the development and use of the land.
55. In its supporting documents, First Lutheran reminded Defendant that First
Lutheran is a place of worship and should be regulated as such. First Lutheran also
reminded Defendant that Listening House’s use is not only similar to First Lutheran’s use,
but is actually a primary use because Listening House is helping First Lutheran serve
indigent, homeless, and lonely adults as part of First Lutheran’s historic mission.
Specifically, First Lutheran objected to Defendant’s conditions stating, “[a]ny conditions
the City imposes on Listening House are conditions the City is imposing on the Church.
Accordingly, any such conditions must be consistent with conditions the City imposes on
every other religious institution engaged in similar activities and must not impose on the
Church conditions that are more stringent than is absolutely necessary to address the
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legitimate concerns of our neighbors.” A true and correct copy of this letter is attached
here as Exhibit D.
56. The Lermas also appealed Planning Commission Resolution 17-64.
57. The City Council held a public hearing on December 6, 2017, closed the
public hearing, and laid the matter over to its December 13, 2017 meeting, at which the
City Council discussed the matter without further public comment.
58. During the public hearing, City Planner Bill Dermody presented the Staff
Report to the Council and answered questions from the City Council. The City Council
provided all interested parties, including members of the neighborhood, representatives
from Listening House, and First Lutheran two minutes each to present their positions.
59. During the public hearings, City Planner Bill Dermody testified that the first
three conditions in Planning Commission Resolution 17-64 were carried over from the
original Zoning Administrator’s Determination of Similar Use, ten were developed from
the dialogue between First Lutheran, Listening House, and Nancy Homans, but the final
condition superimposed by the planning commission was based on a prior condition placed
on St. Mary’s determination of similar use of ten-person per day for a yoga class on its
premises.
60. When questioned by Council members about the twenty-person per day limit,
Mr. Dermody had a difficult time explaining how the limit would actually work, what
Listening House should do when the twenty-first visitor arrived, or how Listening House
would propose a plan. Mr. Dermody himself admitted the number was not based on a study
or other research, but instead was ten more than the limit imposed on the St. Mary’s yoga
class. A number of the Council members expressed concern about the arbitrariness of the
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twenty-person per day limit and the vagueness of the condition, and were concerned that
those refused admittance would be turned back into in the neighborhood.
61. On December 13, 2017, the City Council voted 5-2 in favor of denying both
appeals and adopting the Planning Commission conditions. The City Council passed on a
second motion 7-0 in favor of a delaying one of the conditions – the start date for the
twenty-person limit – to April 2, 2018.
62. Nearly two months later, on February 7, 2018, the City Council
memorialized its December 13, 2017 voice vote with the reading of and passing of City of
St. Paul Resolution 18-145 (“Resolution 18-145”). The City Council presented Resolution
18-145 to Mayor Carter, and it was returned unsigned on February 21, 2018, constituting
the final action enacting Resolution 18-145 by the Defendant on February 21, 2018.
63. Resolution 18-145 adopted the Planning Commission Resolution 17-64, with
modifications as follows:
1. The nonprofit tenant is limited to uses that are low profile,

generate limited traffic, are compatible with the church’s
presence in the community, and have the potential to
complement the activities of the church.
2. Tenants shall meet the standards and conditions for “home

occupation” as listed in Section 65.141 b, c, g and h of the
Zoning Code, except that the use is accessory to a church rather
than a dwelling unit (and therefore the person conducting the
activity need not live on the premises), and that some limited
classes may be offered.
(b) A home occupation shall not involve the conduct of

a general retail or wholesale business, a manufacturing
business, a commercial food service requiring a license,
a limousine business or auto service or repair.
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(c) A home occupation shall be carried on whole within

the main building. No occupation shall be allowed in
detached accessory structures or garages.
(g) There shall be no exterior storage of equipment,

supplies, or overweight commercial vehicles, nor
parking of more than one (1) business car, pickup truck
or small van, nor any additional vehicles except one
business car, pickup truck or small van, nor any
additional vehicles except those for permitted
employees associated with the home business.
(h) There shall be no detriments to the residential

character of the neighborhood due to noise, odor, smoke
dust, gas, heat, glare, vibration, electrical interference,
traffic congestion, number of deliveries, hours of
operation, or any other annoyance resulting from the
home occupation.
3. The church shall work with Listening House to prevent

scheduling of multiple events that, taken together, would
generate considerable traffic and congest neighborhood streets.
4. Hours of operation shall be limited to 9:00 AM to 5:00 PM.
5. Listening House will ensure that guests have left the area
after Listening House has closed and will provide bus fares to
its guests. Listening House staff must be on-site for two hours
before and two hours after the times guests are served at the
facility.
6. Listening House will not allow the consumption of alcohol

or controlled substances anywhere on the First Lutheran
Church properties.
7. Listening House will call emergency services when a guest

is engaged in behavior that is harmful to self or others.
8. Listening House will give notice on a shared Google site of

serious incidents observed that involve their guests.
9. No outdoor patio may exist anywhere on church grounds

during Listening House’s tenancy.
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10. A sign must be posted in a plainly visible location to restrict

after-hours use of the church grounds so as to aid in the
enforcement of trespassing violations by Listening House
guests or other persons when Listening House is closed.
11. Listening House will attend community policing meetings

as invited by the Saint Paul Police Department.
12. Listening House will review on a daily basis their own

camera footage and an online log maintained by neighbors in
order to identify issues of concern and potential intervention.
13. Listening House will post guest policies regarding “good

neighbor” expectations and consequences, including
suspension or barring from Listening House and the
church properties. Such policies must be readily visible to
guests. Also, the policies must be provided to neighbors and
the Zoning Administrator upon request.
14. The number of guests will generally be limited to 20 per

day. If the number of guests exceeds 20 per day more than
twice in any calendar month, notice shall be provided to the
Zoning Administrator within 7 days of the end of said month.
If the number of guests exceeds 20 per day more than four
times in any month, a feasible written plan for reducing the
number of guests on the site as soon as reasonably possible
shall be prepared and provided to the Zoning Administrator
within 30 days of the end of said month for review and
approval. Any such written plan for reducing the number of
guests approved by the Zoning Administrator must be
executed according to the provisions of said plan in order to be
in conformance with this condition of approval.
A true and correct copy of Resolution 18-145 is attached to this Complaint
as Exhibit E.
D. Burden Upon First Lutheran

64. The conditions placed on First Lutheran and the Listening House by
Resolution 18-145 effectively renders their partnership impossible.
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65. The conditions placed on First Lutheran and Listening House by Resolution
18-145 are arbitrary, discriminatory, and capricious.
66. The conditions placed upon First Lutheran by Resolution 18-145 treat First
Lutheran differently than nonreligious assemblies and institutions in the same
neighborhood and zoning district, including but not limited to Metropolitan State
University, Metropolitan State University Library and Learning Center, Dayton’s Bluff
Library, and The Goat Coffee House.
67. The conditions placed upon First Lutheran by Resolution 18-145 compel
First Lutheran to speak and act in ways that are inconsistent with its religious beliefs and
charitable mission.
68. The conditions placed upon First Lutheran by Resolution 18-145 dictate the
way in which First Lutheran can use its property to further its religious beliefs and
charitable mission.
69. The conditions placed on First Lutheran and Listening House do not serve a
compelling purpose. Some of the conditions, particularly the arbitrary limit of twenty-
persons per day, in fact exacerbates Defendant’s alleged purpose by turning visitors in need
back into the neighborhood.
70. The conditions placed on First Lutheran and Listening House by Resolution
18-145 cause a substantial burden on First Lutheran’s religious exercise, specifically its
charitable mission in the following ways:
(a) First Lutheran and its congregation believes, that as part of their
religion, they should serve those in need and be a “friend of the homeless.” Defendant’s
arbitrary, discriminatory, and capricious conditions limit the way in which First Lutheran
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can practice this tenet of its religion, and significantly limits the number of people First
Lutheran can serve.
(b) The vague, arbitrary, discriminatory, and capricious limitations
placed on First Lutheran and its tenant are causing great uncertainty for First Lutheran and
its congregation’s spirit, hope, and mission. Knowing Defendant might decide to dictate
and limit the services First Lutheran can provide as a church calls into question the dozen
or so partnerships it has developed over the years to serve its congregation and the
community. The ambiguity and arbitrariness of the conditions contained in Resolution 18-
145 are causing unrest and uncertainty about First Lutheran’s ability to fulfill its mission
through its current partners or future partners. By enacting arbitrary, discriminatory and
capricious limitations on First Lutheran and its tenants, Defendant is effectively forcing
First Lutheran to cease its religious charitable ministries.
(c) One of the many reasons First Lutheran partnered with Listening
House was for the increased infrastructure and staff available to serve those in need. With
Listening House as a tenant, First Lutheran now has onsite access to full-time staff with
social work degrees, and more part-time staff and volunteers who contribute to First
Lutheran’s own pre-existing social services. By enacting the vague, arbitrary,
discriminatory, and capricious limitations on First Lutheran and its tenants as required in
Resolution 18-145, the Defendant will force Listening House to find an alternate location,
leaving First Lutheran with minimal resources to fulfill its mission.
(d) Many visitors of Listening House also come to church services at First
Lutheran. Just like the neighbor’s assumptions of those visiting the Church Building, the
vague, arbitrary, discriminatory, and capricious conditions placed on First Lutheran and its
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tenants do not take into account a situation where a Listening House visitor might also be
a Wellness Center visitor or a former Listening House visitor that wants to attend a church
service and/or partake in other ministries provided by First Lutheran. Because the
limitations are vague, arbitrary, discriminatory, and capricious, the limitations prevent First
Lutheran from not just from practicing its faith through its mission, but also prevent its
ability to invite new members into its congregation.
(e) First Lutheran and Listening House signed a lease agreement with the
reasonable expectation they could use the Church Building for the charitable services that
are so integral to First Lutheran’s mission and religion.
(f) Defendant’s unreasonable and unexplainable delay in reaching a final
decision regarding Resolution 18-145 caused uncertainty and expense to First Lutheran
and its tenant, including the possibility of losing its tenant and the contracted-for rent for
nine years remaining in the lease term.
COUNT I
Unlawful Substantial Burden in Violation of 42 U.S.C. § 2000cc(A)(1)
(Religious Land Use and Institutionalized Persons Act of 2000)
71. First Lutheran realleges the foregoing paragraphs and incorporates the same
herein.
72. The Religious Land Use and Institutionalized Person Act of 2000
(“RLUIPA”) requires, in relevant part, that: “[n]o 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 the imposition of the burden on that person, assembly, or institution: (A)
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is in furtherance of a compelling government interest; and (B) is the least restrictive means
of furthering that compelling governmental interest.” 42 U.S.C. § 2000cc(a)(1).
73. “Land use regulation” is defined as “a zoning or landmarking law, or the
application of such a law, that limits or restricts a claimant’s use or development of land
(including a structure affixed to land), if the claimant has an ownership, leasehold,
easement, servitude, or other property interest in the regulated land or a contract or option
to acquire such an interest.” 42 U.S.C. § 2000cc-5(5).
74. For purposes of RLUIPA, Defendant constitutes a “government.” 42 U.S.C.
§ 2000cc-5(4)(A)(i), (ii).
75. Resolution 18-145 is an individualized land use regulation within the
meaning of RLUIPA. 42 U.S.C. § 2000cc(a)(2)(B).
76. “Religious exercise” is defined as “any exercise of religion, whether or not
compelled by, or central to, a system of religious belief…[t]he use, building, or conversion
of real property for the purpose of religious exercise shall be considered religious exercise.”
42 U.S.C. § 2000cc-5(7)(A), (B).
77. First Lutheran’s continued use of the Church Building for its charitable
mission – a sincere religious belief of First Lutheran – qualifies as religious exercise under
RLUIPA.
78. First Lutheran entered into a lease agreement with Listening House with the
reasonable expectation the Church Building could continue to be used for First Lutheran’s
religious purposes, including but not limited to its charitable mission of serving low-
income and homeless community members.
21
79. First Lutheran’s reasonable expectation was reinforced by Defendant
through a meeting with Mayor’s office, and later by the Zoning Administrator
Determination of Similar Use dated March 20, 2017, that stated “the use of First Lutheran
Church leasing space to Listening House to provide assistance to low-income, homeless or
lonely adults for hospitality, practical aid and referrals to other agencies for specific
needs…is similar to other accessary [sic] church uses as 463 Maria Avenue.”
80. Defendant’s enactment of Resolution 18-145 thwarted First Lutheran’s
reasonable expectation that it could continue to use its Church Building for religious
purposes, including but not limited to its charitable mission of serving low-income and
homeless community members.
81. Resolution 18-145 substantially burdens First Lutheran’s religious exercise
by, among other things, imposing arbitrary and irrational conditions on First Lutheran and
its tenants, including limiting First Lutheran and Listening House to serving twenty
individuals a day, and requiring First Lutheran and Listening House to restrict access to
the church property and surrounding area, report on a shared Google document incidents
involving individuals on First Lutheran’s property in violation of First Lutheran’s religious
beliefs, and refrain from building a patio while Listening House is a tenant.
82. Resolution 18-145 has caused First Lutheran to suffer delay, uncertainty, and
expense with regard to its intended use of the Property.
83. Resolution 18-145 does not further a compelling governmental interest, and
even if it does, it is not the least restrictive means of furthering the alleged compelling
governmental interest.
22
84. Resolution 18-145 essentially makes it impossible for First Lutheran to offer
its property as a welcoming daytime refuge for people experiencing homelessness as part
of its religious exercise.
85. Therefore, Defendant has implemented a land use regulation in a manner that
imposes a substantial burden on the religious exercise of First Lutheran without furthering
a compelling governmental interest through the least restrictive means, in violation of
RLUIPA, 42 U.S.C. § 2000cc(a)(1).
86. As a direct and proximate result of Defendant’s enactment of Resolution 18-
145 and Defendant’s violations of First Lutheran’s rights under 42 U.S.C. § 2000cc(a)(1)
of RLUIPA, First Lutheran is suffering irreparable harm for which there is no adequate
remedy at law, and will continue to suffer such harm without immediate court intervention,
and is therefore entitled to injunctive relief.
87. Furthermore, as a direct and proximate result of Defendant’s violation of
First Lutheran’s rights under 42 U.S.C. § 2000cc(a)(1) as alleged above, First Lutheran has
suffered and is entitled to recover compensatory and nominal damages, as well as
attorney’s fees.
COUNT II
Unlawful Unequal Treatment in Violation of 42 U.S.C. § 2000cc(b)(1)
(Religious Land Use and Institutionalized Persons Act of 2000)
herein.
89. Under Resolution 18-145, First Lutheran is subject to restrictions and
conditions that Defendant does not require of nonreligious assemblies in the same zoning
district.
23
90. Accordingly, Defendant has violated First Lutheran’s rights as contained in
42 U.S.C. § 2000cc(b)(1) of RLUIPA.
145 and Defendant’s violations of First Lutheran’s rights under 42 U.S.C. § 2000cc(b)(1)
of RLUIPA, First Lutheran is suffering irreparable harm for which there is no adequate
and is therefore entitled to injunctive relief.
92. Furthermore, as a direct and proximate result of Defendant’s violation of
First Lutheran’s rights under 42 U.S.C. § 2000cc(b)(1) of RLUIPA as alleged above, First
Lutheran has suffered and is entitled to recover compensatory and nominal damages, as
well as attorney’s fees.
COUNT III
Violation of the Right of To Equal Protection of the Law and Due Process as
Guaranteed by the Fourteenth Amendment to the United States Constitution
herein.
94. All acts alleged herein of Defendant, its officers, agents, servants, employees,
or persons acting at its behest or direction, were done and are continuing to be done under
the color and pretense of state law. Said acts include the enactment, implementation, and
enforcement of Resolution 18-145.
95. Resolution 18-145, to the extent that it discriminates against certain types of
land uses based solely on religious content of the speech and exercise of those assembling
on the property, violates First Lutheran’s right to equal protection of the law as guaranteed
by the Fourteenth Amendment to the United States Constitution.
24
96. Resolution 18-145 contains conditions that are unconstitutionally vague, in
that those conditions are not defined sufficiently such as to allow persons of ordinary
intelligence to understand the proper meaning of its terms, nor to preclude arbitrary and
discriminatory enforcement of its provisions, thereby violating First Lutheran’s due
process rights under the Fourteenth Amendment to the United States Constitution.
145 and violation of First Lutheran’s Fourteenth Amendment rights to equal protection of
the law and due process, as alleged above, First Lutheran is suffering irreparable harm for
which there is no adequate remedy at law, and will continue to suffer such harm without
immediate court intervention. First Lutheran is therefore entitled to injunctive relief.
145 and violation of First Lutheran’s Fourteenth Amendment rights to equal protection of
the law and due process, as alleged above, First Lutheran has suffered and is entitled to
recover compensatory and nominal damages, as well as attorney’s fees.
COUNT IV
Violation of the Right of Conscience Under
Minnesota Constitution Article I, Section 16
herein.
100. Article I, Section 16 of the Minnesota Constitution provides “[t]he right of
every man to worship God according to the dictates of his own conscience shall never be
infringed… nor shall any control of or interference with the rights of conscience be
permitted.”
25
101. Based on its sincerely-held religious beliefs, First Lutheran states and alleges
that compliance with Resolution 18-145 is inconsistent with and constitutes an
unreasonable burden upon its religious convictions.
102. Resolution 18-145 imposes discriminatory burdens on First Lutheran while
permitting operationally similar nonreligious assemblies to be free of such burdens.
103. Resolution 18-145 overrides and interferes with First Lutheran’s right of
conscience and burden the free exercise of its religious beliefs by requiring it or its tenant
Listening House to restrict access to its property and place of worship and to turn those in
need away, which violates its sincerely-held religious beliefs.
104. Resolution 18-145 does not further a compelling governmental interest.
105. Resolution 18-145, particularly the arbitrary limit of twenty visitors per day,
is not the least restrictive means for effectuating a compelling governmental purpose.
106. Resolution 18-145, as applied to First Lutheran, requires First Lutheran to
violate its mission and its deeply and sincerely-held religious beliefs by forcing it and
Listening House to turn away those in poverty and in need, in violation of First Lutheran’s
rights protected by Article I, Section 16 of the Minnesota Constitution.
145 and violation of First Lutheran’s rights under Article I, Section 16 of the Minnesota
Constitution, First Lutheran is suffering irreparable harm for which there is no adequate
and is entitled to injunctive relief.
108. Furthermore, as a direct and proximate result of Defendant’s enactment of
Resolution 18-145 and violation of First Lutheran’s rights under Article I, Section 16 of
26
the Minnesota Constitution, as alleged above, First Lutheran has suffered and is entitled to
COUNT V
Violation of Free Exercise Clause of Religion as Guaranteed by the First
Amendment to the United States Constitution
herein.
110. The Free Exercise Clause of the United States Constitution provides
“Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof...”
the color and pretense of state law. Said acts include the enactment, implementation and
112. Based on its sincerely-held religious beliefs, First Lutheran states and alleges
that compliance with Resolution 18-145 is inconsistent with and constitutes an
unreasonable burden upon its religious convictions.
113. The restrictions contained in Resolution 18-145 are not neutral or generally
applicable.
114. The text and application of Resolution 18-145 imposes discriminatory
burdens on First Lutheran while permitting nonreligious assemblies to be free of such
burden.
115. Resolution 18-145 substantially interferes with First Lutheran’s right of
conscience and burden the free exercise of its religious beliefs by requiring it or its tenant
27
Listening House to turn those in need away, which violates its sincerely-held religious
beliefs.
117. Resolution 18-145, particularly the arbitrary limit of twenty visitors per day,
is not narrowly tailored to effectuate a compelling governmental interest.
118. Resolution 18-145, as applied to First Lutheran, requires First Lutheran to
violate its mission and its deeply and sincerely-held religious beliefs by forcing it and
Listening House to turn away those in poverty and in need, in violation of First Lutheran’s
rights protected by the United States Constitution.
145 and violation of First Lutheran’s rights under the Free Exercise Clause of the First
Amendment to the United States Constitution, First Lutheran is suffering irreparable harm
for which there is no adequate remedy at law, and will continue to suffer such harm without
immediate court intervention, and is entitled to injunctive relief.
Resolution 18-145 and violation of First Lutheran’s rights under the Free Exercise Clause
of the First Amendment, as alleged above, First Lutheran has suffered and is entitled to
COUNT VI
Compelled Speech in Violation of the Free Speech Clause of the First Amendment
to the United States Constitution
herein.
28
122. The First Amendment protects against the compelled affirmation of any
religious or ideological proposition that the speaker finds unacceptable.
the color and pretense of state law. Said acts include the enactment, implementation, and
124. The requirements in Resolution 18-145 that compel First Lutheran to post a
sign restricting after-hours use of its church grounds and to report “incidents” on a shared
Google site are an unconstitutional abridgement of First Lutheran’s freedom of speech,
because they compel First Lutheran to speak a message that violates its religious beliefs.
sign to restricting after-hours use of its church grounds is unconstitutionally vague and it
could lead to arbitrary enforcement.
126. The requirement that compels notice of “incidents” on a shared Google site
is unconstitutionally vague because the term “incidents” is not defined, it could lead to
arbitrary enforcement and could be over-inclusive.
sign restricting after-hours use of its church grounds and to report incidents on a shared
Google site, facially and as applied to First Lutheran, are content-based in violation of the
Free Speech Clause of the First Amendment.
Google site violate the free speech rights of First Lutheran because compelling this speech
29
creates an unreasonable and disproportionate burden on the exercise of First Lutheran’s
speech without any legitimate justification.
Google site are not narrowly tailored to accomplish a compelling government interest.
Google site violate the free speech rights of First Lutheran because the complement of this
speech creates an unreasonable and disproportionate burden on the exercise of First
Lutheran’s speech without any legitimate justification.
145 and violation of First Lutheran’s rights under the Free Speech Clause of the First
Amendment to the United States Constitution, First Lutheran is suffering irreparable harm
for which there is no adequate remedy at law, and will continue to suffer such harm without
immediate court intervention, and is entitled to injunctive relief.
Resolution 18-145 and violation of First Lutheran’s rights under the Free Speech Clause
of the First Amendment to the United States Constitution, as alleged above, First Lutheran
has suffered and is entitled to recover compensatory and nominal damages, as well as
attorney’s fees.
30
COUNT VII
Violation of the Freedom of Assembly Clause of the First Amendment
to the United States Constitution
herein.
135. The First Amendment protects against the deprivation of the right to freely
assemble for religious purposes.
136. Defendant, through its enactment of Resolution 18-145, has deprived and
continues to deprive First Lutheran and its congregation the right to freely assemble for
religious purposes by forcing First Lutheran to restrict individuals from its property.
137. The restrictions contained in Resolution 18-145 are not neutral or generally
applicable.
139. The restrictions in Resolution 18-145 that compel First Lutheran are not
narrowly tailored to accomplish a compelling government interest.
140. As a direct result and proximate of Defendant’s enactment of Resolution 18-
145 and violation of First Lutheran’s rights under the Freedom of Assembly Clause of the
First Amendment of the United States Constitution, First Lutheran is suffering irreparable
harm for which there is no adequate remedy at law, and will continue to suffer such harm
without immediate court intervention, and is entitled to injunctive relief.
Resolution 18-145 and violation of First Lutheran’s rights under the Freedom of Assembly
Clause of the First Amendment of the United States Constitution, as alleged above, First
31
Lutheran has suffered and is entitled to recover compensatory and nominal damages, as
well as attorney’s fees.
COUNT VIII
Judicial Review of Zoning Decision Pursuant to Minn. Stat. § 462.361
herein.
143. Minnesota Statute § 462.361 provides:
Subdivision 1. Review of action.

Any person aggrieved by an ordinance, rule, regulation, decision or order of
a governing body or board of adjustments and appeals acting pursuant to
sections 462.351 to 462.364 may have such ordinance, rule, regulation,
decision or order, reviewed by an appropriate remedy in the district court,
subject to the provisions of this section.
144. The foregoing statute authorizes judicial review of municipal zoning
decisions pursuant to Minnesota Statute § 462.357.
145. First Lutheran is aggrieved by Defendant’s enactment of Resolution 18-145,
adopting Planning Commission Resolution No. 17-64. Resolution 18-145 resulted from
an appeal process that was untimely and contrary to law. Because the initial appeal was
void as untimely, all decisions resulting from that process are invalid and ineffective.
146. If the appeal process were found to be valid, Defendant’s decision to impose
restrictions on the operations of First Lutheran and its tenant are arbitrary and capricious,
unreasonable, irrational, unsupported by the record and consequently should be deemed
invalid and unenforceable.
147. First Lutheran requests that the Court enter a declaration that the decision is
invalid and unenforceable, and affirmatively rule that Listening House may operate at the
32
First Lutheran location pursuant to the initial approval and conditions imposed by
Defendant’s Zoning Administrator’s Office on March 20, 2017.
PRAYER FOR RELIEF

WHEREFORE, First Lutheran requests that this Court issue an order:
1. Declaring that Resolution 18-145 violates the Minnesota State Constitution,
the United States Constitution, and RLUIPA;
2. Declaring that Defendant had no authority to issue Resolution 18-145 and
that the decision as a matter of law was invalid as it is arbitrary, capricious, unreasonable,
irrational and not supported by the record;
3. Enjoining Defendant, its officers, employees, agents, successors, and all
other persons in concert or participation with them, from imposing or implementing a land
use regulation in a manner that imposes a substantial burden on the religious exercise of
First Lutheran or any other person that is not narrowly tailored to further a compelling
government interest;
4. Enjoining Defendant, its officers, employees, agents, successors, and all
other persons in concert or participation with them, from adopting or enforcing any zoning
law, ordinance, resolution, code, or restriction in a manner that violates RLUIPA;
5. Requiring Defendant, its officers, employees, agents, successors, and all

other persons acting in concert or participation with it, to:
a. Take such actions as may be necessary to restore, as nearly as practicable,
First Lutheran, its congregation and its tenants to the position they would have been but for
Defendant’s unlawful conduct; and
b. Take such actions as may be necessary to prevent the recurrence of such
unlawful conduct in the future, including but not limited to, providing RLUIPA training to
33
Defendant’s personnel, establishing procedures to address complaints of RLUIPA
violations, and maintaining records and submitting reports relating to RLUIPA
compliance;
6. Awarding First Lutheran nominal and compensatory damages pursuant to 28
U.S.C. § 2202, Fed. R. Civ. P. 65, 42 U.S.C. § 1983 and 42 U.S.C. § 2000cc-4;
7. Awarding First Lutheran its attorneys’ fees, costs and expenses pursuant to
42 U.S.C. § 1988(b), 42 U.S.C. §2000cc-4(d), Federal Rule of Civil Procedure 54(d), and
other applicable law; and
8. For any other relief the Court finds just and equitable.
Dated: April 6, 2018 COZEN O’CONNOR
By: /s/Thomas P. Kane

Thomas P. Kane (MN Bar No. 053491)
Heather L. Marx (MN Bar No. 0321163)
33 South Sixth Street, Suite 3800
Minneapolis, Minnesota 55402
Phone: (612) 260-9000
Fax: (612) 260-9080
Email: tkane@cozen.com
Email: hmarx@cozen.com
ATTORNEYS FOR PLAINTIFF
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First Lutheran Church vs. City of St. Paul, Doc. 1 Verified Complaint

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First Lutheran Church vs. City of St. Paul, Doc. 1 Verified Complaint

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CASE 0:18-cv-00954 Document 1 Filed 04/06/18 Page 1 of 35

UNITED STATES DISTRICT COURT

First Lutheran Church, St. Paul, )

(“Defendant”) and states and alleges as follows:

the County of Ramsey, State of Minnesota.

2. Defendant is a Minnesota political subdivision. For purposes of RLUIPA,

Defendant constitutes a “government.” 42 U.S.C. § 2000cc-5(4)(A)(i), (ii).

3. Defendant is governed by a City Council with 7 council members.

JURISDICTION AND VENUE

2000cc-2(f) and 28 U.S.C. § 1331 and supplemental jurisdiction pursuant to 28 U.S.C. §

alleged herein arose in the District of Minnesota.

corporation with the State of Minnesota.

proclaimed a “Friend of the Homeless.” A memorial plaque of Pastor Norelius is

9. First Lutheran’s building (the “Church Building”) is located in the Dayton’s

worship was a true embodiment of their religious commandments.

programs in a thoughtful and incremental fashion.

individuals to a camp in Deerwood, Minnesota, where it provides food, clothing, and

Roots, Young Artist Initiative/YouthTheater and Santo Niño Episcopal Church.

B. First Lutheran’s Partnership with Listening House

disadvantaged, homeless, or lonely.

and use of the Church Building’s “Sanctuary” basement.

19. Listening House’s partnership was welcomed by First Lutheran’s Church

20. Additionally, creating a partnership with Listening House meant First

during the day.

23. In January of 2017, as a product of the above-described discussions,

agreed to host Listening House for 10 years.

i. Defendant’s Grant of Determination of Similar Use

of the request is attached as Exhibit A.

Zoning Administrator granted First Lutheran’s request and issued a Statement of

Church leasing space to Listening House to provide assistance to low-income, homeless or

correct copy of the Determination of Similar Use is attached as Exhibit B.

to other accessory church uses.”

ii. Neighborhood Response

presence in the Dayton’s Bluff neighborhood.

increase in foot traffic, loud, sometimes disrespectful, often intoxicated, sometimes

actively psychotic, sometimes criminally engaged, sometimes threatening, sometimes

homeless and visitors of Listening House.

projects geared towards low-income assistance in the past.

iii. Appeal to Board of Zoning Appeals and Planning Commission

37. Providing notice of a right to appeal a determination of similar use is not

of Zoning Appeals. (“Zoning File 17-060-690”)

invested in Dayton’s Bluff.”

on their way to, or coming from, Listening House.

Listening House’s presence at First Lutheran.

First Lutheran’s mission and presence in the neighborhood.

the issues presented by the Lermas’ appeal.

negotiation efforts. In an effort to foster a more positive relationship with the

up the church for a number of discussion sessions with neighbors.

49. The Zoning Committee reconvened in a closed meeting on September 28,

50. Listening House immediately submitted an objection to the Zoning

51. On October 6, 2017, the Planning Commission discussed the

4. Hours of operation shall be limited to 9:00 AM to 5:00 PM.

6. Listening House will not allow the consumption of alcohol

7. Listening House will call emergency services when a guest

8. Listening House will give notice on a shared Google site of

9. No outdoor patio may exist anywhere on church grounds

10. A sign must be posted in a plainly visible location to restrict

11. Listening House will attend community policing meetings

12. Listening House will review on a daily basis their own

13. Listening House will post guest policies regarding “good

14. The number of guests will generally be limited to 20 per

Resolution 17-64 is attached as Exhibit C.

iv. Appeal to St. Paul City Council

Specifically, First Lutheran objected to Defendant’s conditions stating, “[a]ny conditions