Minturn to review decision on mikvah project
Hearing set for commission review of decision made by town planner
The Minturn Planning Commission will hear an appeal Tuesday to a decision allowing for a redevelopment project in the 100 block of Main Street.
The appellant has objected to creation of a ritual bathing house known as a mikvah at the rear portion of the property for use by members of the not-for-profit Chabad Vail, a local religious organization.
The town planner has found the mikvah portion of the development to fit the definition of a club, which is allowable under town code. The property is zoned within the Old Town Character Area 100 Block Commercial Zone District, and the properties there were indeed part of the old town.
The property being reviewed for redevelopment, located at 151 Main St., is occupied by The Uptown Store, which sells gifts and accessories and incorporates the building’s 100-year history into the lore of its shop. The Uptown Store has been there for more than a decade, and in that time, the family who owned that building and several other properties in the area sold the units to the local arm of The Morgan Reed Group in a multi-million dollar transaction.
The Uptown Store remained for years following the deal, but property again changed hands in 2021, and is now slated to be demolished under the redevelopment project. In addition to the mikvah, the project would also involve the creation of ground/street level commercial space fronting Main Street.
The town’s planning commission makes decisions on appeals; a special meeting has been set for Tuesday at 6 p.m.
Club or church?
The appellant, Minturn resident Kelly Toon, is a local architect who also objected to the demolition of the building formerly occupied by bike shop Mountain Pedaler in 2019.
“Anybody that says old buildings are too far gone to be saved has obviously never worked a day of construction in their lives,” Toon said. “I do believe this is a total missed opportunity for the developers. I don’t believe they understand how the community of Minturn feels about the downtown. They should’ve done all their research on who we are, what we want, and what we believe in and our pride of our buildings, our heritage, our charm, our character and our history. They have no respect for any of these things.”
Citing town code section 16-3-60 and Wikipedia, Toon, in his appeal, said a mikvah is more analogous to a church than a club.
“This type of use in the downtown landscape would be detrimental to the surrounding businesses as well as the vibrancy for the entire community,” Toon said.
Citing town code section 16-2-20 and the Oxford Dictionary, the representative for Chabad Vail said the best definition for what they were doing would be a club.
“The existing commercial space fronting on Main Street would be rebuilt in a similar manner and on the rear portion of the lot would be a ‘mikvah,’ which is a ritual bath space for men and women,” said Kyle H. Webb with KHWebb Architects.
Town code section 16-2-20, says “Church means a building or structure, or groups of buildings or structures, that by design and construction are primarily intended for conducting organized religious services and associated accessory uses,” while “Club means any nonprofit organization exclusively serving members and their guests whose facilities are limited to meeting, eating and recreational uses; and further, whose activities are not conducted principally for monetary gain.”
Town code 16-3-60 says churches are not among the permitted uses on the old town character area zone district.
In his determination that a mikvah is more similar to a club use than a church use, Planning Director Scot Hunn said in a memo, “Unlike a church or synagogue, a mikvah is not designed to accommodate large groups of people, or to facilitate organized services or other large gatherings. To the contrary, a mikvah is expected to have much lower and more sporadic visitation rates or use on a daily, weekly and monthly basis, similar to a club.”
The question of the Religious Land Use and Institutionalized Persons Act, and if it’s applicable in this case, has also been examined by attorneys at the request of Minturn.
The Religious Land Use and Institutionalized Persons Act, better known as RLUIPA, was adopted in 2000 with the intent of prohibiting government from imposing burdens on or denying equal terms to religious land-use applicants.
“The law has led to a significant number of federal civil rights claims in the past two decades, mostly against local governments,” attorneys with Karp Neu Hanlon pointed out in a memo to the town. “If a nonreligious use is permitted in a zone district, but a similar religious use is not, the land use regulation runs afoul of RLUIPA.”
Attorneys with Robinson & Cole, LLP, said while revenue maximization and downtown revitalization have been found to be legitimate zoning criteria to compare religious and nonreligious uses, a municipality must be careful not to treat some not-for-profit institutions better than religious institutions.
“For example, in one case, two Orthodox Jewish groups sought to locate in the town’s business zone, sued the town and prevailed because social clubs, lodges, and theaters were permitted in the zone, but religious uses were prohibited,” Robinson & Cole attorneys said in a memo to the town. “In that case, the town lacked a compelling interest to justify any differential treatment because “(t)he proffered interests of retail synergy are not pursued against analogous nonreligious conduct, and those interests could be achieved by narrower ordinances that do not improperly distinguish between similar secular and religious assemblies.”