Commercial Church Kitchen as Food Truck Commissary

by Ron Gaus
(St. Louis, Missouri)

Visitor Question: We have spent three years upgrading our church kitchen to meet Health Department requirements for a Commercial Kitchen. Now that we have an A rating on our door, we have solicited Food Trucks to consider us as their required commercial kitchen commissary in order to operate their business within legal parameters (cannot use home kitchens).

To keep their costs low, we would be a shared use commissary with multiple Food Trucks sharing space, primarily for up to 20 hours per week per truck, with some overlapping hours.

However, we have run into at least a temporary roadblock with our city. They have never granted a license, or an approved use, to a church to be a commissary. In fact, there has never been a commissary within our suburban municipality. They are confused and have not yet granted permission to our church to do this.

Does the RLUIPA play into this decision? Has this question ever come up before, as Food Truck businesses gain popularity around the country?

We have a good relationship with the city and want to do the right thing, but we have also invested quite a bit into this concept. Thanks for any advice and input.

Editors Reply: Thanks for the interesting question.

While you state you have the Health Department approval, in almost all cases, that does not necessarily indicate that you have zoning approval.

In virtually every case, a commercial kitchen would need to be a land use that is allowed under the zoning ordinance in the particular zoning district in which your church is located. Churches are permitted uses, or at least on the list for receiving a conditional use permit, in a wide variety of zoning districts, including often residential districts.

However, commercial kitchens typically would require at least commercial zoning, and even sometimes industrial zoning, since technically you are "making" or manufacturing something in a commercial kitchen. In reality a number of zoning ordinances we have administered have treated commercial kitchens as commercial, rather than industrial, since a restaurant kitchen can be substantial.

So that is the first question that your suburb must resolve. Under the zoning ordinance, what zoning districts permit commercial kitchens?

The second matter is simpler. In what zoning district is your church now located? Do you have neighborhood commercial zoning, or multi-family zoning, or any one of many other possibilities?

If a commercial kitchen is not permitted in the zoning district in which your church is located, rezoning is a possibility. As we detail elsewhere, rezoning is a process usually requiring a public hearing in front of a planning and zoning commission, followed by another public hearing in front of the city council or whatever that governing body may be called in your jurisdiction.

Whenever there are public hearings, neighbors and even disinterested parties of course may voice their objections, so we never want to tell people that rezoning is just some kind of paperwork exercise they have to go through.

Depending on your actual physical situation and proximity to neighbors, though, rezoning might not be too difficult to achieve.

You ask if RLUIPA (the Religious Land Use and Institutional Persons Act) gives any protection to the church in this instance. The answer is no. RLUIPA is designed to protect churches from being treated more stringently than other non-profits, from facing tougher standards because of their faith or denomination, and from being prohibited altogether in a city.

In fact, when you established a commercial kitchen, you moved away from any protection that RLUIPA might offer, since the kitchen does not relate to what the legal system would call religious exercise.

We have not heard of this question arising elsewhere, but since there are thousands of zoning actions in the U.S. every month, both administrative and legislative, it would be surprising if no one had ever contemplated this question before.

But if we just think about the issue, it really is not a very hard question. For your sake, since you have substantial investment in this process, we hope that it will be a simple matter of determining that commercial kitchens are permitted in your zoning district, in which case there should be no problem.

Another possibility is that a conditional use permit or special use permit would be required for a commercial kitchen, so those processes often are just as detailed as a rezoning. Sometimes, however, those permits are awarded on the basis of an administrative hearing and therefore quite a bit simpler.

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