October 22, 2019

Mrs. Catherine Hernandez

Development Services Administrator
City of San Antonio
1901 S. Alamo
San Antonio, TX 78204

Re: Request for Verification of Zoning and Allowable Proposed Uses on an Approximately
5.098-Acre Tract, Generally Located at 3310 E. Commerce St., More Particularly
Described as Lot 7, New City Block 10241 in the City of San Antonio, Bexar County,
Texas (the “Subject Property;” see, Exhibit “1”); Our File No. 10100.001.

Dear Mrs. Hernandez:

On behalf of the Subject Property owner, Second Baptist Church (“Owner”), and the
proposed lessee, VisionQuest National, Ltd. (“Lessee”), please find attached a Zoning Verification
Application for the Subject Property (see, Exhibit “2”). The purpose of this application is to
request verification/confirmation of the following:

1. The Subject Property is currently zoned “AE-3 EP-1 HS MLOD-3 MLR-2”;

2. The existing church and attached supplemental services building (see Exhibit “3”, the
“Church”) is allowed by right within the Subject Property’s current zoning designation;
3. The existing banquet hall, child and adult recreational center, child and adult learning
center, and support building (see Exhibit “3”, the “Community Facility”) is allowed by
right within the Subject Property’s current zoning designation;
4. The Lessee’s proposed use for temporary housing, education, medical and social care
facility for unaccompanied minor children is allowed by right within the Subject
Property’s current zoning designation.

The Subject Property is a 5.098-acre tract located along a heavily traveled commercial and
industrial portion of Commerce Street. Second Baptist will continue to use the Church as it has
been, for worship and services, however, the Owner is proposing to change how the existing
Community Facility is utilized. Since the Community Facility first opened in 2012, it has been
used for educational, recreational, social, religious, and community activities for children and for
adults alike. These activities were undertaken under the direction and ownership of Second Baptist,
and were done in service of Second Baptist’s mission to serve the community, serve children, and
serve the underprivileged, “to walk together in Christian love; to strive for the advancement of this
church, in knowledge, holiness, and comfort; to promote its prosperity and spirituality; to sustain
its worship, ordinances, discipline, and doctrines; to contribute cheerfully and regularly to the
support of the ministry, the expenses of the church, the relief of the poor, and the spread of the
gospel through all nations.”

At this time, the Owner is proposing a lease that would allow the Lessee to provide
temporary housing, healthcare, and educational services to Unaccompanied Alien Children,
minors who crossed the US border without a legal guardian. The Lessee has been awarded the
ability to provide these services through the Federal Government, by the Department of Health
and Human Services, Administration for Children and Families, Office of Refugee Resettlement.
They have been approved to accommodate up to 90 boys between the ages of 11-17 at the Subject
Property while they are transitioning to a more permanent home after leaving detention facilities
at the US border. The length of stay at the Community Facility will approximately range from 30-
90 days. During their stay, the children will be provided educational services, healthcare services
including vision and dental, community engagement and recreation activities. The children will be
supervised 24 hours/day, monitored by security with a staff ratio of 4 children per staff member of
duty, and the applicant will comply will all state and federal code regulations regarding childcare
facilities. Second Baptist feels that the overall service provided to these children is part of and a
continuation of its mission as a religious organization. The use proposed by the Lessee for the
Community Facility should be allowed by right under the current zoning designation and protected
as part of Second Baptist’s use of its property. As means to further elaborate on the Owner’s
religious protections and the full legal implications if they are not allowed to operate as proposed,
an attorney for Second Baptist has prepared the attached letter (see Exhibit “4”), which will be
sent directly to the City attorney’s office following submittal of this application. Therefore, we
respectfully request confirmation that the Lessee’s proposed use as a temporary, migrant children’s
housing and educational facility (as herein described) is allowed by right within the Subject
Property’s current zoning designation and by virtue of the Owner’s status as a religious
organization.

Please do not hesitate to call if you have any questions or concerns regarding this matter.
Thank you for your time and consideration.

Sincerely,

BROWN & ORTIZ, P.C.

BY: ___________________________
James McKnight

Enclosures: as stated

2|Page
Property Identification #: 1175465 Property Information: 2020 Owner Identification #: 346738

Geo ID: 10241-000-0070 Legal NCB 10241 BLK LOT 7 Name: SECOND BAPTIST CHURCH
Situs 3310 E COMMERCE ST SAN Description: (COLISEUM PARK UT-3A) Exemptions: EX-XV
Address: ANTONIO, TX 78220 Abstract: 9639/12-14 DBA: Null
Property Neighborhood: NBHD code11830
Real
Type: Appraised
N/A
State Value:
F1
Code: 09, 10, 21, 06, 08, CAD, 11, 57,
Jurisdictions:
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489284
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489285

48
1192434 489269
489268
489267
489266

1175465
4
489290
489326
457139
457138
457137 489325
457136 489
457135
457134 489324
457133
457132 457152
457131 457151
457130
BCAD, Texas Parks
457150

Bexar CAD Map Search

This product is for informational purposes only and may not have been prepared for or be suitable for legal, engineering, or surveying purposes. It does not represent an on-the-ground survey and
represents only the approximate relative location of property boundaries. The Bexar County Appraisal District expressly disclaims any and all liability in connection herewith.

1
 3310 E Commerce Street: Zoning Map

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Site Plan: 3310 E. Commerce St.

Community
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Subject Property

3
 DALTON + TOMICH
719 Griswold St. Suite 270 Detroit, Michigan 48226
P: 313-859-6000 F: 313-859-8888 www.daltontomich.com

October 22, 2019

Mr. Andy Segocia 4

City Attorney, City of San Antonio
500 Dolorosa
San Antonio, Texas, 78204

Re: Second Baptist Church, 3310 Commerce Street:

Temporary Housing Facility

Dear Mr. Segovia,

Kindly be advised that my firm represents Second Baptist Church located at 3310 E Commerce
St. It has come to my attention that the City is considering preventing my client from operating a
temporary housing facility for needy migrant children. If this is the case, I caution you to reconsider
your current course. Any such denial of Second Baptist Church’s right to exercise its religion
would be in violation of federal and state law.

Second Baptist Church proposes to operate a temporary housing facility for children from South
America who have been stopped at the border and are awaiting relocation to family members in
the United States. As I am sure you are aware, the facilities currently being used to house these
children at the border are overcrowded and insufficient. It is part of Second Baptist Church’s
religious mission to meet the needs of these children by providing them with temporary housing,
food, and educational services.

The proposed facility would be operated in conjunction with Vision Quest. Vision Quest is a
comprehensive national youth services organization that adheres to the highest professional
standards in providing innovative intervention services to at-risk youth. Vision Quest has over 40
years of experience working with the nation’s youth and ensures those youth are safe, respected,
and valued.

I have been informed that some local leaders have objected to Second Baptist Church’s use for
political reasons. This is obviously an improper reason for opposing the use. I have also been
informed that the City is considering withholding zoning approval for my client’s ministry. This
would be a grave error by the City. Federal and state law provide for robust protection of religious
exercise in the land use and housing context. The City should not withhold any approval for my
client’s ministry lest it find itself in violation of these laws.
Mr. Andy Segoica
City Attorney, City of San Antonio, Texas
October 21, 2019
Page 2

I. Denial by the City would place a substantial burden on Second Baptist Church’s
religious exercise.
The Religious Land Use and Institutionalized Persons Act (RLUIPA) is a federal statute enacted
to protect religious organizations against the effects of improper land use decisions. “RLUIPA is
Congress’s latest effort to protect the free exercise of religion guaranteed by the First Amendment
from governmental regulation.” Guru Nanak Sikh Soc’y v. Cnty. of Sutter, 456 F.3d 978, 985 (9th
Cir. 2006). RLUIPA was designed to provide heightened protection for the free exercise of
religion, especially in the area of land use and zoning regulation. Cutter v. Wilkinson, 544 U.S.
709, 714-15 (2005). Congress stated RLUIPA is to be “construed in favor of a broad protection of
religious exercise, to the maximum extent permitted by the terms of this chapter and the
Constitution.” 42 U.S.C. § 2000cc-3(g).

Under the first prong of RLUIPA, the Substantial Burden clause, Congress provided that:

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.

42 U.S.C. § 2000cc(a)(1).

There is no question that preventing Second Baptist Church from operating its proposed housing
facility would violate RLUIPA’s substantial burden provision. Second Baptist Church’s
operation of this facility is clearly religious exercise and preventing it would be more than a “mere
inconvenience.” Indeed, the City would be leaving Second Baptist Church with no alternative to
carry out its ministry and would be forcing it to violate its beliefs. See Castle Hills First Baptist
Church v. City of Castle Hills, No. SA-01-CA-1149-RF, 2004 U.S. Dist. LEXIS 4669 (W.D. Tex.
Mar. 17, 2004).

Further, there can be no serious argument that denial of Second Baptist Church’s right to operate
the facility is the least restrictive means of any compelling government interest. First, there is no
government interest served by discriminating against religious organizations and preventing these
children from having a safe place to live temporarily. Even if there was a compelling government
interest at play, the City is not using the least restrictive means to achieve that interest. There is a
plethora of options available to the City rather than outright denial.
Mr. Andy Segoica
City Attorney, City of San Antonio, Texas
October 21, 2019
Page 3

The City’s current course will lead it to a violation of RLUIPA’s substantial burden prong and
will therefore subject it to injunctive relief, damages, and attorney fees. We advise the City to
correct itself forthwith.

II. The City is treating Second Baptist Church unequally as compared with secular
assemblies and institutions.
RLUIPA’s Equal Terms Clause prohibits imposing or implementing a land use regulation so as
to treat a religious assembly or institution "on less than equal terms" than a nonreligious assembly
or institution. § 2000cc(b)(1). Once a plaintiff establishes a prima facie violation, the burden of
persuasion shifts to the government.

Obviously, Second Baptist Church is a religious institution. Further, the City is in danger of a
violation because it has allowed nearly identical facilities to be established by non-religious
organizations. I have been informed that there are at least six (6) other temporary housing facilities
for migrant children operating in the City. This is clearly “less than equal” treatment. If the City
denies Second Baptist Church’s right to operate this facility, the Church will immediately
establish a prima facie violation of RLUIPA’s Equal Terms provision.

Once Second Baptist Church establishes its prima facie claim, the City cannot hope to meet its
burden of proof to show it has not treated Second Baptist Church unequally. Simply put, there is
no justification for the City to allow secular organizations to operate group home-style facilities
but to deny that same right to Second Baptist Church. See Opulent Life Church v. City of Holly
Springs Miss., 697 F.3d 279, 292-93 (5th Cir. 2012). A denial would put the City in violation of
RLUIPA’s Equal Terms Clause and would subject it to injunctive relief, damages, and attorney
fees.

III. The City’s denial would violate Texas’s Religious Freedom Restoration Act.
The Texas Religious Freedom Restoration Act (RFRA) prohibits government entities like the City
from “substantially burden[ing] a person’s free exercise of religion,” unless the government can
demonstrate that the burden is the “least restrictive means” of furthering a “compelling
governmental interest.” Tex. Civ. Prac. & Rem. Code Sec. 110.003(a)-(b). Someone aggrieved by
a government action under RFRA may seek equitable relief, damages, and attorney fees. Id. Sec.
110.005. Notably, when interpreting the federal Religious Freedom Restoration Act, the Supreme
Court said “RFRA was designed to provide very broad protection for religious liberty,” Burwell
v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2767 (2014), and protects individuals and businesses
alike, id. At 2768-69

As discussed above, denial of Second Baptist Church’s right to operate a group home-style facility
to temporarily house children from the border would unquestionably substantially burden Second
Baptist Church’s free exercise of its religion. It is also clear that the denial would not be the least
restrictive means of further any compelling government interest. Preventing Second Baptist
Mr. Andy Segoica
City Attorney, City of San Antonio, Texas
October 21, 2019
Page 4

Church from operating its proposed facility would place the City in violation of Texas’s RFRA.
The City should abandon its current course.

IV. The City’s denial would not be neutral toward religion.

The First Amendment protects both the free exercise of religion and the right to peaceably
assemble. U.S. CONST. AMEND. I. The right to “assemble with others” to share and promote
religious beliefs is at the core of the free exercise of religion. Emp’t Div. v. Smith, 494 U.S. 872,
877-78 (1990). Laws which “regulate or prohibit conduct because it is undertaken for religious
reasons” clearly implicate the Free Exercise Clause. Church of the Lukumi Babalu Aye, Inc. v.
City of Hialeah, 508 U.S. 520, 532 (1993). And “when a zoning law infringes upon a protected
liberty, it must be narrowly drawn and must further a sufficiently substantial government interest.”
Schad v. Borough of Mount Ephraim, 452 U.S. 61, 67-74 (1981).

While laws that are “neutral and of general applicability need not be justified by a compelling
governmental interest,” Lukumi, 508 U.S. at 531, those that “single out the religious for disfavored
treatment” must withstand the “strictest scrutiny.” Trinity Lutheran, 137 S. Ct. at 2020-22; see
also Am. Atheists, Inc. v. City of Detroit Downtown Dev. Auth., 567 F.3d 278, 302 (6th Cir. 2009).
And when a law “restricts practices because of their religious motivation, the law is not neutral,
and is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that
interest.” Lukumi, 508 U.S. at 532 (internal citation omitted). “A law lacks facial neutrality if it
refers to a religious practice without a secular meaning discernible from the language or context.”
Id. at 533-534.

In addition, laws that are “underinclusive” to a government’s asserted interests are not generally
applicable. See Lukumi, 508 U.S. at 543; see also Hobbie v. Unemployment Appeals Comm’n of
Fla., 480 U.S. 136, 148 (1987) (Stevens, J., concurring in judgment) (The Free Exercise Clause
“protect[s] religious observers against unequal treatment.”). Nor can they be said to be justified
by a compelling interest when only “conduct motivated by religious conviction … bears the
weight of the governmental restrictions.” Lukumi, 508 U.S. at 547.

Here, the City’s current course to deny Second Baptist Church’s right to operate the group home-
style facility for children is not facially neutral or of general applicability. While other group
homes operate and thrive in the City, Second Baptist Church is being targeted for denial because
of its religious nature. Such a denial would be discriminatory and underinclusive.

Since a denial of Second Baptist Church’s proposed facility would not be facially neutral or of
general applicability, the City would need to justify its denial by demonstrating that it was
narrowly tailored to a compelling government interest. As shown above, the City cannot hope to
meet this burden. A denial would clearly violate the First Amendment’s Free Exercise Clause. I
urge the City to depart from this course of action.
Mr. Andy Segoica
City Attorney, City of San Antonio, Texas
October 21, 2019
Page 5

V. A denial of Second Baptist Church’s use would violate the Equal Protection
Clause.
As you are no doubt aware, the Equal Protection clause of the Fourteenth Amendment states that
a governmental body may not deny people equal protection of its governing laws. The government
must treat an individual in the same manner as others in similar conditions and circumstances.

A plaintiff may bring an Equal Protection “class of one” claim if the plaintiff can show that (1) he
or she was intentionally treated differently from others similarly situated and (2) there was no
rational basis for the difference in treatment. Lindquist v. City of Pasadena, 669 F.3d 225, 233
(5th Cir. 2012). The City’s proposed denial would violate the Equal Protection clause.

There would be no question that a denial of Second Baptist Church’s operation of its proposed
facility would be different from the City’s treatment of the six (6) other similarly situated facilities
which operate in the City. The first element of this claim would be easily established.

Further, there is no rational basis for this different and unequal treatment. In a zoning context, the
Fifth Circuit does not require a class of one plaintiff to prove personal animus. See Lindquist v.
City of Pasadena, Tex., 525 F.3d 383, 388 n.2 (5th Cir. 2008). Nevertheless, it is apparent that
there is animus by the City toward Second Baptist Church and its proposed facility. There is
simply no rational basis to deny the Second Baptist Church’s facility while permitting others to
operate. The City cannot hope to prove otherwise.

The City’s denial of Second Baptist Church’s temporary housing facility for children from the
border would undoubtedly violate the Equal Protection Clause. The City must not follow this
course.

VI. A denial of Second Baptist Church’s use would violate the Fair Housing Act.
For many years Congress has made it national policy to eliminate housing discrimination in all its
forms, through the Fair Housing Act of 1968. The original Act (Title VIII of the Civil Rights Act
of 1968, 42 U.S.C. §§ 3601-3619) banned, among other things, housing discrimination on the
basis of race and religion. The Act was amended in 1974 and again in 1988, however, and it was
these latter changes, known as the Fair Housing Amendments Act of 1988 (the "FHAA"), which
form the source of the principal restrictions on local control of the use of group residential homes.

The Act defines discrimination to include not only traditional discriminatory practices, but also
"refusal to make reasonable accommodations in rules, policies, practices, or services, when such
accommodations may be necessary to afford such person equal opportunity to use and enjoy a
dwelling." 42 U.S.C. 3604(f)(3)(B).

The Fair Housing Act makes it unlawful to refuse to sell or rent . . . or otherwise make unavailable
or deny, a dwelling to any person because of race and/or religion. 42 U.S.C. § 3604(a). The phrase
Mr. Andy Segoica
City Attorney, City of San Antonio, Texas
October 21, 2019
Page 6

"otherwise make unavailable" has been interpreted to reach a wide variety of discriminatory
housing practices, including discriminatory zoning restrictions. See, e.g., Huntington Branch,
National Association For the Advancement of Colored People v. Town of Huntington, 844 F.2d
926, 938 (2d Cir.), aff'd, 488 U.S. 15, 102 L. Ed. 2d 180, 109 S. Ct. 276 (1988) (per curiam); Casa
Marie, Inc. v. Superior Court of Puerto Rico, 988 F.2d 252, 257 n.6 (1st Cir. 1993).

An FHA violation may be established on a theory of disparate impact or one of disparate treatment.
See Huntington Branch, National Association For the Advancement of Colored People v. Town
of Huntington, 844 F.2d at 934-35. Under the latter theory, a plaintiff can establish a prima facie
case by showing that animus against the protected group "was a significant factor in the position
taken" by the municipal decision-makers themselves or by those to whom the decision-makers
were knowingly responsive. United States v. Yonkers Board of Education, 837 F.2d 1181, 1217,
1223, 1226 (2d Cir. 1987) cert. denied, 486 U.S. 1055, 100 L. Ed. 2d 922, 108 S. Ct. 2821 (1988).
If the motive is discriminatory, it is of no moment that the complained-of conduct would be
permissible if taken for nondiscriminatory reasons. See, e.g., 837 F.2d at 1218-19 (where site
restrictions on low-income housing were imposed with segregative motive, fact that town had no
duty to provide low-income housing was not significant); United States v. City of Parma, 661 F.2d
562, 574-75 (6th Cir. 1981) (city's abandonment of application for federal housing funds for
racially discriminatory reasons violated FHA), cert. denied, 456 U.S. 926, 72 L. Ed. 2d 441, 102
S. Ct. 1972 (1982).

Discriminatory intent may be inferred from the totality of the circumstances, including "the fact,
if it is true, that the law bears more heavily on one [group] than another," Washington v. Davis,
426 U.S. 229, 242, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976), as well as

the 'historical background of the decision . . . '; 'the specific sequence of events
leading up to the challenged decision,' . . . ; 'contemporary statements by members
of the decisionmaking body . . . '; . . . and 'substantive departures . . . , particularly
if the factors usually considered important by the decisionmaker strongly favor a
decision contrary to the one reached,' Yonkers, 837 F.2d at 1221 (quoting Village
of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252,
267-68, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977)).

Here, the City’s potential denial of Second Baptist’s Church’s facility would clearly violate the
FHA. First, as a temporary facility for migrant children, the Church’s facility would implicate
three protected classes: race/country of origin, religion, and homelessness. There would also be
no question that the City is engaging in disparate treatment of the Church.

The totality of the circumstances points to the inescapable conclusion that the City is
discriminating against the Church’s proposed facility on grounds of religion and race. The public
comments of some local officials would be strong evidence of discrimination in the case of any
denial.
Mr. Andy Segoica
City Attorney, City of San Antonio, Texas
October 21, 2019
Page 7

As with the other claims discussed in this letter, the City’s continued direction toward violation
of the FHA would open it up to liability in the way of injunctive relief and damages. I urge the
City to change course and grant the Church its zoning approval.

VII. Conclusion
In sum, the Church simply wishes to continue its religious mission and minister to the children
impacted by the situation at the southern border. The Church also wishes to avoid expensive and
lengthy litigation with the City. Therefore, I encourage the City Council and the Mayor to reject
any calls to discriminate against the Church’s proposed facility. Federal and state law are clear
that the Church must be treated on equal footing with the other facilities already located in San
Antonio. I look forward to your positive response, and remain,

Very truly yours,

DALTON & TOMICH, PLC

/s/ Daniel P. Dalton

cc. Mike Shannon, Director of Developmental Services

Roderick Sanchez, Assistant City Manager