The Law

Church Stays by Ron Davis A church will be allowed to operate at an Ohio shopping center despite strong protests by one of the center’s owners. The shopping center, located in Wilmington, is divided into three parcels. The owner of one of those parcels leases space to a pharmacy and other small retailers. A supermarket had operated in the remaining portion of the center, but had recently vacated the premises. To replace the supermarket tenant, the owner of that property accepted a church group’s offer to buy the space for religion-related purposes. That transaction did not sit well with the co-owners of the property. They argued that the center’s usage agreement for that space restricted occupancy to a supermarket. As for the prohibited uses of the space, however, they are several in number. They are “a movie theater or cinema, state or local unemployment office, nightclub, bingo parlor or bowling alley, any nonretail business (except those consistent with community standards), any retail business selling used merchandise (except rent-to-own furniture and appliance stores), any lounge, restaurant, or game parlor.” However, no mention among those prohibitions is made of church operations or activities. An Ohio court therefore found that the operation of a church at the shopping center is not prohibited by the agreement between the co-owners of the property or the zoning laws of the city of Wilmington. The co-owner of the property appealed that finding, arguing that the court should have looked to the agreement as a whole. That agreement, the co-owner added, clearly shows that a church is prohibited from operating on the property. On appeal, the issue became that of interpretation of the contract agreement between the two parties. Key to that interpretation was the contract wording prohibiting “any non-retail business except those…consistent with community standards.” The appellate court decided that a church does not qualify under that restriction, “as a church is not a business.” Explained the court, “Further, even if a church is a business, we find that a church is ‘consistent with community standards.’” Moreover, the court added, “there are no other provisions in the agreement which expressly prohibit churches…. To be enforceable, a covenant must expressly prohibit the restricted use. The general language in the agreement [between the two center owners] that refers to the property as a shopping center might show that the parties intended the property to be used for retail. This is not enough to prohibit all uses that are inconsistent with retail stores such as a church…. If the parties wished to restrict churches from operating at the center, they should have expressly stated this in unambiguous language.” (Fettro v. Rombach Center, LLC, 2013 WL 2423797 [Ohio App. 12 Dist]) Decision: June 2013 Published: June 2013