Congregation Kol Ami v. Abington Township

Decision Date16 October 2002
Docket NumberNo. 01-3077.,01-3077.
Citation309 F.3d 120
PartiesCONGREGATION KOL AMI; Elliot Holin, Rabbi v. ABINGTON TOWNSHIP; Board of Commissioners of Abington Township; the Zoning Hearing Board of Abington Township; Lawrence T. Matteo, Jr., In his official capacity as Director of Code Enforcement of Abington Township Board of Commissioners of Abington Township; the Zoning Hearing Board of Abington Township; Lawrence T. Matteo, Jr., In his official capacity as Director of Code Enforcement of Abington Township, Appellants
CourtU.S. Court of Appeals — Third Circuit

Marci A. Hamilton, (Argued), Washington's Crossing, PA, Harry G. Mahoney, Carla P. Maresca, Michael L. Barbiero, Deasey, Mahoney & Bender, Philadelphia, PA, for Appellants.

Jerome M. Marcus, Jonathan Auerbach, Berger & Montague, Philadelphia, PA, Anthony R. Picarello, Jr. (Argued), Roman P. Storzer, the Becket Fund for Religious Liberty, Washington, DC, for Appellees.

D. Michael Fisher, Attorney General, Howard G. Hopkirk, Deputy Attorney General, Calvin R. Koons, Senior Deputy Attorney General, John G. Knorr, III, Chief Deputy Attorney General, Chief, Appellate Litigation Section, Office of Attorney General of Pennsylvania, Harrisburg, PA, for Amicus-Curiae Appellant Commonwealth of Pennsylvania.

Stefan Presser, Larry Frankel, American Civil Liberties Union, Philadelphia, PA, for Amicus Curiae-Appellees the American Civil Liberties Union of Pennsylvania and the American Jewish Committee.

Ronald A. Krauss, Campbell, Campbell, Edwards & Conroy, Wayne, Mark D Stern, American Jewish Congress, New York, NY, for Amicus Curiae-Appellee the American Jewish Congress.

Before BECKER, Chief Judge, ROTH and RENDELL, Circuit Judges.

OPINION OF THE COURT

BECKER, Chief Judge.

Congregation Kol Ami (the "Congregation") is a Reform Jewish Synagogue that desires to relocate to a 10.9-acre parcel of land in the midst of a purely residential section of Abington Township ("Abington" or "the Township") in the Philadelphia suburbs, zoned R-1 residential under the Township Zoning Ordinance. After the Congregation entered into an agreement of sale with the Sisters of Nazareth, the current owners of the property, it sought zoning approval from the Township Zoning Hearing Board ("ZHB") seeking either a variance or a special exception, and alternatively, permission to use the property as an existing non-conforming use. When the Congregation's application was denied by the ZHB, the Congregation, along with its Rabbi, Elliot Holin, filed suit in the District Court for the Eastern District of Pennsylvania against the ZHB, Abington Township, its Board of Commissioners, and its Director of Code Enforcement in both his individual and official capacities, seeking injunctive, declaratory and compensatory relief for alleged civil rights violations pursuant to 42 U.S.C. § 1983. The complaint also alleged a violation of the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000 et seq.; the Municipalities Planning Code, 53 P.S. §§ 11001A-11005A; Article I, sections 3, 7, 20 and 26 of the Pennsylvania Constitution; and the First and Fourteenth Amendments of the United States Constitution. [1a-20a].

Central to the case are certain provisions of the Abington Township Zoning Ordinance whose purpose, under a 1996 Amendment, is "to provide low density, single family, neighborhoods." Under the Ordinance, the R-1 Residential District only permits a handful of uses by right: agriculture, livestock, single family detached dwellings, and conservation and recreation preserve. Similarly, the Ordinance only permits a handful of uses by "special exception," including a kennel, riding academy, municipal complex, outdoor recreation, emergency services, and utility facilities. The Ordinance does not permit churches or other religious institutions in R-1, except those that are legal, nonconforming uses, even by special exception. Nor does it allow a myriad of other uses such as schools, hospitals, theaters, and daycare centers in R-1 Residential Districts. These uses are, however, permitted in other districts in the Township.

The Congregation moved for partial summary judgment on its claim that the Ordinance is unreasonable on its face because it prohibits houses of worship from locating in residential neighborhoods. The District Court granted the Congregation's motion, finding instead that the Ordinance, as applied, violated the Equal Protection Clause of the United States Constitution. The Court reasoned that a "house of worship inherently further[s] the public welfare," and that the Township had no rational reason to allow some uses by special exception, such as a country club subsumed under "outdoor recreation," but not the Congregation. The Court granted injunctive relief, ordering the ZHB to conduct hearings on the Congregation's application for a special exception. The Court denied the Township's motion for reconsideration.

The Township appealed, and asked for a stay of the injunction, both in the District Court and in this Court, but those applications were also denied. The ZHB held the special exception hearing and concluded that the proposed use would not "adversely affect the health, safety and welfare of the community," and that the use was "consistent with the spirit, purpose, and intent of the Ordinance." [3907a]. These are the requirements for a special exception, which must be awarded if they are met. The ZHB thus granted the Congregation a special exception with some limitations aimed at traffic, light pollution, and noise. [3907a-3909a]. Since then, the Township has also approved the Congregation's land development plan. The Congregation, however, has not begun building on the property; it awaits the outcome of the appeal brought in this Court, and one brought in the Montgomery County Court of Common Pleas by neighbors who oppose the synagogue use. For reasons explained at length infra, given the tenor of the District Court's holding, which functionally altered the Township's zoning ordinance and poses a continuing burden on its enforcement, we conclude that the grant of the special exception did not moot the case, hence we reject the Congregation's mootness argument.

The District Court's holding of unconstitutionality rested on its reading of City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), where the Supreme Court concluded that similarly situated group homes were impermissibly treated differently because one home's occupants were mentally handicapped. The District Court in effect read City of Cleburne as standing for the proposition that a municipality's decision to distinguish between land uses is not rational if both uses, permitted and not-permitted, have the same impact on the municipality's asserted goals. In so concluding, the District Court overlooked the threshold step that must be taken under the City of Cleburne analysisthe court must first conclude that the two land uses are "similarly situated."

The Township submits that the Congregation's use is different from the other uses permitted by special exception. It also contends that it had good reason to group churches and other religious institutions in the CS-Community Service District with other institutional uses, such as hospitals and schools, and that it was not irrational to allow outdoor recreation and certain other uses in the R-1 Residential District (by special exception). The Township invokes the well-established principle that, in the federal Constitutional universe, federal courts accord substantial deference to local government in setting land use policy, and that only where a local government's distinction between similarly situated uses is not rationally related to a legitimate state goal, or where the goal itself is not legitimate, will a federal court upset a local government's land use policy determination. It argues that the distinction between religious uses and other uses is not only rational, but that under the District Court's analysis, any use, or at least any religious use with a similar impact, can automatically locate in the R-1 Residential District with special exception thereby giving a preference to religion, in contradiction of the principles of local land use law.

The Township's arguments are forceful, but we will not resolve them here, because the District Court did not address the similarity of uses question, and the Abington Ordinance is not so clearly drafted that we may definitively determine what uses are permitted by special exception on our own. Put differently, because the District Court failed to evaluate whether the Congregation was similarly situated, i.e., similar in "kind," to the uses that are currently permitted in the R-1 Residential District we must vacate its order and remand so that the proper inquiry may be conducted. Since the special exception hearing was held pursuant to an improper order by the District Court, the resulting grant of special exception by the ZHB and the land use permit issued by the Township are null and void.

I. Facts and Procedural History

The Congregation is a Reform Jewish Synagogue, founded in 1994, which conducts religious services, Hebrew classes, and other related activities at various locations in eastern Montgomery County. The Township is a political subdivision located in eastern Montgomery County. It operates pursuant to the First Class Township Code of Pennsylvania, 53 P.S. § 55101 et seq., and with respect to zoning, subdivision and land use matters, in accordance with Pennsylvania Municipalities Planning Code, 53 P.S. § 10101 et seq. The ZHB has jurisdiction to hear and render final adjudication on, inter alia, applications by landowners for variances from and special exceptions under the Township's Zoning Ordinance. The ZHB and the Township are separate entities. As we...

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