Daily Development for Tuesday, July 10, 2001

Daily Development for Tuesday, July 17, 2001

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

I got this from Max Lieberman at the recent DIRT lunch in Philadelphia. Although only a trial court opinion, the application of the City of Cleburne case is an interesting one.

CONSTITUTIONAL LAW; EQUAL PROTECTION; RELIGIOUS INSTITUTIONS: Zoning ordinance that does not permit places of worship in residential district by special exception but does permit municipal complexes, police barracks, train stations and outdoor recreations facilities such as swimming pools, golf courses, etc., is facially unconstitutional.

Congregation Kol Ami v. Abington Township, et al. C.A., 011919 (E.D. Pa. 2001).

The property in question is a 10.9-acre tract on a cul-de-sac. It had continuously been used as a religious institution since 1957, being owned by the Sisters of the Holy Family of Nazareth and used as a convent. The property contained several buildings, including a 250-seat chapel.

Township’s first zoning ordinance, adopted in 1978, allowed places of worship as a special exception. In 1990, the ordinance was amended to prohibit all uses by right or special exception in the district except single-family detached homes. In 1995, the Sisters leased the property to a Greek Orthodox Monastery. In 1999, Plaintiff, a Reform Jewish Congregation, signed an agreement to purchase the property for use as a Synagogue and Hebrew School. It applied to the Zoning Hearing Board for permission to continue the use, or a special exception or variance.

The Zoning Hearing Board denied the application to continue the use because of greatly increased traffic, and denied the special exception on the ground that the ordinance did not allow religious uses by special exception in that district, and denied the variance request for lack of "legal justification."

Plaintiffs, rather than appealing to the Court of Common Pleas, sued in federal court under 42 U.S.C. §1983 alleging constitutional violations, as well as under the statute that prohibits municipalities from unduly burdening religious institutions.

On plaintiffs' motion for partial summary judgment on the constitutional claims, the district court found that the ordinance was facially unconstitutional because it bore no reasonable relation to any legitimate state interest. The court analogized to the facts of City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), which held that an ordinance that permitted apartment and rooming houses but not group homes for the mentally retarded was an unconstitutional violation of the equal protection clause. Because Abington's ordinance treated the plaintiff congregation differently from train stations, police barracks, and the like, it denied plaintiffs' equal protection rights.

The court noted that the Township had not evaluated specifically whether grounds for a special exception existed. Therefore, the Township did not consider the various negative impacts to be expected from Plaintiff's proposed use. All it found was that there was no provision for a special exception for religious institutional uses. The court determined that it would not evaluate this case as a First Amendment case, but instead review the decision on the grounds of whether there was any rational basis for the Township's to refuse to consider special exceptions to religious institutions, but to allow such consideration for municipal complexes, police barracks, train stations and outdoor recreations facilities such as swimming pools, golf courses and riding academies. The court commented that the uses that the Township will consider for special permit use generate no more harmful impacts, in general, than would a place of worship. Further, anticipating the argument that the uses that the Township would consider were beneficial to the public welfare, the court noted that "a house of worship inherently further[s] the public welfare."

Reporter's Comment 1:

The court states "a house of worship inherently further[s] the public welfare . . .". Is this necessarily so in all circumstances? It seems as if the court is replacing the legislature's determination of this issue with its own values.

Reporter Comment 2:

There are facts not alluded to in the court opinion. First, although the property in question is located in Abington, the entrance to the cul-de-sac is in another township. Any increased burden of traffic would largely fall on the adjacent township. Second, as an interesting aside, Kol Ami came into existence when a dispute arose between Rabbi Holin and the congregation, which then employed him. He left, and took 200 families with him. At least some of the nimbys were members of the original congregation as is at least one members of the Abington Township Board of Commissioners.

Editor's Comment 1:

The editor finds it striking that the court concluded that the narrower construction was to view this case as an Equal Protection Clause case rather than a First Amendment case. This would suggest that zoning ordinances will have to be drafted very carefully to avoid constitutional challenge (note that this was a 1983 suit for which attorney's fees and damages may sometimes be allowed.) Whenever some uses can be permitted, even by special permit (or, the editor assumes, what other jurisdictions would call a "variance," the class of uses which can be considered must be defined either very broadly or very narrowly. In the latter case the definition must be limited to permitted uses that have some kind of special distinction in terms of the justification for making a special exception for them.

Could, for instance, commercial activities make the argument that they must also be permitted when municipal activities are permitted? If, as was the case here, the Township will consider special permits for riding academies, should various other sports facilities argue that they also must be considered for a variance?

Editor's Comment 2:

Kol Ami had good counsel here, but a well advised zoning authority, now knowing about this rule, and operating under the proper ordinance, probably can control against granting permits to unwanted uses by a proper hearing and evaluation of those special characteristics that make "this use" undesirable at "this location." Because the question necessarily is so narrowly focussed, it is likely that a court will find the necessary rationale basis for such determinations..

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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