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A federal judge has struck down a small town in Pennsylvania’s ordinance that flatly prohibits houses of worship from locating in its residential districts after concluding there is no rational basis for barring a synagogue or church while allowing other institutions to apply for exceptions to the law. The ruling in Congregation Kol Ami v. Abington Township is a victory for attorneys Jonathan Auerbach of Philadelphia’s Berger & Montague and Roman P. Storzer and Anthony R. Picarello of the Becket Fund for Religious Liberty in Washington, D.C. In his 12-page opinion, Senior U.S. District Judge for the Eastern of Pennsylvania Clarence C. Newcomer concluded that Abington Township’s zoning board violated the constitutional rights of the 200-family Reform Jewish congregation by refusing to consider its request for a “special exception” to the ordinance. “Not only does a house of worship inherently further the public welfare, but defendants’ traffic, noise and light concerns also exist for the uses currently allowed to request a special exception,” Newcomer wrote. Because the zoning board failed to consider whether traffic, noise, light or other disruptions truly warranted the denial of a special exception for the congregation, and because it failed to apply the ordinance “in a way that accounts for that ordinance’s differing treatment of Kol Ami from the other permitted uses by special exception,” Newcomer found that the board had violated the congregation’s constitutional rights. “Indeed, there can be no rational reason to allow a train station, bus shelter, municipal administration building, police barrack, library, snack bar, pro shop, club house, county club or other similar use to request a special exception under the 1996 ordinance, but not Kol Ami,” Newcomer wrote. According to court papers, Abington passed an ordinance in 1978 that created a residential zone that allowed single family detached dwellings as well as township administrative buildings, public libraries, parks and play or recreational areas. Under the original ordinance, religious institutions were permitted by special exception of the zoning board. But in 1990, the township amended the 1978 ordinance to eliminated all uses “by right” except for single family detached dwellings. It also eliminated all uses previously allowable by special exception including religious ones. New amendments in 1996 again allowed single family detached dwellings “by right” and added several other categories to that list — agriculture, livestock, conservation and recreation preserve. It also provided for several uses by special exception — kennel, riding academy, municipal complex, outdoor recreation, emergency services and utility facility. The ordinance defined the allowable special exceptions to include police barracks, libraries, swimming pools, ball courts, tennis courts and ball fields. It also allowed for recreational “accessories,” such as snack bars, pro shops, clubhouses and county clubs. But houses of worship were not included in the list. The township said its purpose in passing the ordinance was to further the goals of the township’s “Comprehensive Plan.” First enacted in 1977, it was designed as a “guide to orderly township development in promoting health, safety, welfare and convenience of the people” and to “chart a course for growth and change.” In August 1999, the Kol Ami congregation entered into an agreement with the Sisters of the Holy Family of Nazareth to purchase a 10.9-acre property on a 30-foot-wide cul-de-sac road. The property contained several buildings including a 250-seat chapel, and the Sisters had used the property as a convent and as a place of worship from 1957 to 1995. In 1995, the Sisters leased the property to the Greek Orthodox Monastery of the Preservation of Our Lord for similar uses. In January 2000, the Kol Ami congregation asked the zoning board for a special exception to use the property as a place of worship, saying its membership could grow from 201 households to 350 households in five years. It also said it planned to expand the existing parking from 20 spaces to at least 137 spaces. The zoning board heard evidence that plaintiffs’ proposed use would increase the traffic in the neighborhood from eight to 121 vehicles during peak afternoon hours, and from four to 109 vehicles on Saturdays. In March 2001, the zoning board denied the requests, finding that the proposed use would differ from the Sisters’ use. It also found that the congregation’s use would cause more traffic, noise and other neighborhood disruptions than the Sisters’ use. The congregation responded by filing a seven-count federal lawsuit. It alleged that the ordinance violated its rights to the free exercise of religion under the First and 14th amendments; its rights of “freedom of conscience” under the Pennsylvania Constitution; its free speech rights under the First Amendment and the Pennsylvania Constitution; its federal and state rights to equal protection; and its federal due process rights. Newcomer found that courts have long insisted that “zoning regulations must bear a substantial relation to the public health, safety, morals or general welfare, and that legislators may not impose restrictions that unnecessarily and unreasonably interfere upon the use of private property or the pursuit of useful activities.” Newcomer found that the U.S. Supreme Court’s 1985 decision in City of Cleburne v. Cleburne Living Center was especially instructive. In City of Cleburne, the justices confronted a zoning ordinance that required special use permits to operate a group home for the mentally retarded in a residential district, yet did not require such permits for apartment houses, boarding and lodging houses, dormitories, hospitals, nursing homes and other similar facilities. The high court decided there was no rational reason to impose a permit requirement on a home for the mentally retarded, but not the other places listed in the ordinance. Newcomer found the same logic applied in Kol Ami’s case. “In that case, just as in the instant case, the defendant city argued that the ordinance was aimed at avoiding concentration of population and at lessening congestion of the streets. However, the Court concluded that ‘these concerns obviously fail to explain why apartment houses, fraternity and sorority houses, hospitals and the like, may freely locate in the area without a permit.’” Abington’s lawyer, Harry G. Mahoney of Deasey Mahoney & Bender, argued that the ordinance properly precluded Kol Ami from requesting a special exception because Kol Ami’s presence on the property would cause traffic, light pollution and noise to increase. Newcomer disagreed, saying the zoning board had, in fact, failed even to consider whether any of the traffic, light and noise issues truly warranted a denial of the request. Instead, Newcomer said, the zoning board concluded that the ordinance didn’t allow for any special exceptions for places of worship. As a result, Newcomer found that the ordinance failed the rational-basis test. The township, he said, articulated no reasons for allowing special exceptions for numerous institutional uses — ranging from police stations and libraries to swimming pools and snack shops — but excluding a house of worship.

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