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In a major setback for a Reform Jewish congregation that wants to build a synagogue in a Montgomery County, Pa., neighborhood, a federal appeals court has overturned a July 2001 decision that struck down an Abington Township ordinance that prohibits houses of worship from locating in its residential districts. In Congregation Kol Ami v. Abington Township, a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals found that Senior U.S. District Judge Clarence C. Newcomer in Philadelphia was too quick to declare the ordinance unconstitutional. “The federal courts have given states and local communities broad latitude to determine their zoning plans. Indeed, land use law is one of the bastions of local control, largely free of federal intervention,” wrote 3rd Circuit Chief Judge Edward R. Becker. Becker, who was joined by Judges Jane R. Roth and Marjorie O. Rendell, found that Newcomer erred by focusing only on whether a synagogue would have the same “impact” as other institutions that are allowed to petition for a special exception to locate in Abington’s residential districts. Instead, Becker said, Newcomer’s first task should have been to determine whether the congregation was truly “similarly situated” to the other uses. The appellate panel has now ordered Newcomer to study the case again and decide whether a synagogue is similar to any of the uses allowed by special exception, including kennels, riding academies, municipal complexes, outdoor recreation, emergency services and utility facilities. In the remand, lawyers for the congregation are likely to focus on the fact that country clubs are allowed to petition for special exceptions. But township lawyers are likely to argue that a synagogue is more comparable to the list of prohibited uses that includes schools, hospitals, theaters and day care centers. The case was closely watched because it was one of the first uses of the Religious Land Use and Institutionalized Persons Act of 2000. In his July 2001 decision, Newcomer found that there was no rational basis for barring a synagogue or church while allowing other institutions to apply for exceptions to the law. “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. The ruling was a victory for attorneys Jonathan Auerbach and Jerome M. Marcus of Berger & Montague and Roman P. Storzer and Anthony R. Picarello of the Becket Fund for Religious Liberty in Washington, D.C. Newcomer concluded that the township 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. In the appeal, the congregation was supported by friend-of-the-court briefs from both the ACLU and the Pennsylvania attorney general’s office. Lawyers for the congregation argued that the appeal was moot since Abington’s zoning hearing board had already granted a special exception after holding a hearing and concluding that the proposed use would not “adversely affect the health, safety and welfare of the community.” Since then, they said, the township has also approved the congregation’s land development plan. But Abington’s lawyers noted that the congregation has not begun building on the property because it is awaiting the outcome of the federal appeal and a decision in an appeal before the Montgomery County Court of Common Pleas brought by neighbors who oppose the synagogue use. Becker found that the appeal was not moot, because Newcomer’s decision “functionally altered the township’s zoning ordinance and poses a continuing burden on its enforcement.” Since the special exception hearing was held pursuant to Newcomer’s improper order, Becker found, the resulting grant of a special exception and the land-use permit issued should be declared null and void. Becker found that Newcomer’s decision would allow any religious institution to get permission to locate in the residential district “under a burden of proof significantly lower than that required under the ordinance.” He also found that Newcomer’s “categorical determination” that houses of worship further the public interest had “opened the door for other places of worship to request the same treatment — a special exception hearing in residential zones where they are currently excluded.” Since the First Amendment prohibits municipalities from applying their laws differently among various religious groups, Becker found that if Newcomer’s decision were allowed to stand, it would apply “not only in this case, but also in future situations where a place of worship seeks to locate in such a district.”

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