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Congregation Kol Ami v. Abington Township

Since its founding in 1994, Congregation Kol Ami has held worship services and other religious activities at a variety of temporary locations in the greater Philadelphia area. In 1997, it began searching for a permanent location, giving priority to identifying a site with existing structures readily adaptable to religious use. In early 1999, it began negotiations for the purchase of a property owned by the Sisters of the Holy Family of Nazareth, a Catholic order of nuns, located at 1908 Robert Road in Abington Township, just outside of Philadelphia, Pennsylvania.

In March, 2001, the Abington Township Zoning Hearing Board refused to allow the congregation to use the facility for religious purposes, denying permission to continue "the prior nonconforming religious use of the Sisters' property," despite the fact that it had granted such permission just five years earlier to a different religious group based on the same set of facts.

The Sisters had bought the property in the 1950s, and converted it for institutional use as a convent, for religious services, retreats, and other religious events and ceremonies. In 1957 they added a Chapel that seats some 250 persons, and a dormitory, which accommodated up to eighty nuns. The property also includes a library, a meeting hall and a dining room. The chapel and other structures occupy about 27,000 square feet.

At the time the Sisters took over the property, it was located in a "V" Residential Zoning District, where religious uses were permitted by special exception. In 1995, the Sisters leased the property to the Greek Orthodox Monastery of the Presentation of Our Lord into the Temple, and in May, 1996, the Zoning Hearing Board of Abington Township granted a variance for their use of the property and noted that the Sisters, who had most recently used the facility "as a convent," wanted to "sell the property for a similar nonconforming use." The Orthodox monks used it until 1999 as a monastery, for religious services and family retreats, prayer groups and academic activity. When they decided they would not be able to purchase the facility, they vacated it in September, 1999.

Over the years, Township zoning laws were modified, and today, according to the complaint, "Abington Township has completely eliminated the possibility of new places of worship from locating in residential districts as permitted, conditional or special exception uses." Existing churches have been allowed to remain, and 26 Christian churches (Baptist, Methodist, Pentecostal, Presbyterian, Christian Science, Mennonite, Reformed, African M.E., Mormon, Episcopal, Lutheran and Catholic) are presently located in residential areas in the township.

But there is not a single Jewish synagogue or other non-Christian place of worship in any residential area. In fact, only one other synagogue exists in the township (in a "PB," or "Planned Business" district), although Abington Township's Jewish population comprises approximately 20 percent of its population. During hearings on Congregation Kol Ami's application, some neighbors objected to the congregation's proposed use regardless of any conditions that might be imposed, and one stated flatly, "I don't want a synagogue in my backyard." The ZHB Opinion and Order issued in March, 2001 rejected as "not credible" the testimony of those who had favored granting the application, even questioning the testimony of Sister Michael Ann Delaney, Provincial Superior of the Sisters of the Holy Family of Nazareth, regarding the religious uses of the property.

On April 18, 2001, Congregation Kol Ami sued Abington Township. The complaint (PDF format) alleges violations of the U.S. and Pennsylvania Constitutions and federal and state law, including the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"). The township and its officials are accused of discrimination "against religious assembly uses, and in favor of nonreligious assembly uses in most of its zoning districts,:" discrimination "against Jewish places of worship," unreasonable limitation of places of worship within the R-1 District and other residential districts, actions that "were arbitrary, capricious and unreasonable" and "not justified by any compelling interest."

The Becket Fund for Religious Liberty is representing the congregation in the lawsuit, together with local attorneys Jonathan Auerbach, of Berger & Montague (a Philadelphia firm known for expertise in complex, high-profile litigation, including its role as lead counsel on behalf of Holocaust survivors against the largest Swiss banks, and slave labor cases brought against some of the largest German industrial companies), and Peter Friedman, of Jaffe, Friedman, Schuman, Sciolla, Nemeroff & Applebaum.

On May 11, 2001, a motion for a preliminary injunction that would permit the congregation to celebrate the Jewish Festival of Shavuot beginning on May 27 was filed with the court. On May 22, the Township filed an answer to plaintiffs' motion. On May 23, Judge Clarence Newcomer informed counsel that he would not grant a preliminary injunction, but proposed a trial date of July 24.

On June 13, 2001, The Becket Fund and local counsel filed a motion for partial summary judgment. The memorandum in support of the motion for partial summary judgment (PDF format, 141 K) provides significant additional information. On July 2, The Becket Fund and local counsel filed a memorandum of law in opposition to defendant's motion to dismiss (70 pages, PDF format, 294 K). The posted document is a corrected version of the memorandum filed with the court on July 5.

On July 11, 2001, Judge Newcomer granted our motion for partial summary judgment (PDF format, 484K). In doing so, he held that an Abington Township zoning ordinance that prevented Congregation Kol Ami from occupying and using a former Catholic convent as a place of worship was unconstitutional as applied to Kol Ami. He granted The Becket Fund's motion on the basis of violations of the First and Fourteenth Amendments to the U.S. Constitution. Further information can be found in the July 11 court memorandum (PDF format, 484K), also available on the court's website.

On July 20, the judge issued an order denying defendants' motion for reconsideration (PDF format, 58K) of his July 11 order, and directed that the Abington Township Zoning Hearing Board hold immediate hearings on Kol Ami's request for a special exception. [Lexis subscribers should use this location information: 2001 U.S. Dist. LEXIS 9690 (E.D. Pa. July 11, 2001).]

On August 3, Judge Newcomer denied Abington Township's request for a delay in hearings on Kol Ami's request for a special exception, and also denied a petition to stay those hearings pending appeal. On August 6, the U.S. Circuit Court of Appeals for the Third Circuit denied virtually the same petition for a stay, and referred Kol Ami's motion to dismiss the Township's appeal to its merits panel. The Zoning Hearing Board began its hearing on the Kol Ami application on Monday, August 6, and completed them on August 10. On August 15, 2001, the Board granted Congregation Kol Ami's application for a special exception permit. Additional detail can be found in our news release of August 16. Shortly afterward, neighbors of the convent appealed the ZHB's decision in local court in Pennsylvania. The Becket Fund intervened in that case on behalf of Kol Ami, and it remains unresolved.

In the meantime, Abington Township appealed the District Court order, but the Third Circuit rejected the appeal on procedural grounds. The Township then filed a motion to reopen the appeal, which was granted by the Third Circuit on February 8, 2002.

Congregation Kol Ami filed an application for a land use permit that would allow it to occupy and use the disputed property. On April 11, the Abington Board of Commissioners voted unanimously to approve the Congregation's land development plan. But the Township's appeals in both federal and county court are still pending, leaving Congregation Kol Ami little choice but to wait to proceed with purchase and development of the property until the appeals are exhausted.

On April 19, Congregation Kol Ami filed its brief with the Third U.S. Circuit Court of Appeals (PDF format, 233K). Amicus briefs supporting Kol Ami have now been filed by Pennsylvania Attorney General Mark Fisher (PDF format, 91K), the ACLU (PDF format, 188K), and the American Jewish Congress (PDF format, 171K).

On July 29, 2002, a three judge panel of the 3rd Circuit held a hearing on the appeal. Becket Fund Vice President and General Counsel Anthony Picarello represented Congregation Kol Ami, and law professor Marci Hamilton represented the Township.

On October 16, 2002 a three-judge panel of the Third Circuit vacated Judge Newcomer's decison (PDF format, 104K) and remanded the case for further consideration. It rejected his equal protection analysis, and wrote that, "While the Supreme Court has not yet directly addressed the constitutional incidents of municipal restrictions on use of land by religious institutions, its application of the rational basis test in cases involving other alleged liberty restrictions by municipalities exercising land use authority suggests that the same highly deferential standard of review is applicable here." It directed the lower court to use both parts of the Supreme Court's two-part test in City of Clebourne, saying the lower court failed to ascertain whether other permitted uses in the R-1 zone truly are "similarly situated" with regard to a religious institution.

On October 30, 2002, Congregation Kol Ami asked the full appeals court to rehear the case en banc. The petition for rehearing (PDF format, 65K) argued that the three-judge panel created "a novel equal protection analysis" that is in direct conflict with City of Clebourne. It also argued that "the Panel opinion would discard over fifty years of settled federal due process precedent prohibiting local governments from banning houses of worship in all residential zones in a jurisdiction." The Third Circuit denied the petition on November 14.

On January 29, 2003, Abington Township moved for summary judgment, arguing (among other things) that RLUIPA is unconstitutional. The U.S. Justice Department intervened, and on March 14, filed its opposition to the Township's motion. Also on March 14, Congregation Kol Ami filed its memorandum of law in opposition to the motion for summary judgment (PDF format, 428K). It termed the Township's motion "an exercise in exaggeration, distortion and glaring omission," and noted that in asking the court to declare RLUIPA unconstitutional, "they avoid any reference whatsoever to the recent decision of this Court in Freedom Baptist Church v. Middletown Township, which has already rejected the very same constitutional challenges."

On March 27, Congregation Kol Ami submitted an additional brief (PDF format, 36K) dealing with two recent cases in which U.S. District Courts had found RLUIPA prisoner provisions unconstitutional on Establishment Clause grounds. "When similar Establishment Clause arguments were raised against RFRA — which was even more protective of religious exercise (and only religious exercise) — every single Court of Appeals, and all but one sitting Justice of the Supreme Court, rejected those arguments. . . until two months ago, every Establishment Clause challenge against RLUIPA had been rejected."

On November 24, 2003, Congregation Kol Ami completed the sale of the property, purchasing the 10.9 acre tract for just over $1 million. Kol Ami President Ben Long said that the completion of the purchase "sends a strong message that we are committed to continuing our goal of establishing a permanent home at the Vila Nazareth property."

Media Coverage:

Kol Ami sale finalized, cases continue (Times Chronicle/Glenside News, by Linda Finarelli, November 28, 2003)

Churches vs. Homeowners (Christianity Today, by Todd Hertz, October 23, 2002)

Philadelphia suburb can keep churches, temples out of residential areas (Associated Press, as posted on Freedom Forum website, October 17, 2002)

Appeals Court reverses ruling on Synagogue's move (Philadelphia Inquirer, by Oliver Prichard, October 17, 2002) [Link to Philly.com archives]

Abington zoning fight reaches appeals court (Associated Press story by Maryclaire Dale, as published in The Philadelphia Inquirer, July 30, 2002) [Link to Philly.com archives]

Brief Friends: AG Fisher, ACLU Argue on Same Side in Abington Zoning Case (The Legal Intelligencer, by Shannon P. Duffy, as posted on law.com, May 1, 2002)

Brief filed supporting Kol Ami (The Record, by Melissa Milewski, May 1, 2002) [Link to phillyburbs.com archive]

Kol Ami land development clears another hurdle (Times Chronicle/Glenside News, by Linda Finarelli, April 5, 2002)

Planners approve Kol Ami proposal (Times Chronicle/Glenside News, by Linda Finarelli, January 25, 2002)

Abington commissioners hear arguments for and against Kol Ami (Times Chronicle/Glenside News, by Linda Finarelli, January 18, 2002)

Residents speak out on Kol Ami (The Intelligencer, by John Corcoran, January 13, 2002) [Link to phillyburbs.com archive]

Neighborhood dispute (The Intelligencer-Record, unsigned newspaper editorial, January 13, 2002) [Link to phillyburbs.com archive]

Kol Ami Gets Some New Supporters (Jewish Exponent, by Steve Feldman, January 10, 2002)

ACLU, state siding with synagogue (Philadelphia Inquirer, by Margie Fishman, January 9, 2002) [Link to Philly.com archives]

Unusual alliance in zoning issue (Bucks County Courier Times, by John Corcoran, January 8, 2002) [Link to phillyburbs.com archive]

Reform Jews Seek Synagogue in Philly (Associated Press as posted by yahoo.com, by Joann Loviglio, January 8, 2002)

Support for synagogue (The Intelligencer-Record, by John Corcoran, January 8, 2002) [Link to phillyburbs.com archive]

Kol Ami supporters preparing petition (Times Chronicle/Glenside News, by Randi Mackey, January 2, 2002)