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ORTHODOX MINYAN ELKINS PARK v. CHELTENHAM TOWNSHIP ZONING HEARING BOARD AND TOWNSHIP CHELTENHAM (01/20/89)

decided: January 20, 1989.

ORTHODOX MINYAN OF ELKINS PARK, APPELLANT
v.
CHELTENHAM TOWNSHIP ZONING HEARING BOARD AND TOWNSHIP OF CHELTENHAM, APPELLEES



Appeal from the Order of the Court of Common Pleas of Montgomery County, in the case of Orthodox Minyan of Elkins Park v. Cheltenham Township Zoning Board and Township of Cheltenham, Intervenor, No. 87-02093.

COUNSEL

Hillel Lewis, with him, Abraham Leizerowski, Gerald Jay Pomerantz & Associates, P.C., for appellant.

Gilbert P. High, Jr., High, Swartz, Roberts & Seidel, for appellees.

Judges Doyle and Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 123 Pa. Commw. Page 30]

The Orthodox Minyan of Elkins Park (Appellant) appeals the order of the Court of Common Pleas of Montgomery County which affirmed the decision of the Cheltenham Township Zoning Hearing Board (Board) denying Appellant a special exception to use its property as a synagogue. We reverse and remand.

A Minyan of the Orthodox Jewish faith is a congregation consisting of at least ten adult members and a rabbi. Appellant's Minyan numbers approximately 39 adult members, most of whom are residents of Elkins Park in Cheltenham Township. Because Appellant's previous rented location for holding services became unusable, Appellant purchased a residence located at 503 Spring Avenue in Elkins Park for the purpose of converting it to a synagogue and residence for the Minyan's rabbi and family.

Appellant's property is zoned R-4 by the Cheltenham Township Zoning Ordinance (Ordinance). A synagogue is a religious use expressly permitted by special exception in this zoning classification if it can meet the general requirements for special exceptions contained in Section 2106 of the Ordinance and the requirements for off-street parking contained in Section 2304(2) of the Ordinance. Section 2106(d) states that the proposed special exception shall not adversely affect traffic conditions. Section 2304(2)(d) provides that a church, school or other place of public or private assembly must have at least one parking space for each three seats provided for assembly. The parking spaces shall be within a reasonable distance from the building served.

[ 123 Pa. Commw. Page 31]

Appellant initially proposed that the six parking spaces already on its property were adequate because the nature of the Orthodox Jewish faith prohibits its members from driving automobiles during the Sabbath day which lasts from Friday evening to Saturday evening. Appellant's members testified that they normally held services on Friday nights, Saturday and Sunday mornings, and Jewish religious days on which use of an automobile is prohibited. Most of Appellant's members are local residents who walk to services. Approximately five or six members would drive their automobiles to services on Friday evenings and then leave their cars at the synagogue over the Sabbath day (N.T. 10/20/86, pp. 44-45, R.R. 29-30a).

The Board decided to strictly construe Section 2304(2)(d) and ordered Appellant to provide one parking space for each three seats in the congregation. Based on testimony that a maximum of fifty persons had taken part in services at the Minyan during Yom Kippur, the Board found that Appellant needed to provide 17 parking spaces for the congregation plus two for the rabbi and his family. Appellant first proposed to satisfy this parking requirement by leasing off-street parking from neighboring residences and schools. The Board found that these leases did not satisfy the parking requirement because they were not permanent and not contiguous to Appellant's property.

Prior to the written decision of the Board, Appellant was granted permission to re-open the hearing and filed a plan offering to construct an on-site parking lot with the required 19 spaces. The Board agreed this would satisfy the parking requirements of Section 2304(2)(d). However, the Board decided that the impact of increasing the intensity of parking on the site to 19 spaces would adversely affect ...


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