The opinion of the court was delivered by: Newcomer, Senior District Judge
Currently before the Court is plaintiff's Motion for Partial Summary
Judgment, and defendants' response thereto.
Plaintiffs, Congregation Kol Ami and Rabbi Elliot Holin allege that the
zoning laws of Abington Township, Pennsylvania violate the United States
and Pennsylvania Constitutions because they prohibit houses of worship
from locating in residential districts, yet allow other institutions to
settle in those districts.*fn1
Plaintiff Congregation Kol Ami ("Kol Ami") is a Pennsylvania non-profit
corporation which has operated as a religious institution in the
Philadelphia area since 1994. A Reform Jewish Congregation, it has about
200 member-families, and its purpose is to conduct religious exercises
and operate a Hebrew School two days per week. Plaintiff Elliot Holin is
the Rabbi of Congregation Kol Ami.
The ZHB is the body that hears and decides: 1) appeals concerning the
zoning ordinance at issue today, the May 9, 1996 Revised Abington
Township Zoning Ordinance (the "1996 Ordinance"); 2) special exceptions
to the 1996 Ordinance; and 3) variances from the terms of the 1996
Defendant Lawrence T. Matteo, Jr. is the Director of Code Enforcement
for the Township.
In 1978, the Township enacted Ordinance No. 1469 (the "1978 Ordinance")
which created a V-Residence Zoning District. The V-Residence district
permitted the following uses by right: single family detached dwellings,
tilling of soil, township administrative buildings, public libraries,
parks, and play or recreational areas. Religious institutions were
permitted by special exception of the ZHB.
Then, in 1990, the Township amended the 1978 Ordinance with Ordinance
No. 1676 (the "1990 Ordinance"). The 1990 Ordinance eliminated all uses
by right in a V-Residence district, except for single family detached
dwellings and accessories for those dwellings. It further eliminated all
uses previously allowable by special exception including religious ones.
The May 9, 1996 Ordinance changed the designation of the Township's low
density residential district from V-Residence to R-1 Residential. The
1996 Ordinance does not specifically allow religious institutions from
locating in any of its four residential districts, R-1, R-2, R-3 and
R-4. The R-1 district permits the following uses by right: agriculture,
livestock, single family detached dwelling, and conservation and
recreation preserve. It also permits the following uses by special
exception: kennel, riding academy, municipal complex, outdoor
recreation, emergency services and utility facility.
Article IV of the 1996 Ordinance further defines the uses permitted by
special exception in an R-1 district. For example, section 706(E)(8)
states that a municipal complex includes such uses as a municipal
administration building, police barracks, library, or road maintenance
facility. Additionally, section 706(G)(6) defines outdoor recreation as
"[p]ublic or private miniature golf courses, swimming pools, ball
courts, tennis courts, ball fields, trails, and similar uses . . .
[o]utdoor recreation shall [also] include any accessory use, such as
snack bars, pro shops, club houses, county clubs" or other similar uses.
Further, section 706(J)(3) states that term "utility facility" includes
public transportation structures such as train stations and bus shelters.
The 1996 Ordinance was enacted to further the goals of the Township's
Comprehensive Plan, first enacted in 1977. The purpose of the
Comprehensive Plan is to serve as a "guide to orderly Township
development in promoting health, safety, welfare and convenience of the
people within it. It organizes and coordinates the relationships between
land use patterns. It charts ...