several buildings including a 250 seat chapel, and the
Sisters used the Property as a convent and as a place of worship from
1957 to 1995. Then in 1995, the Sisters leased the Property to the Greek
Orthodox Monastery of the Preservation of Our Lord for similar uses.
In January 2000, plaintiffs initiated proceedings before the ZHB
requesting the ZHB's approval to continue the Sisters' use of the
property, the ZHB's approval of a special exception, or a variance to use
the property as a place of worship. During those proceedings, Kol Ami
representatives testified that its Congregation may grow from 201
households to 350 households in five years. Further, Kol Ami intends to
conduct Sabbath services on Friday and Saturday, Bar Mitzvahs, Bat
Mitzvahs, High Holiday Services, and outdoor wedding ceremonies. Kol Ami
also plans to expand the existing parking from 20 spaces to at least 137
spaces. The ZHB heard evidence that plaintiffs' proposed use would
increase the traffic in the neighborhood from 8 to 121 vehicles during
peak afternoon hours, and from 4 to 109 vehicles on Saturday.
On March 20, 2001, the ZHB issued an Opinion and Order denying
plaintiffs' requests. With respect to plaintiffs' request to continue the
Sisters' use of the property, the ZHB denied that request finding that
the plaintiffs' proposed use of the property differed from the Sisters'
use. Accordingly, it found that the plaintiffs' use of the Property would
cause more traffic, noise and other neighborhood disruptions than the
Sisters' use. The ZHB's Opinion does not specifically address plaintiffs'
request for a special exception, but the opinion concludes that the 1996
Ordinance does not permit places of worship to locate in an R-1
district, and recognizes that the 1996 Ordinance does not specifically
allow a special exception for places of worship.*fn3 Finally, the ZHB's
decision to deny plaintiffs request for a variance was based upon its
conclusion that "there is no legal justification for the Applicant to
obtain a variance."*fn4 In light of these facts, the Court now turns to
the plaintiffs' Motion.
Summary judgment is appropriate "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." Fed.R.Civ.P. 56(c) (1994). The party moving for summary
judgment has the initial burden of showing the basis for its motion. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant
adequately supports its motion pursuant to Rule 56(c), the burden shifts
to the nonmoving party to go beyond the mere pleadings and present
evidence through affidavits, depositions, or admissions on file to show
that there is a genuine issue for trial. See id. at 324.
In their Motion for Partial Summary Judgment, plaintiffs only argue
that the 1996 Ordinance fails rational review under the Equal Protection
Clause, the Due Process Clause, and the First Amendment.*fn5
Although plaintiffs argue that the 1996 Ordinance is facially
unconstitutional, the Court will first examine whether prohibiting Kol Ami
from locating on the Property by special exception in the circumstances
here deprives plaintiffs of rights secured by the Constitution. This course
of action will enable the Court to avoid making an unnecessarily broad
constitutional judgment. See Brockett v. Spokane Arcades, Inc.,
472 U.S. 491, 501-502 (1985); United States v. Grace, 461 U.S. 171
It has long been the law 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. See Seattle Title Trust Co. v.
Roberge, 278 U.S. 116, 121 (1928). This general principal has been
enforced through the Equal Protection Clause of the Fourteenth Amendment
which commands that no State shall "deny to any person within its
jurisdiction the equal protection of the laws," a direction that all
persons similarly situated should be treated alike. City of Cleburne v.
Cleburne Living Center, 473 U.S. 432, 440 (1985) (citing Plyler v. Doe,
457 U.S. 202, 216 (1982)).
When analyzing legislation under the Equal Protection Clause, courts
generally apply a rational review test; that is they will generally
sustain legislation unless it is not rationally related to a legitimate
state interest.*fn6 See City of Cleburne, 473 U.S. at 440; Schweiker v.
Wilson, 450 U.S. 221, 230 (1981); United States Railroad Retirement Board
v. Fritz, 449 U.S. 166, 174-175 (1980).
The Supreme Court's decision in City of Cleburne provides substantial
guidance for the Court's opinion today. There, the Supreme Court
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
places. See City of Cleburne, 473 U.S. at 447. Upon consideration of the
ordinance, the Court decided that 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. See id., at 450. 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. See id. 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
Here, defendants argue that the 1996 Ordinance properly precludes Kol
Ami from requesting a special exception
because Kol Ami's presence on the
Property would cause traffic, light pollution, and noise to increase.
However, the ZHB failed to consider whether any of these disruptions
warrant the denial of a special exception.*fn7 In fact, the ZHB failed
to specifically address plaintiffs' request for a special exception, but
instead concluded that the 1996 Ordinance does not permit places of
worship to locate in an R-1 district, and recognized that the 1996
Ordinance does not specifically allow a special exception for places of
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. 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. Because the
ZHB failed to consider whether traffic, noise, light or other disruptions
warrant the denial of a special exception, and failed to apply the 1996
Ordinance in a way that accounts for that Ordinance's differing treatment
of Kol Ami from the other permitted uses by special exception, the Court
finds that defendants denied plaintiffs rights secured by the
Accordingly, the Court will grant plaintiffs' Motion for Partial
Summary Judgment, and enter judgment in their favor.
An appropriate Order will follow.
AND NOW, this day of July, 2001, the Court hereby ORDERS as follows:
1) Upon consideration of plaintiffs' Motion for Partial Summary
Judgment and defendants' response thereto, said Motion is
GRANTED, the Court finding the 1996 Ordinance as defined in the
accompanying memorandum, is unconstitutional as applied to
plaintiffs by the Zoning Hearing Board of Abington Township.
2) Defendants' Motion to DISMISS is DENIED as moot.