The opinion of the court was delivered by: Joyner, J.
This case is before the Court on Defendant's Motion for Summary Judgment (Doc. No. 70) and Plaintiff's Cross-Motion for Summary Judgment (Doc. No. 74). For the reasons set forth in the attached Memorandum, these Motions will be GRANTED in part and DENIED in part.
Plaintiff in this case is the Adhi Parasakthi Charitable, Medical, Educational, and Cultural Society of North America ("ACMEC"), which is an organization of Hindus who live in the United States and follow the teachings of its Guru, Shri Bangaru Adigalar, who lives in Melamvurathum, India. Plaintiff's members, however, have several beliefs that differ from those of many Hindus. One important difference is that Plaintiff's congregants believe that an individual is capable of worshiping a deity directly, and all congregants are, therefore, able to pray in all parts of a temple and before all of the stone deities contained within each temple. In the majority of the temples in India, however, these congregants would not be permitted entry to the portions of the temple that contain many of the deities. On January 20, 2000, Plaintiff bought a plot of land at 1456 Conestoga Road, Chester Springs, Pennsylvania, which is located within the Township of West Pikeland. This case centers around Plaintiff's desire to construct a temple on this plot of land and use it for religious purposes.
Beginning in 1998, Muthu Chinnadurai, a member of ACMEC, was tasked with finding an appropriate place to build a Sakthi Peetem*fn1 -a type of Hindu temple-in the United States. In March of 1999, Mr. Chinnadurai presented the Guru with a list of fifty properties as potential sites for the temple. The Guru did not approve any of these locations, and instead gave further instructions to Mr. Chinnadurai on how to select a property. Upon his return to the United States, Mr. Chinnadurai toured the property at 1456 Conestoga Road and became convinced that this was the property that he had been instructed to select. He gave a copy of a map of the property to Ravi Shankar, a fellow member of ACMEC, who took the map to the Guru in India. The Guru informed Mr. Shankar to purchase the property immediately and marked on the map where the temple should be built. Following this, in 2000, the Guru came to the United States, blessed the property, and laid the cornerstone for the building of a temple.
Since the purchase of the property, members of ACMEC have used the existing structure as a meeting house for weekly prayer and meditation. Between five and eight families have used the property once or twice per month, and, depending on the weekend, Mr. Chinnadurai estimates that between four and fifteen or twenty individuals will gather to worship each weekend. In addition, when the Guru came to bless the property, Plaintiff held a festival attended by approximately 600 people, and that involved the construction of temporary tents on the property. Further, Plaintiff anticipated hosting an annual festival on the property, which would consist of approximately fifty to sixty families coming to the property for prayer.
In order to understand the present suit, it is necessary to examine the history of the specific plot of land at issue in this case. Prior to Plaintiff's purchase of the plot of land at 1456 Conestoga Road, the land was owned by Stewart and Shelly Wilson, and was part of a much larger single plot of land. In 1998, the Wilsons submitted a subdivision plan to divide this property into four separate lots. When the Township approved the subdivision plan, it was done so with limitations, by way of restrictive covenants, on any future development of the property. As recorded on the subdivision plan filed in the Office of the Recorder of Deeds of Chester County, Tract 1 "is a non-building lot and any future construction of a residence shall require approval of an on-site septic system by the Chester County Health Department." (Ex. E Def.'s Mot. Summ. J.) In addition, on the subdivision map itself, a portion of Tract 1 is cross-hatched and states "ANY RESIDENTIAL USE OF THIS PARCEL SHALL BE LIMITED TO ONE (1) HOME SITE IN THIS CROSS-HATCHED AREA." (Id.) The "remaining area" that was not given a tract number on the subdivision plan is also subject to the restriction that "NO DEVELOPMENT SHALL BE PERMITTED BEYOND THIS CROSS-HATCHED BOUNDARY." (Id.) This subdivision plan was referenced on both the deed from Stewart and Shelly Wilson to Adhimoolam Sriram, who was acting as a strawman for Plaintiff, and the deed from Mr. Sriram to Plaintiff.
When negotiating the purchase of the land, Mr. Sriram attempted to condition the purchase on obtaining permission to construct a house of worship on the premises. This condition, however, was rejected, and both Tract 1 and the "remaining area" were purchased without any contingency relating to the construction of a building. On January 20, 2000, Mr. Sriram paid $445,750.00 for the two lots, and subsequently deeded these to Plaintiff on November 21, 2001.
Since purchasing the property, Plaintiff has filed several applications with Defendant's Zoning Board. The first of these was in 2000, and involved a request to build a 33,000 square-foot temple. This request, however, was withdrawn before the Board held a hearing on it. In September of 2001, Plaintiff submitted a second application to the Zoning Board. This request for a special exception was to build a 5,000 square-foot structure to use "as a church or similar place of worship." Hearings were held on September 25, 2001, and January 22, 2002. Testimony in these hearings made clear that the 5,000 square feet proposed for this project included not only the main temple, but also any auxiliary living areas, bathrooms, facilities, and any other development. On April 11, 2002, the Board granted Plaintiff's special exception, contingent upon several conditions: Plaintiff was required to construct an all-weather parking area, provide a traffic-management and parking plan prior to its annual festival, modify the driveway to allow two vehicles to pass each other, verify that the existing sanitary sewage system was adequate, ensure that the use and conversion of the existing residential structure complied with all building codes, submit a landscaping plan to mitigate the visual impact of the proposed use, obtain a highway occupancy permit if required, any comply with reasonable requirements imposed by the Chester County Department of Health during Plaintiff's annual festival. In addition, Plaintiff was forbidden from using any new outdoor lighting without prior approval, using any signs that violated the Township's sign regulations, or increasing the scope of the activities described to the Board or attempting to enlarge any of the facilities without approval of the Board. This decision was not appealed, and Plaintiff "fixed the house" and expanded the driveway in 2005.
Plaintiff returned to the Zoning Board on July 10, 2008. This application was for conditional-use approval for the construction of a 26,370 square-foot temple and a 9,100 square-foot auxiliary building. The purpose of this expansion was to allow for the housing of several stone deities, and the larger size was dictated by the required placement of the deities and the specific distances that they needed to be from one another. Importantly, the development plan that Plaintiff submitted to the Zoning Board included construction outside of the cross-hatched lines marked on the subdivision plan. Although Plaintiff's final proposal did not appear to request permission for either of the structures to extend beyond the cross-hatched boundary, the septic system would have still been outside of this area. The Zoning Board held eight public hearings on this plan between August 19, 2008, and January 15, 2009. These hearings included testimony from Plaintiff's representatives as well as engineers, various expert witnesses, and comments from residential neighbors. The Zoning Board concluded that the proposal included "development" outside of the cross-hatched markings on the subdivision plan in violation of the restrictive covenant on the property, and expressed concern over the environmental impact that the construction would have on the property. Recognizing, however, "the right of the Applicant to worship and its desire to construct a Hindu temple at the site," (Ex. M Def.'s Mot. Summ. J. 32), the Zoning Board approved the conditional use, subject to a series of conditions. These conditions, however, included that Plaintiff submit a further plan to the Zoning Board that limited the development to a single structure not exceeding 5,000 square feet, constrained all development within the cross-hatched areas on the subdivision plan, and had a maximum occupancy of 200 people. In effect, therefore, the Board denied Plaintiff's application. Plaintiff neither submitted a revised plan nor appealed the Zoning Board's decision.
Plaintiff filed its Complaint in this Court on April 17, 2009. Although Plaintiff's Complaint initially contained seven counts, Counts VI and VII were voluntarily dismissed on March 25, 2010. Count I charges Defendant with violating Plaintiff's First Amendment rights to speech and assembly. Plaintiff argues that its proposed construction of a temple and use of the property constitute protected speech and that Defendant's Zoning Ordinance is a content-based restriction on this speech, which seeks to regulate religiously based speech more stringently than non-religious speech. Further, Plaintiff alleges that any requirement that it receive approval before using the property for religious purposes provides Defendant with unfettered discretion and constitutes a prior restraint on Plaintiff's speech. In Count II, Plaintiff alleges a violation of its First Amendment Free Exercise rights. Again, Plaintiff's allegations focus on Defendant's Zoning Ordinance and argue that this places a substantial burden on Plaintiff's ability to exercise its religion. Count III charges Defendant with violating the Fourteenth Amendment's Equal Protection and Due Process Clauses. Plaintiff argues that Defendant's Zoning Ordinance discriminates against religious land uses, and thereby violates the Equal Protection Clause. Further, Plaintiff states that terms of the Zoning Ordinance are overly vague and arbitrarily enforced, thereby violating its Due Process rights. Count IV alleges violations of the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc(a), and asserts that Defendant's Zoning Ordinance imposes a substantial burden on the exercise of religion. Finally, in Count V, Plaintiff asserts violations of RLUIPA, 42 U.S.C. § 2000cc(b). This Count also focuses on Defendant's Zoning Ordinance and asserts that it discriminates against religious uses and thereby violates the equal terms, nondiscrimination, and unreasonable limitation or total exclusion provisions of this statute.
When a party files for summary judgment, "[t]he judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). In making a summary judgment determination, all inferences must be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In order to survive a motion for summary judgment, however, the non-moving party cannot rely solely on the unsupported allegations found in the pleadings.
Id. at 324. Instead, the non-moving party must raise more than "some metaphysical doubt" as to a material fact. Matsushita, 475 U.S. at 586. Further, when the non-moving party is the plaintiff, he must "make a showing sufficient to establish the existence of [every] element essential to [his] case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Finally, in making a decision as to whether there is a "genuine" issue of fact, the court must determine "whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Discussion
The First Amendment to the United States Constitution provides individuals with the right to free speech as well as to peaceable assembly.*fn2 In addition to protecting literal speech, the First Amendment protects some expressive conduct. Tenafly Eruv Ass'n v. Borough of Tenafly, 309 F.3d 144, 158 (3d Cir. 2002). Expressive conduct will constitute protected speech if the conduct is "imbued with elements of communication," given the factual context of the conduct. Id. at 160. In cases where the expressiveness of the conduct is in doubt, the burden is on the putative speaker to demonstrate that the conduct was expressive. Id. at 161. Importantly to this case, however, neither physical buildings themselves nor the act of constructing them are generally considered to be expressive conduct unless there is evidence that some "'attitude or belief' is conveyed or received from them." Id. at 163 (citation omitted). The reason for this, as the Third Circuit has concluded, is that "[o]therwise, the act of constructing houses of worship would implicate the Free Speech Clause, whereas courts consistently analyze the constitutionality of zoning regulations limiting such construction under the Free Exercise Clause, not the Free Speech Clause." Id.
If the conduct is found to be expressive speech, it can still be regulated so long as the conduct itself could be regulated and the regulation is narrowly drawn to further a substantial government interest unrelated to the suppression of speech. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 294 (1984). This heightened level of scrutiny does not apply, however, if the limitation is a "time, place, and manner regulation" that is narrowly tailored to achieve a legitimate, content-neutral governmental interest and leaves open alternative means of communication. Brown v. City of Pittsburgh, 586 F.3d 263, 271 (3d Cir. 2009). If the time, place, and manner regulation is a "generally applicable statute," then it need not be the least restrictive means of serving the government interest in order to meet the "narrowly tailored" requirement. Id.; see also Hill v. Colorado, 530 U.S. 703, 726 (2000); Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989). Further, in determining whether a regulation of speech is content neutral, the principle focus is on whether the regulation was imposed because of a disagreement with the message contained in the speech or conduct. Id. at 791.
Finally, regulations that may appear to be time, place, and manner regulations will face heightened scrutiny if they are found to be prior restraints. Indeed, if the regulation is considered a prior restraint, there is a strong presumption that it is invalid. Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 558 (1975). Although content-neutral time, place, and manner restrictions are not generally considered prior restraints, they will be treated as such if they grant overly broad discretion to individuals in determining whether to permit the speech and do not "contain adequate standards to guide the official's decision and render it subject to effective judicial review." Thomas v. Chicago Park Dist., 534 U.S. 316, 322-23 (2002). If the regulation is found to be a prior restraint, it is only acceptable if the putative censor is required to institute judicial proceedings to prove that the speech is unprotected, no restraint is instituted before judicial review unless it is to maintain the status quo, and there are insurances for a prompt, final judicial determination. Conrad, 420 U.S. at 560. Plaintiff's Speech Turning to the conduct at issue in this case, it is first necessary to identify the speech that is allegedly being restricted. Plaintiff's claims focus on its ability to build a temple on the property and use the land for weekly worship as well as for special religious festivals. Perhaps equally important to what Plaintiff has alleged is what Plaintiff has not alleged in this case: that there was any regulation of its literal speech. In other words, Plaintiff's free speech claims all rest on its expressive speech in being permitted to build a temple and use the property for expressive religious conduct.
First, as noted above, in the absence of evidence supporting a contrary conclusion, the building of a place of worship will not be considered expressive conduct protected by the Free Speech Clause. Plaintiff has not introduced any evidence to attempt to show that the building itself will convey some attitude or belief, and, therefore, we cannot find any violation of the First Amendment's Free Speech Clause in relation to any denial of permission to build a temple on the property.*fn3 This also includes any claim that Defendant's Zoning Board's approval process for Plaintiff's construction project was a prior restraint. It is not a constitutional violation for a township to enact a prior restraint on building, but only to place prior restraints on speech. As the building of the temple was not speech, there can be no claim for a prior restraint based on the requirement that Plaintiff seek approval before building.
Plaintiff, however, also alleges that its desired uses of the property as a location for religious worship and as a site for an annual religious festival constitute expressive conduct that should receive First Amendment protection. In determining whether these uses constitute expressive speech we must consider whether they are "imbued with elements of communication." Here, we believe that Plaintiff's desired conduct of worshiping on the premises and holding religious festivals on the property does constitute expressive speech. The act of worshiping is an important part of an individual's life, and one that inherently communicates something to others about that individual's views on society, life, and other more philosophical subjects. Even if conducted in a secluded area, the use of the land as a place of worship allows an individual's conduct to communicate these thoughts with other members of the congregation. Further, the holding of festivals allows for the ...