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First Korean Church of New York, Inc. v. Cheltenham Township Zoning Hearing Board and Cheltenham Township

February 29, 2012


The opinion of the court was delivered by: Norma L. Shapiro, J.


Plaintiff, First Korean Church of New York, Inc. ("First Korean") brought this action against defendants, Cheltenham Township (the "Township") and Cheltenham Township Zoning Hearing Board (the "ZHB"). First Korean alleges the Township's zoning ordinances prevent it from using property located at 920 Spring Avenue, Cheltenham Township, Pennsylvania (the "Property") as a church and seminary. First Korean alleges that defendants have violated the United States Constitution and the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. § 2000cc, et seq.

Before the court are cross-motions for summary judgment. For the following reasons, the court will deny First Korean's Second Renewed Motion for Summary Judgment (paper no. 134) and grant defendants' Second Renewed Motion for Summary Judgment (paper no. 133). First Korean's Motion for Expedited Rulings on Motions for Summary Judgment (paper no. 203) will be denied as moot.


A. The parties

First Korean is a Bible-based, Christian church of Presbyterian denomination. Dr. Richard Yoon is its President and pastor.

The Township is a First Class Township in Pennsylvania empowered to act through its governing body, officials, employees, and official bodies. It has the power to regulate and restrict the use of land and structures within its borders.

The ZHB hears and decides appeals concerning Cheltenham zoning ordinances, as well as requests for special exceptions to, and variances from, those ordinances.

B. The Township's zoning ordinances

The Cheltenham Zoning Ordinance of 1929, as amended (the "1929 Ordinance"), established R-Residence districts as part of a comprehensive plan for development within the Township. Under the 1929 Ordinance, parties seeking to use property in an R-Residence district for a religious purpose could petition the ZHB for a special exception.

The Township is primarily a residential community. It has little commercial tax base compared to other communities that have regional malls and large shopping districts. The primary burden of real estate taxes in the Township falls on residential property owners. When the 1929 Ordinance was amended in 2003, approximately fifteen to twenty percent of all property in the Township was tax-exempt. As a result, the Township had one of the highest real estate taxes in Montgomery County.

In an effort to reduce the tax burden on residential property owners, the Township adopted Ordinance 2034-03 (the "2003 Ordinance"). The 2003 Ordinance amended the 1929 Ordinance to eliminate special exceptions for educational and religious use in the R-1, R-2, R-3, M-1, M-2, M-3, C-3, and G districts. Under the 2003 Ordinance, parties seeking to use property for an educational or religious purpose in the affected districts would have to apply for a variance. The change was advertised pre- and post-adoption in a newspaper of general circulation.

C. The Property

First Korean purchased the Property at a sheriff's sale in 1996. The Property comprises Parcels No. 31-00-00820-004 (23.795 acres) and No. 31-00-00823-00-1 (10.014 acres), a total of 33.809 acres. The previous owner was Faith Theological Seminary ("FTS"), a separate organization with which First Korean had a close working relationship. The Property is within the Township's R-2 Residential district.

There are three buildings on the Property: Lynnewood Hall, Conklin Hall, and the Gatehouse. Lynnewood Hall has one hundred and ten rooms; FTS, its previous owner, dismantled its interior and sold whatever was severable when FTS fell into financial difficulty. First Korean uses part of the first floor but the rest of the building is unusable.

Conklin Hall has forty-four rooms and was dismantled and almost demolished by FTS. Pastor Oh and his wife reside at Conklin Hall in three rooms; the rest of the building has no heat and is uninhabitable. The Gatehouse is currently empty.

Both entrances to the Property have locked gates. The main entrance can be opened by remote control after Pastor Oh is notified.

Police monitored the Property twice in 1997. On November 30, 1997, police observed no vehicles or persons entering the Property. On December 7, 1997, police observed three vehicles entering the Property. See paper no. 70, ex. 3, p. 77--78; ex. 13, p. 1--2.There is no evidence that defendants were aware of the police monitoring.

On May 20, 1998, David Lynch, Director of Engineering, Zoning, and Inspections for the Township, sent First Korean a letter stating that First Korean was in violation of the 1929 Ordinance because it had not obtained a special exception to operate a church in a residential district. First Korean had erected a sign at its main entrance advertising its church services; Lynch's letter directed First Korean to remove the sign and notified it that the Township could impose "a fine of up to $500 per day for each day the violation continue[d]." See paper no. 70, ex. 5. First Korean applied for a special exception, and the Township did not impose the fine.

In October 1998, a Montgomery County tax assessor visited the Property and observed a chapel, classrooms, offices, and library. He also observed overgrown vegetation, a deteriorating driveway, and rooms filled with debris and old mattresses. Township representatives visited the Property in 2004 and observed falling ceilings, leaking and stained roofs, and walls with exposed wires and joists.

The Township believes that: (1) the physical condition of the Property is inconsistent with public safety and the interest of the community; (2) First Korean does not facilitate community interaction or exchange; and (3) absent zoning relief, the Township believes that "[i]f church services are being operated on [the Property] to any degree, it is an illegal use[.]" See paper no. 70, ex. 3, p. 28--29, 60.

If the Property were developed, it could generate "a significant amount of tax revenue" for the Township as a "very attractive residential use[.]" Id. at21. Developers have expressed interest in purchasing the Property. Id. at22.

D. 1998 special-exception application

In 1998, First Korean appealed the determination of a zoning officer that use of the Property for religious or educational purposes violated the 1929 Ordinance. In the alternative, First Korean sought a special exception to use the premises for a theological seminary and weekly church services.

The proposed seminary was to provide education to post-graduate students. Married students attending the seminary would reside off-campus, and approximately five to seven unmarried students would reside on-campus. The seminary would operate between 9:30 a.m. and 2:30 p.m. on weekdays, and church services would occur between 11:00 a.m. and 12:30 p.m. and from 4:30 p.m. to 6:00 p.m. on Sundays only. The total number of congregants would be twenty-five to thirty.

First Korean's proposal would use seven of the Property's thirty-three acres and would include: (1) a parking lot for fifty cars; (2) the first floor of Lynnewood Hall as the seminary campus; (3) the second floor of Lynnewood Hall as a library; and (4) the third floor of Lynnewood Hall as a dormitory. First Korean also proposed to develop the remaining acreage for religious uses but did not explain how it would do so.

After four hearings, the ZHB observed that the proposed seminary was not operational and that First Korean had not applied to any educational department or agency to operate the proposed seminary. The 1929 Ordinance limited conforming educational uses to those "recognized, supervised and under the control of" the Commonwealth. See paper no. 70, ex. 8, p.

18. The ZHB declined to approve a special exception for educational use. Id. at 19.The ZHB also noted that the Property had been cited in 1997 and 1998 for its high grass, deteriorating exterior fence, and poorly kept lawns, shrubbery, and trees. Id. at 10, 13. The ZHB found it "not inconsequential" that the grounds were deteriorating, and it did not believe that the proposed church use could support any good-faith effort to reverse those conditions. Id. at 20.

The ZHB explained that the Township permitted religious uses in residential districts because neighborhood churches were consistent with residential areas. Id. at 21. But First Korean's proposed use was inconsistent with residential areas because, inter alia, First Korean proposed to locate its church in "one or two rooms" in a building with one hundred and ten rooms on a thirty-three acre property encircled by a padlocked wrought-iron fence. Id. The ZHB, citing public health, safety, and welfare, held that First Korean's proposed use of the Property would have been inconsistent with residential religious use as contemplated by the 1929 Ordinance and would have resulted in a rezoning of the Property. Id. at 23.

After the ZHB denied First Korean's request for a special exception, First Korean appealed to the Montgomery County Court of Common Pleas, the Commonwealth Court of Pennsylvania, and the Pennsylvania Supreme Court. The Montgomery County Court of Common Pleas and the Commonwealth Court of Pennsylvania affirmed the ZHB's decision, and the Pennsylvania Supreme Court denied allocatur on May 30, 2001.

E. 2000 special-exception re-application

In 2000, as appeals in the 1998 special-exception proceeding were pending, First Korean filed a second application for a special exception. First Korean stated that, after the 1998 proceedings before the ZHB, it had been operating a seminary on the Property, which substantially changed the circumstances and warranted review. See paper no. 167, p. 4--5. First Korean asked the ZHB to either: (1) consider its proposed use a continuance of the prior use by FTS; or (2) grant a special exception allowing First Korean to use the Property as a seminary and church. Id. at 2--3.

After two hearings, the ZHB concluded that it could not consider any issue pending before the Commonwealth Court. Id. at 5--6. The ZHB noted that "substantial change" refers to a substantial change in the property's condition, not its use. Id. Citing res judicata and collateral estoppel, the ZHB denied First Korean's re-application on August 14, 2000. Id. at 6. F. 2007 variance application

On May 7, 2007, First Korean applied for a variance. At the ZHB hearing, although represented by J. Michael Considine, Esq. in the application process, First Korean (through Dr. Yoon) appeared at the hearing unrepresented. See paper no. 133, ex. N, p. 2. Mr. Considine attended the hearing and participated as a "witness," not as a lawyer. Id. at 11. First Korean failed to bring its appeal under RLUIPA or any constitutional provision and declined the ZHB's invitation to amend its application to include a RLUIPA claim. See id., ex. O, p. 3 ("At the July 7, 2007 hearing, Dr. Yoon declined the opportunity to amend the Application to [the ZHB] to include a request for relief other than variance relief."; "First Korean made no application for zoning relief based solely on RLUIPA."); p. 4 ("First Korean Church . . . refused the invitation to broaden its appeal."). Instead, First Korean "steadfastly held its ground in advocating a variance for itself[.]" Id. at 4.

Under the Pennsylvania Municipalities Planning Code, a ZHB may grant a variance from a zoning ordinance only if the ZHB makes all of the following findings:

(1) That there are unique physical circumstances or conditions . . . peculiar to the particular property . . .

(2) That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance . . .

(3) That such unnecessary hardship has not been created by the appellant. (4) That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare.

(5) That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.

52 P.S. § 10910.2. The ZHB found that First Korean presented no evidence upon which the ZHB could have made any of those findings. Instead, First Korean "was content to link RLUIPA in some way to a variance." See paper no. 133, ex. O, p. 6. Finding that First Korean failed to present any evidence allowing the ZHB to grant a variance, the ZHB denied First Korean's application on August 13, 2007. Id. at 7. First Korean did not appeal.

G. Tax assessment proceedings (1998--2011)

While First Korean's first special-exception application was pending, it also sought an exemption from property taxation for the Property. On December 4, 1998, the Montgomery County Board of Assessment denied First Korean's request for a tax exemption as a religious use. First Korean appealed to the Montgomery County Court of Common Pleas. The court, concluding that only property used for an authorized purpose was entitled to tax-exempt status, granted summary judgment to the Township because First Korean's 1998 special exception application had been denied by the ZHB and on appeal, so a religious use was not authorized. See paper no. 152, ex. 16, p. 4.

In 2006, First Korean appealed to the Commonwealth Court of Pennsylvania. The Commonwealth Court held that the taxing authority, when deciding whether the Property was entitled to a tax exemption, should have considered the actual use of the Property and not whether that use conformed to the zoning ordinance. First Korean Church of N.Y., Inc. v. Montgomery Cnty. Bd. of Assessment Appeals, 926 A.2d 543, 547 (Pa. Commw. Ct. 2006). The Commonwealth Court remanded for further proceedings to determine whether First Korean's use of the Property fell within the place-of-worship tax exemption. Id. at 548.

On remand, the Montgomery County Court of Common Pleas held a two-day non-jury trial. The court found noregular church-related activity had taken place on the Property since 1998, see paper no. 196, ex. A, p. 9, and the evidence "clearly demonstrated that this property is not primarily used for religious worship[,]" see id. at 12. First Korean appealed, and the Commonwealth Court affirmed. See First Korean Church of N.Y., Inc. v. Montgomery Cnty. Bd. of Assessment Appeals, No. 1551 C.D. 2010, 2011 Pa. Commw. Unpub. LEXIS 448, at *16 (Pa. Commw. Ct. June 14, 2011).


First Korean filed this action on December 12, 2005, and challenged the denial of the 1998 and 2000 special-exception applications. First Korean filed its first amended complaint on December 12, 2006, and moved for summary judgment on December 14, 2006. Defendants cross-moved for summary judgment on January 4, 2007. The court placed the action in suspense while First Korean unsuccessfully sought a variance under the 2003 Ordinance.

Following oral argument on the cross-motions for summary judgment, First Korean filed its second amended complaint on March 18, 2008. The parties then filed renewed cross-motions for summary judgment. After a second oral argument, the court ordered the parties to submit a joint set of stipulated facts. See paper nos. 155, 157.

First Korean's motion for summary judgment seeks judgment in its favor on its RLUIPA claim and constitutional claims under the First and Fourteenth Amendments. Defendants' motion for summary judgment seeks dismissal of all First Korean's claims.


Summary judgment is appropriate "where the pleadings, depositions, answers to interrogatories, admissions, and affidavits show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Meditz v. City of Newark, 658 F.3d 364, 369 (3d Cir. 2011). The court must view all evidence and draw all inferences in the light most favorable to the non-moving party. Id.

Where, as here, the parties have presented cross-motions for summary judgment, the court considers each party's motion individually. Each side bears the burden of establishing a lack of genuine issue of material fact.

Cross-motions are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist.

Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968).


First Korean, moving for summary judgment on all claims, argues that defendants have violated RLUIPA and the First and Fourteenth Amendments of the U.S. Constitution. First Korean also argues that the 2003 Ordinance is facially unlawful. See paper no. 64 at 31. Defendants, moving for summary judgment on all claims, argue ...

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