                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-16-2002

Congregation KOL AMI v. Abington
Precedential or Non-Precedential: Precedential

Docket No. 01-3077




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PRECEDENTIAL

       Filed October 16, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-3077

CONGREGATION KOL AMI; ELLIOT HOLIN, Rabbi

v.

ABINGTON TOWNSHIP;
BOARD OF COMMISSIONERS OF ABINGTON TOWNSHIP;
THE ZONING HEARING BOARD OF ABINGTON
TOWNSHIP; LAWRENCE T. MATTEO, JR., In his official
capacity as Director of Code Enforcement of
Abington Township

Board of Commissioners of Abington Township;
The Zoning Hearing Board of Abington Township;
Lawrence T. Matteo, Jr., In his official capacity
as Director of Code Enforcement of Abington Township,
Appellants

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 01-cv-01919)
District Judge: Honorable Clarence C. Newcomer

Argued: July 29, 2002

Before: BECKER, Chief Judge, ROTH and
RENDELL, Circuit Judges.

(Filed: October 16, 2002)




       MARCI A. HAMILTON, ESQUIRE
        (ARGUED)
       36 Timber Knoll Drive
       Washington’s Crossing, PA 18977

       HARRY G. MAHONEY, ESQUIRE
       CARLA P. MARESCA, ESQUIRE
       MICHAEL L. BARBIERO, ESQUIRE
       Deasey, Mahoney & Bender
       1800 John F. Kennedy Blvd.
       Suite 1300
       Philadelphia, PA 19103

       Counsel for Appellants

       JEROME M. MARCUS, ESQUIRE
       JONATHAN AUERBACH, ESQUIRE
       Berger & Montague
       1622 Locust Street
Philadelphia, PA 19103

ANTHONY R. PICARELLO, JR.,
 ESQUIRE (ARGUED)
ROMAN P. STORZER, ESQUIRE
The Becket Fund for Religious
 Liberty
1350 Connecticut Avenue, NW,
 Suite 605
Washington, DC 20036

Counsel for Appellees

                           2


D. MICHAEL FISHER, ESQUIRE
Attorney General
HOWARD G. HOPKIRK, ESQUIRE
Deputy Attorney General
CALVIN R. KOONS, ESQUIRE
Senior Deputy Attorney General
JOHN G. KNORR, III, Esquire
Chief Deputy Attorney General
Chief, Appellate Litigation Section
Office of Attorney General of
 Pennsylvania
Strawberry Square, 15th Floor
Harrisburg, PA 17120

Counsel for Amicus-Curiae Appellant
Commonwealth of Pennsylvania

STEFAN PRESSER, ESQUIRE
LARRY FRANKEL, ESQUIRE
American Civil Liberties Union
125 South Ninth St., Suite 701
Philadelphia, PA 19107

Counsel for Amicus Curiae-Appellees
The American Civil Liberties Union of
Pennsylvania and The American
Jewish Committee

RONALD A. KRAUSS, ESQUIRE
Campbell, Campbell, Edwards
 & Conroy
1265 Drummers Lane, Suite 200
Wayne, PA 19087

MARK D. STERN, ESQUIRE
American Jewish Congress
15 East 84th Street
New York, NY 10028

Counsel for Amicus Curiae-Appellee
The American Jewish Congress

                           3
OPINION OF THE COURT

BECKER, Chief Judge.

Congregation Kol Ami (the "Congregation") is a Reform
Jewish Synagogue that desires to relocate to a 10.9-acre
parcel of land in the midst of a purely residential section of
Abington Township ("Abington" or "the Township") in the
Philadelphia suburbs, zoned R-1 residential under the
Township Zoning Ordinance. After the Congregation entered
into an agreement of sale with the Sisters of Nazareth, the
current owners of the property, it sought zoning approval
from the Township Zoning Hearing Board ("ZHB") seeking
either a variance or a special exception, and alternatively,
permission to use the property as an existing non-
conforming use. When the Congregation’s application was
denied by the ZHB, the Congregation, along with its Rabbi,
Elliot Holin, filed suit in the District Court for the Eastern
District of Pennsylvania against the ZHB, Abington
Township, its Board of Commissioners, and its Director of
Code Enforcement in both his individual and official
capacities, seeking injunctive, declaratory and
compensatory relief for alleged civil rights violations
pursuant to 42 U.S.C. S 1983. The complaint also alleged a
violation of the Religious Land Use and Institutionalized
Persons Act of 2000, 42 U.S.C. S 2000 et seq.; the
Municipalities Planning Code, 53 P.S. S 11001A-11005A;
Article I, sections 3, 7, 20 and 26 of the Pennsylvania
Constitution; and the First and Fourteenth Amendments of
the United States Constitution. [1a-20a].

Central to the case are certain provisions of the Abington
Township Zoning Ordinance whose purpose, under a 1996
Amendment, is "to provide low density, single family,
neighborhoods." Under the Ordinance, the R-1 Residential
District only permits a handful of uses by right: agriculture,
livestock, single family detached dwellings, and
conservation and recreation preserve. Similarly, the
Ordinance only permits a handful of uses by "special
exception," including a kennel, riding academy, municipal
complex, outdoor recreation, emergency services, and utility

                                4


facilities. The Ordinance does not permit churches or other
religious institutions in R-1, except those that are legal,
nonconforming uses, even by special exception. Nor does it
allow a myriad of other uses such as schools, hospitals,
theaters, and daycare centers in R-1 Residential Districts.
These uses are, however, permitted in other districts in the
Township.

The Congregation moved for partial summary judgment
on its claim that the Ordinance is unreasonable on its face
because it prohibits houses of worship from locating in
residential neighborhoods. The District Court granted the
Congregation’s motion, finding instead that the Ordinance,
as applied, violated the Equal Protection Clause of the
United States Constitution. The Court reasoned that a
"house of worship inherently further[s] the public welfare,"
and that the Township had no rational reason to allow
some uses by special exception, such as a country club
subsumed under "outdoor recreation," but not the
Congregation. The Court granted injunctive relief, ordering
the ZHB to conduct hearings on the Congregation’s
application for a special exception. The Court denied the
Township’s motion for reconsideration.

The Township appealed, and asked for a stay of the
injunction, both in the District Court and in this Court, but
those applications were also denied. The ZHB held the
special exception hearing and concluded that the proposed
use would not "adversely affect the health, safety and
welfare of the community," and that the use was
"consistent with the spirit, purpose, and intent of the
Ordinance." [3907a]. These are the requirements for a
special exception, which must be awarded if they are met.
The ZHB thus granted the Congregation a special exception
with some limitations aimed at traffic, light pollution, and
noise. [3907a-3909a]. Since then, the Township has also
approved the Congregation’s land development plan. The
Congregation, however, has not begun building on the
property; it awaits the outcome of the appeal brought in
this Court, and one brought in the Montgomery County
Court of Common Pleas by neighbors who oppose the
synagogue use. For reasons explained at length infra, given
the tenor of the District Court’s holding, which functionally

                                5


altered the Township’s zoning ordinance and poses a
continuing burden on its enforcement, we conclude that the
grant of the special exception did not moot the case, hence
we reject the Congregation’s mootness argument.

The District Court’s holding of unconstitutionality rested
on its reading of City of Cleburne v. Cleburne Living Center,
473 U.S. 432 (1985), where the Supreme Court concluded
that similarly situated group homes were impermissibly
treated differently because one home’s occupants were
mentally handicapped. The District Court in effect read City
of Cleburne as standing for the proposition that a
municipality’s decision to distinguish between land uses is
not rational if both uses, permitted and not-permitted, have
the same impact on the municipality’s asserted goals. In so
concluding, the District Court overlooked the threshold step
that must be taken under the City of Cleburne analysis--
the court must first conclude that the two land uses are
"similarly situated."

The Township submits that the Congregation’s use is
different from the other uses permitted by special
exception. It also contends that it had good reason to group
churches and other religious institutions in the CS-
Community Service District with other institutional uses,
such as hospitals and schools, and that it was not
irrational to allow outdoor recreation and certain other uses
in the R-1 Residential District (by special exception). The
Township invokes the well-established principle that, in the
federal Constitutional universe, federal courts accord
substantial deference to local government in setting land
use policy, and that only where a local government’s
distinction between similarly situated uses is not rationally
related to a legitimate state goal, or where the goal itself is
not legitimate, will a federal court upset a local
government’s land use policy determination. It argues that
the distinction between religious uses and other uses is not
only rational, but that under the District Court’s analysis,
any use, or at least any religious use with a similar impact,
can automatically locate in the R-1 Residential District with
special exception thereby giving a preference to religion, in
contradiction of the principles of local land use law.

                                  6


The Township’s arguments are forceful, but we will not
resolve them here, because the District Court did not
address the similarity of uses question, and the Abington
Ordinance is not so clearly drafted that we may definitively
determine what uses are permitted by special exception on
our own. Put differently, because the District Court failed to
evaluate whether the Congregation was similarly situated,
i.e., similar in "kind," to the uses that are currently
permitted in the R-1 Residential District, we must vacate its
order and remand so that the proper inquiry may be
conducted. Since the special exception hearing was held
pursuant to an improper order by the District Court, the
resulting grant of special exception by the ZHB and the
land use permit issued by the Township are null and void.

I. Facts and Procedural History

The Congregation is a Reform Jewish Synagogue,
founded in 1994, which conducts religious services, Hebrew
classes, and other related activities at various locations in
eastern Montgomery County. The Township is a political
subdivision located in eastern Montgomery County. It
operates pursuant to the First Class Township Code of
Pennsylvania, 53 P.S. S 55101 et seq., and with respect to
zoning, subdivision and land use matters, in accordance
with Pennsylvania Municipalities Planning Code, 53 P.S.
S 101 01 et seq. The ZHB has jurisdiction to hear and
render final adjudication on, inter alia, applications by
landowners for variances from and special exceptions under
the Township’s Zoning Ordinance. The ZHB and the
Township are separate entities. As we understand the
practice, the Township does not customarily appear before
the ZHB to state a position on an application, although it
is not foreclosed from doing so.

A. The History of the Relevant Zoning Ordinance

In 1977, The Township developed a Comprehensive Plan
for development within the Township. [337a]. As part of this
Comprehensive Plan, The Township enacted Ordinance No.
1469, which established a "V-Residence" District. Article III,
S 301. [477a, 512a]. In the V-Residence District, pursuant

                                7


to S 301.2, certain uses were permitted as of right: single-
family detached dwellings, tilling of the soil, township
administrative buildings, public libraries, public parks, play
or recreational areas, or any similar uses operated by the
Township or other governmental agencies. [512a]. Other
uses, such as churches, rectories, parish houses, convents,
monasteries and other similar institutions, were permitted
as "special exceptions"; the ZHB may grant a"special
exception" to certain predetermined uses and in so doing it
may attach conditions to the grant of the exception in order
to preserve the purpose of the zoning ordinance.

On March 8, 1990, The Township enacted Ordinance No.
1676, which amended S 301.2 of Ordinance No. 1469 (the
"V-Residence District"). [806a]. The amendment, as it
pertains to the issues in this case, eliminated all uses by
right except single-family detached dwellings, and accessory
uses on the same lot that are customarily incidental to
single-family dwellings. [806a]. All of the uses previously
permitted by special exception, including "religious" uses,
were eliminated. The purpose of this amendment, as stated
in the "Legislative Intent" of the Ordinance, was to create a
"low density" area for single-family detached dwelling units.
[806a].

On May 9, 1996, The Township re-classified its zoning
ordinances pursuant to Ordinance No. 1753 (the
"Ordinance"). [977a]. This Ordinance changed the
designation of The Township’s "low density residential
district" from V-Residence to R-1 Residential.[999a].
Section 301 of the Ordinance permitted the following uses
in R-1 by right: agriculture, livestock, single family
detached dwellings, conservation and recreation preserve.
[1000a]. Uses permitted by special exception include:
kennel (defined at 1074a), riding academy, municipal
complex (defined [at 1094a] to include municipal
administration buildings, libraries, police barracks, or road
maintenance facilities), outdoor recreation (defined in
Article IV, section 706(G)(6) of the 1996 Ordinance to
include "public 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 bar, pro shops, club

                                8


houses, country clubs"), emergency services, and utility
facilities (defined [at 1108a] to include, inter alia, train
stations and bus shelters). The stated purpose of the R-1
Residential District was "to provide low density, single
family, neighborhoods." [1000a].

Churches and other religious institutions, except those
that are legal, nonconforming uses, are not permitted in
R-1 Residential Districts.1 Although religious institutions
are not explicitly excluded by the language of the
Ordinance, they are de jure excluded from that particular
zone because they are not specifically listed among the uses
that may apply for special exceptions. Apparently, the only
option for a religious institution wishing to locate in an R-1
Residential District is to apply for a variance with the ZHB.
According to the Ordinance, a variance is a "grant of
relaxation by the [ZHB] from the dimensional and use
regulations of th[e] Ordinance, when such action will not be
considered contrary to the public interest, and where,
owing to conditions unique to the property, and not
resulting from the actions or situation of the applicant, a
literal enforcement of this code would result in undue and
unnecessary hardship." [997a].

The variance standard is very different from the special
exception standard because it requires the applicant to
demonstrate "unnecessary hardship," which requires
evidence that: "(1) the physical features of the property are
such that it cannot be used for a permitted purpose; or (2)
that the property can be conformed for a permitted use only
at a prohibitive expense; or (3) that the property has no
value for any purpose permitted by the zoning ordinance."
Hertzberg v. Zoning Bd. of Adjustment, 554 Pa. 249, 721
A.2d 43, 47 (1998). In contrast, for an application to merit
a special exception, it need only establish that the zoning
_________________________________________________________________

1. A non-conforming use is defined as: "A building, lot, structure, sign or
use, which lawfully existed prior to the adoption, revision or amendment
of this Ordinance, but does not comply with zoning use or district
regulations by reasons of adoption, revision, or amendment of this
Ordinance." [993a; see also 1191a]. Of the 36 churches and synagogues
currently operating in the Township, 29 of them are legal, non-
conforming uses outside of the CS, M, and A-O Districts. 25 of those
places of worship are located in residential districts.

                                9


ordinance allows the use and that the particular use
applied for is consistent with the public interest. Ryan,
Pennsylvania Zoning Law and Practice, Vol. 2 SS 5.1.2,
6.1.5; Heck v. Zoning Hearing Bd., 39 Pa. Commw. 570, 397
A.2d 15 (1979). If that showing is made, the special
exception must be granted, though appropriate conditions
may be attached.

Religious institutions are permitted in the Township
under the Ordinance in the CS-Community Service District.
[1024a]. In fact, the CS-District was specifically designed to
provide for, inter alia, the religious needs of the Township
community. [1024a]. The Township has provided for other
institutional uses that are excluded from the R-1
Residential District in the CS-District, including hospitals,
schools, and community service centers. Religious
institutions are also permitted in the M-Mixed Use District
[1028a], and, by special exception, in the A-O
Apartment/Office District. [1019a].
B. The History of the Property At Issue

The real property in question is located at 1908 Robert
Road and is zoned R-1 Residential. [298a]. It consists of a
10.9-acre parcel of land, on which there are several
buildings. Prior to 1951, the property was a 38-acre piece
of land used as a residence by a family. At that time, there
were three buildings on the 10.9 acres which are the
subject of this lawsuit: a three-story masonry residence, a
detached garage, and a two-story auxiliary residence, all
constructed in the mid-twenties. [292a].

In 1951, the property was purchased by the Sisters of
Nazareth, an Order of Roman Catholic Nuns. The Sisters
constructed additions as well as other buildings, including
a chapel and a 13,300 square foot main building.[292a].
The property was used as a convent, [292a], and at its
peak, it was home to over 80 Sisters. [292a]. The nuns used
the convent to receive daily instruction on religious life,
engaging in prayer for up to two and a half hours per day.
[305a]. The Sisters had only limited contact with the
outside world; visitors to the property were limited to
visiting on special occasions, and visits would not occur

                                10


more than twice per year. [305a]. Ceremonies and religious
services were rarely attended by persons other than the
Sisters and their relatives. [305a]. On a daily basis, the
average number of vehicles parked at the property was five,
and the primary use of the property was as a residence.
[305a].

Until 1988, the 38-acre parcel had direct access to Valley
Road, a major road in The Township, by means of a long
driveway. In 1988, however, the Sisters subdivided the
parcel and sold off nearly 28 acres as residential property,
leaving the 10.9-acre plot before us, but relinquishing
direct access to Valley Road. Then, in 1995, due to a
decline in the number of nuns on the property, the Sisters
leased the property to a community of Greek Orthodox
Monks for religious services, family retreats, religious
study, and prayer. [293a, 307a]. Since the 1990
amendments had removed religious uses from the list of
uses permitted by special exception, the Monks filed an
application with the ZHB seeking a variance from the
Ordinance to use the property as a monastery. The ZHB
granted this request, with certain conditions. [291a]. One of
the conditions was that the property deed be restricted to
prevent further subdivision, and that a driveway be
constructed off of Robert Road (a 30-foot wide cul-de-sac
road). A stone driveway off of Robert Road is currently the
only access to the property. The surrounding area is
completely residential, consisting of well-kept single-family
homes on large plots abutting shady streets. The immediate
block from which the driveway extends ends in a cul-de-
sac.
C. History of the Current Litigation

In August 1999, the Congregation entered into an
agreement with the Sisters to purchase the property, and to
use it as a place for worship. [304a]. The Congregation filed
an application with the ZHB, seeking to use the property as
an existing non conforming use, or for a variance, or special
exception. [2795a]. The Congregation proposed the
following regularly scheduled uses: (1) Shabbat services on
alternate Fridays and Saturdays for up to an hour and a
half; (2) Hebrew classes on Wednesdays from 4pm to 8pm;

                                11


and (3) religious classes for 2 hours on Sunday mornings.
[1360a-1368a]. Other uses would include four High Holy
Day services in the fall, religious meetings, Bar and Bat
Mitzvah services, outdoor wedding ceremonies, and other
similar celebrations and receptions to follow. [1369a-1379a,
1435a]. As part of its proposal, the Congregation sought
permission to change the driveways, roadways, and parking
lots on the property. [2798a].

The ZHB rejected the Congregation’s application,
concluding that the principal use of the property by the
Sisters was residential, and that the chapel was an
accessory use to the property. The ZHB further noted that
the principal use by the Monks was also residential. The
ZHB concluded that the use of the property by the Sisters
was as a residential use in the V-Residential District, which
was lawfully permitted there. The ZHB ruled that if the use
by the Sisters was non-conforming, the Sisters had
abandoned the non-conforming use by filing a preliminary
subdivision plan (and by its subsequent approval) but that,
at all events, the grant of a variance to the Monks
extinguished any non-conforming use. Since the
Congregation’s proposed use of the property was for
religious not residential purposes, there was no continuing
non-conforming use from the Sisters or the Monks. Since
religious institutions are not permitted in the R-1
Residential District, the ZHB denied the request for
continuation as a non-conforming use.

The ZHB also concluded that the Congregation had failed
to show that it was entitled to a variance because there
were no unique physical features of the property that would
preclude it from being used as zoned, and that the
Congregation had failed to demonstrate unnecessary
hardship. In so concluding, the ZHB observed that the
Ordinance does not impose a substantial burden on the
religious exercise of any person because religious
institutions are permitted in three other zoning districts
within the Township. [297a-320a].

The Congregation had the right to file an appeal to the
Court of Common Pleas of Montgomery County to challenge
the ZHB’s decision. Instead, the Congregation filed the
present lawsuit in the District Court for the Eastern District
                                12


of Pennsylvania, seeking injunctive, declaratory and
compensatory relief for: alleged civil rights violations
pursuant to 42 U.S.C. S 1983; violation of the Religious
Land Use and Institutionalized Persons Act of 2000, 42
U.S.C. S 2000 et seq.; the Municipalities Planning Code, 53
P.S. S 11001A-11005A; Article I, sections 3, 7, 20 and 26 of
the Pennsylvania Constitution; and the First and
Fourteenth Amendments of the United States Constitution.
[1a-29a].

The Congregation moved for partial summary judgment
on its claim that the Ordinance is unreasonable on its face
because it prohibits houses of worship from locating in
residential neighborhoods. Essentially, this was a challenge
to the facial validity of the Ordinance based on both state
and federal constitutional law; the Congregation did not
argue or present evidence that the Ordinance was
unconstitutional as applied. The District Court granted the
Congregation’s motion for partial summary judgment. In so
doing, the Court declined to rule on the facial validity of the
Ordinance. Instead, based on the argument presented in
the Township’s cross-motion for summary judgment, the
Court concluded that the Ordinance, as applied, violated
the Equal Protection Clause of the United States
Constitution. Congregation Kol Ami v. Abington Township,
161 F. Supp.2d 432, 435-37 (E.D.Pa. 2001).

The Court relied on the Supreme Court’s decision in City
of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985),
which applied rational basis review to a zoning ordinance
that required special-use permits to operate group homes
for the mentally handicapped but not similar homes for
other occupants, such as senior citizens and fraternities.
The critical portions of the District Court’s ruling were
terse. First, it explained the relevance of Cleburne:

       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. 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 permit."

                                13


Congregation Kol Ami, 161 F. Supp.2d at 436 (quoting
Cleburne, 473 U.S. at 450). In so doing, (here and later), the
Court looked to only part of the analysis in Cleburne for the
proposition that a zoning ordinance is not rational when
the impact of permitted and non-permitted uses is similar.

The Court then went on to state:

       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, country 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 Constitution.

Congregation Kol Ami, 161 F. Supp.2d at 437. These
statements were made without elaboration or citation.
However, in their wake the Court granted injunctive relief to
the Congregation, ordering the ZHB to conduct hearings on
the Congregation’s application for a special exception. The
Township moved for reconsideration, which was denied.

The Township appealed and asked for a stay of the
injunction, both in the District Court and in this Court, but
these applications were denied. The ZHB held the special
exception hearing between August 6 and August 9, 2001.
On August 15, 2001, it concluded that the use would not
"adversely affect the health, safety and welfare of the
community," and that it was "consistent with the spirit,
purpose, and intent of the Ordinance." [3907a]. Thus, the
ZHB allowed the use by the Congregation, albeit with some
limitations aimed at traffic, light pollution, and noise.
[3907a-3909a]. Since then, The Township has also
approved the Congregation’s land development plan.

                                14


However, the Congregation has not begun construction as
it awaits the result of the appeals in this Court, and by
neighbors in the Court of Common Pleas. See
http://www.rluipa.com/cases/KolAmi.html.

We have jurisdiction pursuant to 28 U.S.C. S 1292(a)(1).
We review the grant of summary judgment de novo . See
Olson v. General Electric Astrospace, 101 F.3d 947, 951 (3d
Cir. 1996). We apply the same standard as the District
Court in determining whether summary judgment was
appropriate. Michael v. Shiley, Inc., 46 F.3d 1316, 1321 (3d
Cir. 1995). Summary judgment should be granted when
there are no genuine issues of material fact. Fed. R. Civ. P.
56(c). An issue is genuine if a reasonable jury could
possibly hold in the nonmovant’s favor on that issue. Boyle
v. County of Allegheny Pennsylvania, 139 F.3d 387, 393 (3d
Cir. 1998).

II. Mootness

As a preliminary matter, we must address the
Congregation’s argument that in view of the fact that the
ZHB has granted a special exception, there is no
meaningful relief that this court can give, and that the case
is therefore moot. "A case is moot when issues presented
are no longer ‘live’ or the parties lack a legally cognizable
interest in the outcome." Erie v. Pap’s A.M. , 529 U.S. 277,
287 (2000) (internal citations omitted); see also Harris v.
City of Philadelphia, 47 F.3d 1311, 1326 (3d Cir. 1995) ("As
a general principle, once a party has complied with a court
order or injunction, and has not been penalized or suffered
any prejudice that could be remedied on appeal, the appeal
is moot," but also stating that a case is not moot where
there exists a " ‘subject matter upon which the judgment of
the court can operate’ to make a substantive determination
on the merits.") (internal citation omitted).

The Congregation argues that the Township’s appeal of
the District Court’s July 20, 2001 Order granting injunctive
relief became moot on August 15, 2001, the day on which
the Township fully complied with that Order by holding a
hearing and issuing a written decision on the
Congregation’s special exception application. In its

                                15


submission, once the special exception hearing was held,
the injunctive relief ordered by the District Court was fully
executed and could not be undone. To properly address
this contention we must assess the character of the District
Court’s ruling and its effect on the parties.

Under the Ordinance, places of worship are not among
the uses that are permitted to apply for a special exception.
Such an omission is a de jure exclusion of that use from
the R-1 Residential District. In its opinion, the District
Court took note of the ZHB’s failure to specifically address
plaintiffs’ request for a special exception, the ZHB’s
conclusion that the Abington Ordinance does not permit
places of worship to locate in an R-1 district, and its
conclusion that the Ordinance does not specifically allow a
special exception for places of worship. The Court then
reasoned that a "house of worship inherently further[s] the
public welfare," and that the Township had no rational
reason to allow some uses by special exception, such as a
country club [subsumed under "outdoor recreation]," but
not the Congregation. Congregation Kol Ami, 161 F.
Supp.2d at 437.

The District Court’s conclusion appears to be a blanket
determination that, as a category, places of worship cannot
be excluded from residential districts. In combination with
the Court’s Order requiring the ZHB to hold a special
exception hearing, the Court functionally altered The
Township’s Ordinance in two ways. First, it gave the ZHB
authority it did not otherwise possess--the authority to
entertain a request for a special exception by a place of
worship in an R-1 Residential District. Prior to the District
Court’s Order, the only means for a place of worship to
obtain permission to locate in the R-1 Residential District
was by way of a variance. By permitting places of worship
to apply for a special exception, the District Court altered
the standard of proof that the Congregation must meet in
order to obtain approval from the ZHB by removing the
much more onerous requirement that the Congregation
prove "unnecessary hardship."

As previously mentioned, in order to prove "unnecessary
hardship" an applicant must demonstrate that the land
cannot be used for a permitted purpose, that converting the

                                16


land so that it may be used for a permitted purpose is
prohibitively expensive, or that the property has no value
for any of the permitted purposes. In contrast, in order for
an application to get a special exception, it need only
establish that the zoning ordinance allows the use and that
the particular use applied for is consistent with the public
interest. Ryan, Pennsylvania Zoning Law and Practice, Vol.
2 SS 5.1.2, 6.1.5; Heck v. Zoning Hearing Bd., supra.
Moreover, if a party meets the requirements of a special
exception, the ZHB does not have discretion to deny the
special exception -- it must be granted. Thus, the District
Court’s determination allows religious institutions to get
permission to locate in the R-1 Residential District under a
burden of proof significantly lower than that required under
the Ordinance.

Second, the Court’s categorical determination that
houses of worship further the public interest opened the
door for other places of worship to request the same
treatment -- a special exception hearing in residential
zones where they are currently excluded. Supreme Court
precedent is clear that the First Amendment prohibits
municipalities from applying their laws differently among
various religious groups. See, e.g., Larson v. Valente, 456
U.S. 228 (1982) (finding state statute that regulated
charitable solicitations preferred one denomination over
another and therefore violated the Establishment Clause);
Fowler v. Rhode Island, 345 U.S. 67 (1957) (holding
application of ordinance that prohibited preaching in public
parks only against Jehovah’s Witnesses but not other
ministers violated First and Fourteenth Amendments).
Further, discrimination against a future similarly situated
religious landowner would be a clear violation of the Equal
Protection Clause. See, e.g., Cleburne, supra; Cornerstone
Bible Church v. Hastings, 948 F.2d 464 (8th Cir. 1991). As
a result, the District Court’s determination altered
Abington’s zoning plan by giving the ZHB authority to grant
a special exception to places of worship in an R-1
Residential District not only in this case, but also in future
situations where a place of worship seeks to locate in such
a district.

These effects, which operate by virtue of the precedential

                                17
effect of the District Court’s opinion (unless reversed on
appeal), impose a burden on the Township. As long as a
government is saddled with an "ongoing injury" caused by
a judgment that its law is unconstitutional, the case is not
moot. Erie, 529 U.S. at 288. In Erie, the owner of a nude
dancing establishment prevailed in the Pennsylvania
Supreme Court, which found the aspect of a city ordinance
banning nude dancing unconstitutional under the First
Amendment. Before the U.S. Supreme Court heard the
city’s appeal, however, the owner ceased to offer nude
dancing at his establishment and therefore argued that the
case was moot. Id. at 286-87. The Court disagreed and
concluded that the city suffered an "ongoing injury because
it is barred from enforcing the public nudity provisions of
its ordinance." Id. at 288. Such is the case here, where
Abington is barred from enforcing its zoning ordinance as
written. Thus, we conclude that Abington has "suffered . . .
prejudice" as a result of complying with the District Court’s
Order, and that there is an ongoing injury that can be
remedied on appeal. Harris, 47 F.3d at 1326; see also 13A
Charles A. Wright, et al., Federal Practice and Procedure
S 3533.10 (1984).2

The Congregation makes much of the fact that the
District Court did not order the ZHB to grant the special
exception, but only required it to hold a hearing. That is,
because the ZHB’s determination to grant the special
exception is said to have been "voluntary," the Congregation
submits that we do not have any power to undo what has
been "voluntarily" done. We disagree. This argument
overlooks the fact that the ZHB was completely without
authority to consider the request for a special exception
absent the District Court’s Order, which compelled it to do
so. We conclude that the District Court’s Order requiring
the hearing, but not a particular outcome, is not a
jurisdictional obstacle, and that this appeal is not moot.
Hence, we turn to the merits.
_________________________________________________________________

2. Additionally, the neighbors residing near the proposed site are also
aggrieved by the District Court’s decision, which places an intense use
of property squarely within what has heretofore been a quiet residential
neighborhood. They are currently challenging the ZHB’s approval of a
special exception in the Montgomery County Court of Common Pleas.

                                 18


III. Equal Protection Analysis

A.

The Equal Protection Clause of the Fourteenth
Amendment commands that no State shall "deny to any
person within its jurisdiction the equal protection of the
laws." U.S. Const. Amend. XIV. This is "essentially a
direction that all persons similarly situated should be
treated alike." City of Cleburne, 473 U.S. at 439 (citing
Plyler v. Doe, 457 U.S. 202, 216 (1982)). However, courts
are reluctant to overturn governmental action on the
ground that it denies equal protection of the laws:

       The Constitution presumes that, absent some reason
       to infer antipathy, even improvident decisions will
       eventually be rectified by the democratic process and
       that judicial intervention is generally unwarranted no
       matter how unwisely we may think a political branch
       has acted. Thus, we will not overturn such a statute
       unless the varying treatment of different groups or
       persons is so unrelated to the achievement of any
       combination of legitimate purposes that we can only
       conclude that the legislature’s actions were irrational.

Vance v. Bradley, 440 U.S. 93, 97 (1979).

Like other economic and social legislation, land use
ordinances that do not classify by race, alienage, or
national origin, will survive an attack based on the Equal
Protection Clause if the law is " ‘reasonable, not arbitrary’
and bears ‘a rational relationship to a (permissible) state
objective.’ " Village of Belle Terre v. Boraas, 416 U.S. 1, 8
(1974). However, land use regulations must possess a
legitimate interest in promoting the public health, safety,
morals, and the general welfare of its citizens in order to
pass scrutiny. See Village of Euclid v. Ambler Realty Co.,
272 U.S. 365, 395 (1926) (citation omitted). Land use
ordinances will be deemed "irrational" when a plaintiff
demonstrates either that the state interest is illegitimate (an
ends-focus) or that the chosen classification is not
rationally related to the interest (a means-focus).

While the Supreme Court has not yet directly addressed

                                19


the constitutional incidents of municipal restrictions on use
of land by religious institutions,3 its application of the
rational basis test in cases involving other alleged liberty
restrictions by municipalities exercising land use authority
suggests that the same highly deferential standard of
review is applicable here. In Village of Euclid , a zoning
ordinance classified different portions of land into six
categories. The owners of a vacant plot of land that fell
partially within a zone restricted to two-family dwellings
filed suit claiming that they were being deprived of liberty
and property without due process within the meaning of
the Fourteenth Amendment. They argued that the land had
been held for industrial development, and that under the
ordinance the land would be greatly reduced in value since
it could not be put to that use.

The Court noted that the case involved the "validity of
what is really the crux of the more recent zoning legislation,
namely, the creation and maintenance of residential
districts, from which business and trade of every sort,
including hotels and apartment houses, are excluded." 272
U.S. at 390. The Court proceeded by observing the logic of
such a design in land use -- that "the segregation of
residential, business, and industrial buildings" would
"increase the safety and security of home life; greatly tend
_________________________________________________________________

3. See, e.g., Christian Gospel Church, Inc. v. City of San Francisco, 896
F.2d 1221 (9th Cir. 1990), cert. denied, 498 U.S. 999 (1991) (holding
that denying a permit to establish a church in a residential area did not
violate the Free Exercise Clause because the zoning system protected
government interests, nor did it violate the Equal Protection Clause
because there was no discrimination against appellant); Messiah Baptist
Church v. County of Jefferson, 859 F.2d 820 (10th Cir. 1988), cert.
denied, 490 U.S. 1005 (1989) (holding that denial of a permit to build a
church was not a violation of the Due Process of Free Exercise Clause);
Grosz v. City of Miami Beach, 721 F.2d 729 (11th Cir. 1983), cert.
denied, 469 U.S. 827 (1984) (holding that a zoning law affecting
appellee’s ability to conduct religious services in his home was not a
violation of the Free Exercise Clause or the Due Process Clause);
Lakewood, Ohio Congregation of Jehovah’s Witnesses v. City of
Lakewood, 699 F.2d 303 (6th Cir.), cert. denied, 104 S.Ct. 72 (1983)
(holding that denial of a variance to build a church in a residential area
was not a violation of the Free Exercise Clause of the Due Process
Clause because it was a legitimate exercise of the city’s police power).

                                20


to prevent street accidents, especially to children; by
reducing the traffic and resulting confusion in residential
sections; decrease noise and other conditions which
produce or intensify nervous disorders; preserve a more
favorable environment in which to rear children, etc." Id. at
394. Thus, the Court sustained the ordinance as"having [a]
substantial relation to the public health, safety, morals, or
general welfare." Id. The Court further noted that zoning
ordinances should be treated deferentially like other
"practice-forbidding laws," and be upheld even if uses that
"are neither offensive or dangerous will share the same
fate." Id. at 388.

Similarly, the Court upheld against attack the zoning
ordinance in Village of Belle Terre. In that case, the Court
addressed the validity of a zoning ordinance that restricted
a portion of the village to one-family dwellings. The term
"family" was defined to mean individuals related by blood,
adoption, marriage, or living and cooking together as a
single housekeeping unit, but it excluded the latter category
if the household consisted of more than two individuals
who were not related by blood, adoption, or marriage. Six
students attending college at the State University at Stony
Brook, none of whom was related by blood, adoption, or
marriage, brought suit challenging the validity of the
ordinance. The Court observed that the "regimes of
boarding houses, fraternity houses, and the like present
urban problems. More people occupy a given space; more
cars rather continuously pass by; more cars are parked;
noise travels with crowds." 416 U.S. at 9. Thus, the Court
concluded that the ordinance was rationally related to a
legitimate state objective, holding that a "quiet place where
yards are wide, people few, and motor vehicles restricted
are legitimate guidelines in a land-use project addressed to
family needs. . . . It is ample to lay out zones where family
values, youth values, and the blessings of quiet seclusion
and clean air make the area a sanctuary for people." Id.

As the foregoing cases make clear, local zoning
ordinances are subject to a very forgiving standard of
review. That zoning ordinances are subject to such
deferential review, however, does not mean that they are
subject to no meaningful review. For example, in City of

                                21


Cleburne, which we will discuss extensively in Section IV
infra, the Court struck down an ordinance requiring group
homes for the "feebleminded" to apply for special use
permits in the same zone where other groups homes, such
as fraternities and homes for the aged, were permitted by
right. Applying rational basis review, the Court concluded
that the "State may not rely on a classification whose
relationship to an asserted goal is so attenuated as to
render the distinction arbitrary and irrational. Furthermore,
some objectives -- such as ‘a bare . . . desire to harm a
politically unpopular group’ -- are not legitimate state
interests." City of Cleburne, 473 U.S. at 446-47 (internal
citations omitted); see also Midnight Sessions, Ltd. v. City of
Philadelphia, 945 F.2d 667, 685 (3d Cir. 1991) (finding
"negative attitudes or biases, unfounded fears or
speculation, prejudice, self-interest, or ignorance[are]
arbitrary and irrational" ends).4

Although a finding of bare animus towards a group or
"fear, unsubstantiated by factors which are properly
cognizable in a zoning proceeding," is not necessary for a
zoning ordinance to fail under an equal protection
challenge, such evidence is likely sufficient. City of
Cleburne, 473 U.S. at 448. However, absent such animus or
_________________________________________________________________

4. Likewise, in Seattle Title Trust Co. v. Roberge, 278 U.S. 116 (1928), the
Court struck down a zoning ordinance that permitted a "philanthropic
home for children or for old people" in a particular district "when the
written consent shall have been obtained of the owners of two-thirds of
the property within four hundred feet of the proposed building." Id. at
118. The Court noted that owners could "withhold consent for selfish
reasons or arbitrarily and may subject the trustee[owner] to their will or
caprice." Id. at 122. Thus, the Court struck down the ordinance because
a zoning " ‘restriction cannot be imposed if it does not bear a substantial
relation to the public health, safety, morals, or general welfare.’ " Id. at
121 (quoting Nectow v. Cambridge, 277 U.S. 183, 188 (1928)). In that
case, Seattle had failed to show how the maintenance and construction
of the homes for the aged would "work any injury, inconvenience or
annoyance to the community, the district or any person." Id. at 122; see
also Hooper v. Barnalillo County Assessor, 472 U.S. 612, 619-20 (1985)
(finding legislation not rationally related to purpose of encouraging
Vietnam veterans to settle in New Mexico where legislation might have
discouraged some veterans from settling there).

                                22
other improper motive, a land use ordinance will typically
be upheld.

B.

As the preceding more general discussion suggests, the
federal courts have given states and local communities
broad latitude to determine their zoning plans. Indeed, land
use law is one of the bastions of local control, largely free
of federal intervention. As the Supreme Court stated in
Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68
(1981), "[t]he power of local governments to zone and
control land use is undoubtedly broad and its proper
exercise is an essential aspect of achieving a satisfactory
quality of life in both urban and rural communities.. . .
[T]he courts generally have emphasized the breadth of
municipal power to control land use . . . ." See also FERC
v. Mississippi, 456 U.S. 742, 768 n.30 (1982) ("[R]egulation
of land use is perhaps the quintessential state activity.");
Izzo v. River Edge, 843 F.2d 765, 769 (3d Cir. 1988) ("Land
use policy customarily has been considered a feature of
local government and an area in which the tenets of
federalism are particularly strong.").

The breadth of this power, as noted by the Court in
Village of Belle Terre, 416 U.S. at 9, "is not confined to
elimination of filth, stench, and unhealthy places. It is
ample to lay out zones where family values, youth values,
and the blessings of quiet seclusion and clean air make the
area a sanctuary for people." A necessary corollary of the
extensive zoning authority bestowed upon local
municipalities, including the authority to create exclusively
residential districts, is the authority to make distinctions
between different uses and to exclude some uses within
certain zones. Indeed, zoning is by its very design
discriminatory, and that, alone, does not render it invalid.

Concomitantly, in Lakewood, Oh. Congregation of
Jehovah’s Witnesses, Inc. v. City of Lakewood, 699 F.2d
303 (6th Cir. 1983), the Sixth Circuit upheld a zoning
ordinance that prohibited the construction of church
buildings in virtually all residential districts of the city
using rational basis review. When the Congregation of

                                23


Jehovah’s Witnesses was denied a permit to build a church
on a plot of land that the Congregation purchased in an
area zoned for single-family dwellings, the Congregation
filed suit alleging that Lakewood’s ordinance, which created
areas exclusively for residential use, violated the Free
Exercise Clause of the First Amendment. Noting that, under
cases such as Village of Euclid and Village of Belle Terre,
the city "may, within constitutional limits, zone to preserve
a peaceful sanctuary for its citizens," the Sixth Circuit
observed that the "broad lines" drawn by the city "to protect
its tranquil neighborhoods" were a " ‘reasonable margin to
insure effective enforcement’ of quiet residential zones." Id.
at 308-09. Thus, the Court held that the "ordinance is
constitutional although it creates exclusive residential
districts and thereby prohibits the construction of church
buildings in the districts." Id.

Cases such as Lakewood, as well as Village of Euclid and
Village of Belle Terre, demonstrate the breadth of a
municipality’s power to discriminate in the land use
context. Indeed, because the purpose of zoning ordinances
is to distinguish among uses in order to draft
comprehensive municipal plans, a degree of arbitrariness is
inevitable. The question presented in these cases is when
does a distinction cross the constitutional line. As long as
a municipality has a rational basis for distinguishing
between uses, and that distinction is related to the
municipality’s legitimate goals, then federal courts will be
reluctant to conclude that the ordinance is improper.

IV. City of Cleburne and "Similarly Situated" Uses

While City of Cleburne ultimately turned on the fact that
the city held an irrational animus toward the mentally
retarded, the Court provided a useful roadmap for
analyzing equal protection challenges of zoning ordinances.
City of Cleburne made two determinations crucial to the
outcome in the case: 1) the proposed use, a group home for
the mentally retarded, was similarly situated to the allowed
uses, other group homes, pursuant to the zoning
ordinance, City of Cleburne, 473 U.S. at 447-50; and 2)
there was no rational reason behind the differential
treatment of the similarly situated uses, id. at 450, 461,

                                24


which appears to have been a function of animus against
the retarded. Notably, the Court’s holding that there was no
rational basis for the city’s distinction between the CLC and
the other permitted uses followed only after the Court
determined that CLC and the other permitted uses were
"similarly situated." This two-step inquiry properly places
the initial burden on the complaining party first to
demonstrate that it is "similarly situated" to an entity that
it is being treated differently before the local municipality
must offer a justification for its ordinance.

Of course, the nature of the issue in City of Cleburne
rendered quite easy the determination that CLC was
similarly situated to the other permitted uses. The Court
was comparing uses that were obviously similarly situated,
so that the inquiry into whether the rationale offered by the
city -- that the uses would have a different impact --
became the crux of the decision. The Court thus framed the
question before it as follows: "May the city require the
permit for this facility when other care and multiple-
dwelling facilities are freely permitted?" id. at 448; it
presumed that it was comparing similar uses. Yet, in
answering the question presented, the Court relied on the
fact that the impact on CLC would have to be different from
the other similar uses, and not just compared with other,
dissimilar uses permitted in the district. The Court noted
that the mentally retarded are "different," but that this
difference was "largely irrelevant unless the . .. home and
those who would occupy it would threaten legitimate
interests of the city in a way that other permitted uses such
as boarding houses and hospitals would not." Id. (emphasis
added). The focus, then, was first and foremost on whether
similarly situated uses were being treated differently.

Other courts have tracked the two-step analysis laid out
in City of Cleburne, determining first if the uses are
"similarly situated" and, if they are, asking if there is a
rational basis for distinguishing between them. In
Cornerstone Bible Church v. Hastings, supra , the Eighth
Circuit relied on City of Cleburne and required the city to
provide a rational basis for the "apparent unequal
treatment of similarly situated entities" only after first
concluding that the church was similarly situated to

                                25


permitted uses in a commercial zoning district. 948 F.2d at
472. Similarly, in Christian Gospel Church v. San Francisco,
896 F.2d 1221 (9th Cir. 1990), a church sought a permit to
build a church in an area zoned for single-family
residences. The Court stated that "[i]n order to prevail, the
Church must make a showing that a class that is similarly
situated has been treated disparately." Id. at 1225. In
concluding that there was no equal protection violation, the
Court observed that the church "was treated no differently
than a school or community center would have been," and,
thus, that the church had failed to establish that other
similarly situated uses had been treated differently. Id.

In sum, the first inquiry a court must make in an equal
protection challenge to a zoning ordinance is to examine
whether the complaining party is similarly situated to other
uses that are either permitted as of right, or by special
permit, in a certain zone. If, and only if, the entities are
similarly situated, then the city must justify its different
treatment of the two, perhaps by citing to the different
impact that such entities may have on the asserted goal of
the zoning plan.

V. Application to the Abington Ordinance

A. The District Court’s Approach

As noted above, the Congregation moved for partial
summary judgment on the ground that the Ordinance was
facially unconstitutional under the Equal Protection Clause
and the Due Process Clause. The District Court, however,
proceeded to evaluate whether the Ordinance violated the
Equal Protection Clause as applied, and did so in order to
"avoid making [an] unnecessarily broad constitutional
judgment." Congregation Kol Ami, 161 F. Supp.2d at 436.

Relying on City of Cleburne, the District Court concluded
that the Ordinance was unconstitutional as applied to the
Congregation because it did not permit the Congregation to
apply for a special exception in an R-1 Residential District.
As the District Court viewed it, the issue was whether the
Township’s scheme was rationally related to its proffered
reason for excluding the Congregation -- a concern over

                                26


traffic, light, and noise pollution. That is, the question was
whether it was permissible for the Township to allow uses
other than residences in the R-1 Residential District, while
simultaneously excluding the Congregation. The District
Court observed that Abington’s "traffic, noise and light
concerns also exist for the uses currently allowed to request
a special exception." Id. at 437. Thus, the court concluded
that the means employed by the Ordinance, i.e.,
distinguishing between country clubs and the
Congregation, was not rationally related to the goal of
preventing traffic, noise, and light pollution in the
neighborhood. Accordingly, the court ordered the ZHB to
hold a hearing on whether the Congregation was entitled to
a special exception.

The Township submits that the District Court erred in its
equal protection analysis, for which it relied primarily on
City of Cleburne. We agree. First, the District Court failed to
make the preliminary determination in the equal protection
analysis, as we identified above. See supra Section IV. That
is, the District Court failed to inquire whether the uses
permitted by special exception, such as country clubs, were
"similarly situated" to religious institutions or to the
Congregation in particular. Rather, the District Court
concluded that because the impact of the uses, either
similar or not, was the same, there could be no rational
basis for distinguishing between them, and that the
Congregation must therefore be able to apply for a special
exception.

At oral argument the Congregation claimed that the
District Court had focused, and that this Court should
focus, on the impact of the different uses because that was
the proffered reason offered by Abington for distinguishing
between country clubs and religious uses. However, based
on our review of City of Cleburne and other caselaw,
discussed supra Section III, we conclude that this argument
overlooks the fact that Abington need not justify its
exclusion of religious uses if such a use is not similarly
situated to, for example, a country club. As the Ninth
Circuit noted in Christian Gospel Church,"[i]n order to
prevail, the Church must make a showing that a class that
is similarly situated has been treated disparately." 896 F.2d

                                27


at 1225. It is not until this showing is made that it becomes
"incumbent on the City to provide a rational basis for [the]
apparent unequal treatment of similarly situated entities."
Cornerstone, 948 F.2d at 472. That Abington offered a
rationale based on the Congregation’s impact does not
relieve the Congregation of its burden to demonstrate, at
the outset, that it is similarly situated to the uses permitted
by special exception in the R-1 District.

So then, the Congregation must demonstrate that it is
similarly situated to other permitted entities by
demonstrating that it is similarly situated in relation to the
Township’s purpose in creating the R-1 Residential District.
See, e.g., Village of Euclid v. Ambler Realty, 272 U.S. 365,
388 (1926) ("[T]he question whether the power exists to
forbid the erection of a building of a particular kind or for
a particular use . . . is to be determined, not by an abstract
consideration of the building or of the thing considered
apart, but by considering it in connection with the
circumstances and the locality.").

The Township’s purpose in creating R-1, as stated in the
Ordinance, is to provide "low density single-family,
neighborhoods." [1000a]. The burden on the Congregation
is to demonstrate that it is just as compatible with this goal
as is, for example, a country club. To be sure, it may be
that an inquiry into whether something is "similarly
situated" will involve an inquiry into whether the two
entities have the same impact. But the analysis for equal
protection purposes is more nuanced. In City of Cleburne,
for example, the nature of the uses was dwellings for large
numbers of people. In this case, a court must evaluate not
only the impact of the Congregation as compared with a
country club, the example raised by the Congregation at
oral argument, but also what requirements or needs it may
have in order to operate within the neighborhood. Should
the Congregation prevail, the burden then shifts to the
Township to offer any evidence of a rational reason for
distinguishing between the uses.

We will turn presently to the similarity   of uses issue. But
first we are constrained to note that if   we were to conclude,
as the District Court did, that all uses   with a similar impact
must be treated alike, regardless of the   fact that such uses

                                28


may be fundamentally distinct, we would turn zoning law
on its head. That is, such a conclusion would mean not
only that churches must be allowed in a zone where
country clubs are allowed (based on the conclusion that
country clubs impact light, traffic and noise as well), but
also, by necessity, that a host of other uses that impact
light, traffic and noise must also be permitted in such
zones. But this would strip of any real meaning the
authority bestowed upon municipalities to zone since the
broad power to zone carries with it the corollary authority
to discriminate against a host of uses that a municipality
determines are not particularly suited for a certain district.
Placing the burden on the complaining party first to
establish that it is similarly situated with other, permitted
uses preserves the clearly established local authority in the
land use context. The District Court did not do this and
hence its judgment must be set aside. To the extent that
the District Court’s conclusion rests on the notion that a
"house of worship inherently further[s] the public welfare,"
Congregation Kol Ami, 161 F. Supp.2d at 437, it is seriously
problematic for the reasons set forth in the margin. 5

(Text continued on page 31)
_________________________________________________________________

5. The Congregation concedes that "a municipality may indeed decree
that some [uses] are suitable in a particular district and some are not.
For example, it could decide that it wishes to permit golf clubs in a
residential neighborhood, but exclude tennis clubs." The Congregation
also acknowledges that "a local government may generally exclude a use
from a residential zone because the use ‘lacks residential character,’
even if the excluded use would be similarly intense as those permitted."
However, the Congregation contends that a local government "may not
permit any of those things and prohibit houses of worship and rely on
‘compatibility with residential life’ as its reason for distinguishing the
uses." In its submission, "The Constitution privileges the activity of
religious worship at least to this extent: that it bars government from
finding nonreligious uses, other than ‘residences’ themselves, permissible
within a residential district, while excluding religious uses for reasons
related solely to the ‘character’ of the activity."

This argument, which is essentially a challenge to the facial validity of
the Ordinance under the Equal Protection Clause, is not necessary to
our disposition of the case, nor do we think it prudent to pass upon it
now; as the District Court noted in ruling on the Ordinance as applied
to the Congregation, and as the Supreme Court observed in City of
Cleburne, it is preferable, when possible, to"avoid making unnecessarily

                                29


broad constitutional judgments." City of Cleburne, 473 U.S. at 447; see
also Congregation Kol Ami, 161 F. Supp. 2d at 436. However, we do note
that this argument seems to boil down to a contention that religious
institutions get a preference in the land use context, and we think that
such a preference would pose a significant problem.

First, under Employment Div., Dep’t of Human Resources of Ore. v.
Smith, 494 U.S. 872 (1990), a local government must even-handedly
apply its laws and cannot single out religion for either discriminatory or
preferential treatment. Id. at 879 ("the right of free exercise does not
relieve an individual of the obligation to comply with a ‘valid and neutral
law of general applicability on the ground that the law proscribes (or
prescribes) conduct that his religion prescribes (or proscribes).’ "). As the
Court observed, "We have never held that an individual’s religious beliefs
excuse him from compliance with an otherwise valid law prohibiting
conduct that the State is free to regulate." Id. at 878-79. Second, a
conclusion that religious uses may not be excluded from residential
districts takes away the deference that has been granted to local
municipalities to make a determination whether or not such a use is
suited for a residential district. As stated at oral argument, it creates a
"cookie-cutter" approach to zoning that seems contrary to, at the very
least, the Supreme Court’s observation that "regulation of land use is
perhaps the quintessential state activity." FERC v. Missippi, 456 U.S.
742, 768 n.30 (1982).
Second, we are unpersuaded by the Congregation’s citation to several
decisions in state courts holding that houses of worship are inherently
compatible with residential zoning. See, e.g., State v. Maxwell, 617 P.2d
816 (Haw. 1980); Board of Zoning Appeals v. Schulte, 172 N.E.2d 39 (Ind.
1961); Diocese of Rochester v. Planning Bd. of Brighton, 136 N.E.2d 827
(N.Y. 1956); Congregation Committee v. City Council of Haltom City, 287
S.W.2d 700 (Tex. 1956); O’Brien v. Chicago, 105 N.E.2d 917 (Ill. 1952).
Although some jurisdictions have so held, not all states espouse this
ruling, see, e.g., Seward Chapel, Inc. v. City of Seward, 655 P.2d 1293
(Alaska 1982); Milwaukie Co. of Jehovah’s Witnesses v. Mullen, 214 Ore.
281 (1958); West Hartford Methodist Church v. Zoning Bd. of Appeals,
143 Conn. 263 (1956); Miami Beach United Lutheran Church of the
Epiphany v. Miami Beach, 82 So.2d 880 (Fla. 1955); Corporation of the
Presiding Bishop of the Church of Latter Day Saints v. Porterville, 203
P.2d 823 (Cal. Dist. Ct. App. 1949), nor does the Congregation cite a
federal case explicitly upholding this extremely broad principle. Most
importantly, although the Pennsylvania Supreme Court has not spoken
directly on this subject, lower court decisions demonstrate that it is not
good law in Pennsylvania. See, e.g., Church of Our Lord Jesus Christ v.

                                30


B. Similarity of Uses

Since we review the grant of (partial) summary judgment
de novo, see Olson v. General Electric Astrospace, 101 F.3d
947, 951 (3d Cir. 1996), we apply the same standard as the
District Court in determining whether summary judgment
was appropriate, Michael v. Shiley, Inc., 46 F.3d 1316, 1321
(3d Cir. 1995). Therefore, we may analyze whether the
Congregation is similarly situated to uses permitted by
special exception in the R-1 Residential District, i.e.,
whether, as submitted by the Congregation at oral
argument, Congregation Kol Ami is similarly situated to a
country club. We are tempted to do this because the
District Court, albeit in summary fashion, did so, and
because delay in disposition of this matter impedes the
Congregation’s relocation efforts.

In response to questioning at oral argument, the
Congregation contends that it is similarly situated to a
country club, a use that is permitted by special exception
in the R-1 Residential District. In its submission, a country
club conducts activities at the same time and with the
same number of people as the Congregation would, yet the
country club is permitted by special exception but the
Congregation is not. The Congregation submits that it
should make no difference that "Congregation" Kol Ami,
and not "Country Club" Kol Ami, applied for a special
exception.

If Abington permitted full-scale country clubs, this
argument might have some force. It is unclear however,
based on a review of the Abington Ordinance, whether
country clubs, as described by the Congregation, are
permitted in the R-1 Residential District in Abington.
Leaving aside the religious events conducted at the
synagogues, which have no analogue to any of the uses
_________________________________________________________________
Lower Merion Township, 34 Pa. D. & C.2d 239 (Mont. Co. Ct. of Comm.
Pleas 1964) (upholding generally applicable zoning regulation that denied
church a special exception to locate in a residential area). At all events,
the U.S. Supreme Court’s holding in Smith renders questionable the
continuing vitality of this line of state cases for the reasons discussed
above.

                                31


permitted in R-1 by special exception, the country club
described at oral argument was one that would be on a par
with a 450-family synagogue regularly hosting weddings
and Bar and Bat Mitzvah services.[OA Trans. At 62, 68,
93]. But we cannot tell whether the Ordinance would
permit such a club. The R-1 Residential District permits
"Outdoor Recreation" by special exception.[1001a]. Outdoor
recreation is then defined as follows:

       Public or private miniature golf courses, swimming
       pools, ball courts, tennis courts, ball fields, trails, and
       similar uses which are not enclosed in buildings and
       are operated on a commercial or membership basis,
       primarily for the use of patrons who do not reside on
       the same lot on premises. Outdoor recreation shall
       include any accessory use, such as snack bars, pro
       shops, club houses, country clubs, or similar uses
       which are designed and intended primarily for the use
       of patrons of the principal recreational use. Outdoor
       recreation shall not include amusement parks, open
       space recreational uses, overnight camping parks, or
       other uses specifically provided herein.

(Emphasis added). [1098a].

This ordinance is not a model of clarity, but its text does
not appear to permit full-scale country clubs. While
"country clubs" are permitted within the meaning of
"outdoor recreation," when read in connection with the
permitted "outdoor recreation" it seems that country clubs
like those envisioned by the Congregation are not
permitted. For example, the use permits miniature golf
courses, not full-scale golf courses, which is a limitation
that seems to restrict the possibility that any grand country
club could or would locate in the R-1 Residential District.
Rather, under the text of the Ordinance the type of country
club permitted in the R-1 Residential District appears
specifically designed to be an accessory use and, as such,
to serve those uses listed in the sentence preceding the list
of accessory uses, such as miniature golf courses,
swimming pools, and tennis courts. Under this reading, the
Congregation’s argument that such clubs could be used for

                                32


weddings and other celebrations would be inconsistent with
the precise language of the Ordinance.6
But this argument, which depends on a rather crabbed
characterization of "country club," is less than fully
convincing. At all events, because the ordinance is so
poorly written that we cannot be sure what it means, we
will remand so that the District Court can consider the
similarity issue in the first instance. In consideration of this
remand, we make a number of observations for the
guidance of the District Court.

First, we note that of the uses permitted by special
exception in the R-1 Residential District, the country club
comparison seems to be the only possible similarity. 7 We
are mindful that in City of Cleburne, the different housing
arrangements used for comparison were, essentially,
multiple housing arrangements. It is hard to describe how
one of the arrangements differed from the other insofar as
its use was concerned. Clearly, as the similarity of use
wanes, so too the inequality in treatment will be
increasingly tolerated under the law. On the basis of the
present record, it seems doubtful that the Congregation is
similarly situated to the other uses permitted by special
exception in R-1. Kennels, riding academies, and outdoor
recreation facilities are very low-intense uses of land that
preserve residential character. [1074a-75a, 1098a]. Train
_________________________________________________________________

6. We note, in this regard, that restaurants and clubs in general are not
permitted either by right or by special exception in the R-1 Residential
District. Rather, restaurants are permitted only in commercial districts,
such as in the Town Commercial District [1007a], Special Commercial
District [1010a], Planned Business Districts[1014a], Mixed Use Districts
[1028a], and as an accessory use to a golf course [1097a]. "Clubs" are
permitted in the Apartment-Office Districts [1018a], Mixed Use Districts
[1028a], and Recreation/Conservation Districts[1036a]. Country clubs of
the type conceived of by the Congregation, with full-scale golf courses,
are permitted in the Community Service Districts by conditional use
permit (where houses of worship are permitted by right), Apartment-
Office Districts, and Recreational/Conservation Districts by special
exception. [1019a, 1036a].

7. Although the notion that a country club and a synagogue are similarly
situated at first seems counterintuitive, perhaps an explanation (beyond
similarity of impacts) can be found.

                                33


stations and bus shelters are located adjacent to (usually
long established) public rights of way which transport
suburban commuters into Philadelphia and support
regional transportation. [1108a]. Municipal complexes,
emergency services, and utility facilities for sewers and
electricity are indispensable to the health, safety, and
administration of a residential community [1094a, 1108a].
All of these uses would appear to have functionally different
purposes than the Congregation, and would seem
compatible with a low-density residential neighborhood so
as to represent a lower likelihood of generating negative
secondary effects.
In addition to the fact that the uses permitted by right or
by special exception differ in scale and purpose from the
Congregation, we note that the Congregation’s proposed use
presents an intense use of the land, which the Township
might determine was incompatible with its residential
designation. Services and educational classes typically
require a large number of people to arrive and leave by car
at roughly the same time. As we previously observed, a
municipality may chart out a "quiet place where yards are
wide, people few, and motor vehicles restricted are
legitimate guidelines in a land-use project addressed to
family needs. . . . The police power is not confined to
elimination of filth, stench, and unhealthy places. It is
ample to lay out zones where . . . the blessings of quiet
seclusion and clean air make the area a sanctuary for
people." Village of Belle Terre, 446 U.S. at 9.

As represented at oral argument by the Township, the
Congregation stated at the initial proceeding before the ZHB
that it had a membership of 207 families and predicted a
growth to about 350 families. By the time the special
exception hearing was held, the Congregation was willing to
put a cap at 450 families. There is no doubt that the
Congregation is growing, probably due to a popular rabbi.
The Congregation may well grow larger. With a large and
growing congregation comes increased traffic and noise.
Indeed, at the special exception hearing, the Congregation
reported that it would need to expand the existing parking
lot to 137 spaces, but might need to make available an
additional 54 spaces for reserve parking for heavy-use

                                34


occasions. [3904a]. This matter might well be considered by
the District Court on remand.

C. Rationality

Since we remand for resolution of the similarity of uses
issue, we need not reach the ultimate rationality question,
even though the District Court did so. We do however, offer
some observations on that issue should the District Court
need to revisit it.

First, we note that there is no evidence of anti-Jewish or
anti-religious animus in the record. Although such evidence
is not necessary to sustain an equal protection violation,
this court has stated that "negative attitudes or biases,
unfounded fears or speculation, prejudice, self-interest, or
ignorance [are] arbitrary and irrational" ends that warrant
finding a statute unconstitutional. Midnight Sessions, 945
F.2d at 685.

Second, the facts of this case illustrate why religious uses
may be, in some cases, incompatible with a place of"quiet
seclusion." When conducting its Comprehensive Plan in
1992, the Township determined that institutional uses,
such as schools, churches, and hospitals, have distinctive
requirements that would best be addressed by placing them
in particular districts. Specifically, the Township concluded
that although these entities "provide many benefits to the
community," they also "have specific use, space and
locational requirements which are inherently different from
other land categories . . . [and] necessitate[ ] a separate
land use classification." [889a]. To that end, the CS-
Community Service District was established to meet the
particular needs of churches and other institutions.
[1024a].

In view of the enormously broad leeway afforded
municipalities in making land use classifications, see
discussion supra, it is strongly arguable that the
Township’s decision to group churches together with
schools, hospitals, and other institutions is rationally
related to the needs of these entities, their impact on
neighboring properties, and their inherent compatibility or
incompatibility with adjoining uses. If so, the foregoing

                                35


standard of review in land use cases will be met. Such
planning is the raison d’etre of zoning ordinances, and
broad latitude is given to authorities that rationally conduct
this municipal function. See Euclid, 272 U.S. at 388-89
("The inclusion of a reasonable margin to insure effective
enforcement, will not put upon a law, otherwise valid, the
stamp of invalidity.").

Finally, we do not believe land use planners can assume
anymore that religious uses are inherently compatible with
family and residential uses. See, e.g., Megachurches as
Minitowns, NYT F1, F6 (May 9, 2002). Churches may be
incompatible with residential zones, as they "bring
congestion; they generate traffic and create parking
problems; they can cause a deterioration of property values
in a residential zone . . . ." Jewish Reconstructionist
Synagogue v. Village of Roslyn Harbor, 38 N.Y.2d 283, 293
(1975). Thus, the District Court must refrain from making
a blanket determination that religious institutions are
inherently compatible, and, as argued by the Congregation,
"essential to residential zoning." See supra n.5. These
matters need to be considered on remand as well.

D. Conclusion

For the foregoing reasons, the judgment and order of the
District Court will be vacated and the case remanded for
further proceedings consistent with this opinion. The
special exception granted by the ZHB and the land use
permit issued by the Township are declared to be null and
void. Parties to bear their own costs.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
36
