Complaint United States v. Bensalem Township (E.D. Pa.)

Date: 
Thursday, July 21, 2016
Document Type: 
Complaints

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANlA

UNITED STATES OF AMERICA,

 

Plaintiff,

v.                                                                                    A TRUE COPY CERTIFlED TO FROM THE RECORD

                                                                                      DATED: JULY 21 2016

BENSALEM TOWNSHIP,

PENNSYLVANIA

Defendant.

 

 CIVIL ACTION NO.

COMPLAINT

The United States of America, by its undersigned attorneys, files this Complaint and

alleges:

Introduction

1. This is a civil action broug11t by the United States of America to enforce the

Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. §§

2000cc-2000cc-5, against Bensalem Township, Pennsylvania for its unlawful conduct in

violation of RLUIPA.

Jurisdiction, Venue, and Parties

2. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and

1345 and 42 U.S.C. § 2000cc-2(f).

3. Venue is proper under 28 U.S.C. § 139l(b) because the actions giving rise to this

action occurred in tho Eastern District of Pennsylvania.

4. Defendant Bensalem Township ("Bensalem" or "Defendant") is a municipality in

Bucks County, Pennsylvania.

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Facts

Land Use in Bensalem

5. Bensalem is governed by a mayor and a Council of five meinbers. Bensalem has

the authority to regulate and restrict the use of land and structures within its borders, including

by granting and denying requests for zoning variances.

6. For purposes of RLUIPA, Bensalem constitutes a "government." 42 U.S.C. §§

2000cc-5(4)(A)(i), (ii).

7. Bensalem' s zoning districts and the uses permitted within those districts are

codified in the Bensalem, PA Code of Ordinances ("Bensalem Code"). Under the Bensalem

Code, religious institutions are permitted only within the Institutional District. There are only

approximately thirty-five properties within the Institutional District in Bensalem. To locate

outside of the Institutional District, religious uses must seek zoning relief from Bensalem.

8. Non-religious assembly uses are permitted in many of Bensalem's zoning

districts, and are not limited to the Institutional District. For example, private education

institutions, "convalescent homes" or "sanitariums," and child, adult, or senior citizen day care

centers are permitted in the R-A Rural District; municipal buildings and adult or senior citizen

day care centers, are permitted in the R-11 Residential District; and businesses, professional

schools, colleges, and universities, are permitted in the BP Business Professional District.

9. To use a property for a use not pennitted in the property's zoning district(s) by the

Bensalem Code, an entity with a property interest may seek a zoning variance through the

Bensalem Township Zoning Hearing Board ("the Board"). The Board is appointed by the

Council.

10. Under the Bensalem Code, the Board may grant a zoning variance if an

application meets the state-wide standard set forth in the Pennsylvania Municipalities Planning

Code ("Pennsylvania Code"), 53 Pa. Stat. § 910.2(a)-(b). Under the Pennsylvania Code's

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standard, a zoning variance is available where "the zoning ordinance inflict[s] unnecessary

hardship upon the applicant." The Pennsylvania Code states that the applicant must demonstrate:

(1) unique physical characteristics of the property that create an unnecessary hardship; (2) that

the property cannot be developed according to the zoning ordinance; (3) that the applicant did

not create the hardship; (4) that a variance would not "alter the essential character" of the district,

nor impair appropriate use of adjacent properties, nor "be detrimental to the public welfare;" and

(5) that the variance requested is the minimum variance required to provide relief. The Board

may attach conditions in granting a variance.

11. Under the Bensalem Code, the Board evaluates variance applications on an

individualized, case-by-case basis. For purposes of RLUIPA, the variance process is a system of

regulations in which the township makes an "individualized assessment" regarding the zoning

applicant's property. 42 U.S,C. §§ 2000cc(a)(2)(A)-(C).

12. Many religious and non-religious assembly uses have received zoning variances

to use properties for uses notpermitted in their respective zoning districts. For example, all of

the following entities have received zoning variances to operate as uses not permitted in their

zoning districts:

• School Lane Charter School

• Holy Ghost Preparatory School

• Corinthian Colleges

• Gwenedd-Mercy College

• Shree Bhaktinidhi, Inc.

• Sarnarapan Hindu Temple

• Mongkoltepmunee Temple

13. In practice, the Board grants zoning variance applications without strictly

applying the standard in the Pennsylvania Code. Most religious and non-religious assemblies

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that have been granted use variances, including those in paragraph 12, did not meet the criteria

for a use variance in the Pennsylvania Code, because, aniong other things, they did not

demonstrate unique physical characteristics of their properties, nor that their properties could not

be developed according to the zoning ordinance.

The Bensalem Masjid

14. The Bensalem Masjid, Inc. ("the Bensalem Masjid") is a non-profit, Musiim

organization incorporated and existing under the laws of the State of Pennsylvania. The

Bensalem Masjid is a "religious assembly or institution," as defined by RLUIPA. 42 U.S.C. §

2000cc(2)(b)(l).

15. According to their Islamic faith, members of the Bensalem Masjid believe that

prayer should be conducted five times daily in a mosque and should be led by an "imam," a

religious leader. Their faith places a particular focus on the Friday afternoon prayer service. In

accordance with their religion, members of the Bensalem Masjid believe that there is value to

conducting prayers together with a congregation. According to their faith, congregants are

required to peiform ablution, "wudu," before prayers, which requires the washing of hands and

feet.

16. According to their Islamic faith, members of the Bensalem Masjid believe that a

mosque must be a deeded property dedicated to God, and that it must include a prayer area that is

oriented towards Mecca, that is specifically consecrated according to religious tenets, arid that

allows congregants to adhere to Islamic religious practices. A mosque has religiously significant

architectural elements, such as a dome and a minaret.

17. According to their Islamic faith, members of the Bensalem Masjid have religious

obligations beyond prayer. Members of the congregation are required to contribute to "zakat," a

financial donation for charitable purposes. Members are also required to raise their children in

the Islamic faith.

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18. The Bensalem Masjid does not have a mosque. There is no mosque in Bensalem

Township. The closest mosque is approximately twenty minutes away by car, which is too far

for many members of the Bensalem Masjid to drive for daily prayers.

19. The Bensalem Masjid currently conducts its Friday afternoon worship in a fire

hall located at 5931 Bensalem Boulevard. The fire hall is leased by Faith Unity, an unaffiliated

religious organization, which permits the Bensalem Masjid to use the fire hall for this purpose.

20. Because the fire hall is the only site available to the Bensalem Masjid for religious

practice, its members are limited in their ability to exercise their religion in a number of ways.

The Bensalem Masjid does not usually have access to the fire hall for daily prayers, and the fire

hall is not large enough to accommodate the Bensalem Masjid for large religious events.

Additionally, the fire hall does not have the facilities necessary to perform "wudu," the ablution

before prayers. Consequently, members of the Bensalem Masjid are required to lift their feet to ..

restroom sinks to wash before prayer.

21. According to the Bensalem Masjid's beliefs, the fire hall is not a mosque. It is not

a deeded property dedicated to God; it is not oriented towards Mecca; it is not consecrated; and it

does not adequately allow for adherence to religious practice. For example, the fire hall does not

adequately permit the separation of the sexes during worship, and the make-shift partition used

for this purpose prevents all congregants from viewing the worship leader during prayer services.

The fire hall also lacks religiously significant elements of Islamic architecture, such as a dome

and a minaret. Lacking a mosque, the Bensalem Masjid is unable to attract an "imam," or

worship leader.

22. The fire hall provides no location for religious activities beyond prayer, including

religious education, study groups, counseling, or meetings. Lacking a mosque, the Bensalem

Masjid is hindered in implementing "zakat," or charitable giving. The Bensalem Masjid is also

unable to conduct religious education, including religious education for their children.

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The Subject Property

23. Because the Bensalem Masjid cannot fully and adequately practice its religion

under these circumstances, it began to search for a location to build a mosque within Bensalem

Township in 2008. The Bensalem Masjid looked for an appropriate location for at least five

years. As part of its exhaustive search, the Bensalem Masjid worked with real estate agents, sent

a letter to all existing religious institutions in Bensalem Township in an attempt to purchase a

suitable property, and seriously evaluated eleven properties for purchase. The Bensalem Masjid

made every attempt to locate in the Institutional District, where places of worship are permitted

by right. The Bensalem Masjid was not aware of any property in the Institutional District that

was available for sale during its search.

24. In or after 2012, the Bensalem Masjid entered a lease with an option contract to

purchase three adjoining properties located at 3743, 3805, and 3825 Hulmeville Road in

Bensalem Township ("Subject Property"), with the intent of building a mosque on the Subject

Property. The Subject Property totaJs·over 4.5 acres. A majority of the Subject Property,

approximately 2.93 acres, is zoned in the BP Business and Professional District (approximately

2.93 acres). There are no structures on or uses of the parcel in the BP Business and Professional

District. One parcel of the Subject Property is zoned in the R-A Rural District. This parcel

contains a single-family home. One parcel of the Subject Property is zoned in the R-11

Residential District. This parcel also contains a single-family home.

25. Religious institutions are not permitted in the BP B.usiness and Professional

District, the R-A Rural District, or the R-11 Residential District. Non-religious assembly uses

are permitted in the BP Business and Professional District, the R-A Rural District, and the R-11

 Residential District, as described above.

26. Hulmeville Road is classified as a minor urban arterial road. It is lined by a

variety of commercial, institutional, and residential uses. Proximate to the Subject Property, for

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example, are a bank, pizzeria, CVS pharmacy, office park, commercial center, gas station, places

of worship, and schools. There are many zoning districts proximate to the Subject Property on

Hulmeville road, including G-C General Commercial, H-Cl Highway Commercial, IN

Institutional District, and several residential zones.

The Bensalem Masjid's Variance Application

27. Under the Bensalem Code, the Bensalem Masjid was required to seek zoning

relief from Bensalem to use the Subject Property for religious use. In or around 2012, members

of the Bensalem Masjid met with the mayor of Bensalem Township to express their interest in

building a mosque in Bensalem Township. The Bensalem Masjid presented two potential

properties for a mosque, including the Subject Property, to the mayor. The mayor expressed a

preference for developing a mosque on the Subject Property, because the location of the Subject

Property was proximate to commercial uses.

28. At the suggestion of the mayor, the Bensalem Masjid participated in

approximately eighteen meetings with the mayor and members of the Council between 2012 and

2013 to discuss the proposed mosque. During these meetings, the mayor and members of the

Council advised the Bensalem Masjid to apply for a use variance, instead of applying for a

rezoning of the Subject Property. The mayor continued to advise the Bensalem Masjid to pursue

a use variance rather than a rezoning throughout 2014.

29. The Bensalem Masjid believed that through a use variance it would be permitted

to use the Subject Property for a religious assembly, based on its discussions with the Township

and on the treatment of zoning variance applications for other assembly uses.

30. On October 24, 2013, the Bensalem Masjid applied to the Bensalem Township

Building and Planning Department for permission to use the Subject Property for a mosque.

Bensalem's Township Engineer denied this request on November 19, 2013, on the ground that a

mosque is a non-permitted use on the Subject Property. The Bensalem Masjid applied to the

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Board for a use variance on December 17, 2013. The application included a proposal to

construct a mosque of approximately 27,243 square feet with 143 parking spaces.

31. The Subject Property would accommodate a mosque that would meet the

religious needs of the Bensalem Masjid, as described above. The Bensalem Masjid's intended

use of the property on Hulmeville Road, including the proposed construction of a mosque,

constitutes "religious exercise" under RLUIPA. 42 U.S.C. §§ 2000cc-5(7)(A)-(B).

32. A zoning variance application to the Board was a proper mechanism through

which to request to use the Subject Property for religious purposes. Other religious and

nonreligious entities in Bensalem Township have obtained variances through this process to

engage in assembly uses in districts where such uses were not permitted.

33. Between February and November 2014, the Board held six hearings on the

Bensalem Masjid's use variance application. During the hearings, the Bensalem Masjid

presented testimony, including expert testimony, regarding the need for a zoning. variance. The

Bensalem Masjid described its religious beliefs and the proposed mosque's uses, the nature of its

search for a suitable property, and the inadequacies of its current worship location.

34. The Bensalem Masjid qualified for a use variance under the criteria that Bensalem

applied to other use variance applications. During these hearings, the Bensalem Masjid

presented testimony, including expert testimony, demonstrating that it qualified for a zoning

variance. The Bensalem Masjid explained that the characteristics of the Subject Property were

not conducive to uses permitted in the relevant zoning districts, because the BP Business

Professional lot is too narrow and because Hulmeville Road and the surrounding areas are no

longer appropriate for residential use. The Bensalem Masjid also described the surrounding

institutional and commercial uses and the commercial nature of Hulmeville Road.

35. The Bensalem Masjid presented testimony that its mosque would not be

detrimental to the public welfare. It explained that the parking that it proposed for the mosque

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was adequate and, moreover, that its proposed parking exceeded the parking requirements of the

Bensalem Code. The Bensalem Masjid also described the traffic studies that it conducted on the

impacts of the proposed mosque, which revealed that a mosque would cause no substantial

increase in traffic. Further, the Bensalem Masjid showed that traffic from the mosque would be

less than traffic for uses that would be permitted on the Subject Property under the Bensalem

Code. Nothing at the hearings indicated that the Bensalem Masjid would alter the essential

character of the zoning district or impede appropriate development of adjacent properties.

36. The Board raised concerns during these hearings about the size of the proposed

mosque, parking, traffic, the uses of the different areas of the mosque, and the possible growth of

the mosque's membership. The Bensalem Masjid attempted to address these concerns by

revising its plans for the proposed mosque, including by reducing its size by more than 10,000

square feet and by increasing the number of parking spaces to 154. It also offered to hold two

Friday afternoon prayer services instead of one.

37. Members of the public opposed to the Bensalem Masjid's zoning variance

application were present at the hearings, and applauded comments that questioned the propriety

of a zoning variance. Several members of the public who spoke in opposition to the Masjid

raised concerns that were unrelated to the zoning variance analysis.

38. Members of the Board asked questions outside of the scope of the zoning variance

application during the hearings, such as whether the Bensalem Masjid's membership would

increase and whether it would attract members from outside of Bensalem Township. Although

the Board's solicitor advised the Board that parking concerns were outside of the scope of

inquiry for the purposes of the zoning variance application before them, members of the Board

· repeatedly questioned whether parking at the proposed mosque would be adequate.

39. On June 5, 2014, before the second hearing for the Bensalem Masjid, an

employee of Bensalem approached the Bensalem Masjid's attorney and suggested that the

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Bensalem Masjid delay its use variance application with the Board, and instead pursue a

rezoning through the Council. When this employee met with the Bensalem Masjid's attorney the

following day, however, the employee indicated that the Bensalem Masjid would be

unsuccessful at obtaining a rezoning through the Council.

40. On November 6, 2014, the Board voted four to zero to deny the Bensalem

Masjid's zoning variance application. The Board issued its Decision and Order memorializing

the denial on December 5, 2014.

41. For purposes of RLUIPA, Bensalem's denial of the variance application

constitutes the "application" of a "land use regulation" that "limits or restricts a claimant's use or

development of land." 42 U.S.C. § 2000cc-5(5).

42. Because the Bensalem Masjid did not receive a zoning variance, it cannot

construct a mosque, and therefore its members cannot engage in their religious practices to the

degree and in the way they believe they are compelled to do.

43. The construction and operation of a mosque on the Subject Property would affect

interstate commerce in many ways, including by the transfer of funds, the purchase of materials

and services, and the use of interstate highways.

44. Under the Bensalem Code, use variance applications for religious and nonreligious

assemblies are subject to the same procedures to apply for a use variance. However,

Bensalem has treated similarly. situated use variance applications for religious and non-religious

assemblies, including those described in paragraph 12, more favorably than it treated the

Bensalem's Masjid's application throughout the variance process. For example, the Board made

determinations on many zoning variance applications, including some of those described in

paragraph 12, in only one hearing, whereas there were six hearings on the Bensalem Masjid's

application. As another example, the Board asked questions of the Bensalem Masjid that it did

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not ask of many of these other applicants, including whether its membership would increase and

whether it would attract members from outside of Bensalem Township.

45. Under the Bensalem Code, use variance applications for religious and nonreligious

assemblies are subject to the same criteria to qualify for a use variance. However,

Bensalem has treated similarly situated use variance applications for religious and non-religious .

assemblies, including those described in paragraph 12, more favorably in its variance

determinations than it treated the Bensalem's Masjid's application. Bensalem approved zoning

variances for similarly situated entities but denied the Bensalem Masjid a zoning vru:iance, even

though the Bensalem Masjid provided equal or greater evidence to show that it met the

requirements for a variance, and even though the Bensalem Masjid's requested zoning variance

would not have had a greater impact than the granted zoning variances of these entities on

Bensalem or on the Bensalem Code.

COUNT I

RLUIPA- Substantial Burden

46. The allegations above are hereby incorporated by reference.

47. Defendant's treatment and denial of the Bensalem Masjid's variance application

constitutes the imposition or implementation of a land use regulation that imposes a substantial

burden on the Bensalem Masjid's religious exercise, which burden is not in furtherance ofa

compelling governmental interest and/or is not the least restrictive means of furthering such

interest, in violation of RLUIPA, 42 U.S.C. § 2000cc(a)(l).

COUNT II

RLUIPA- Equal Terms

48. The allegations above are hereby incorporated by reference.

49. Defendant's treatment of the Bensalem Masjid and its denial of the Bensalem

Masjid's variance application constitutes the imposition or implementation of a land use

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regulation that treated, and continues to treat, the Bensalem Masjid on less than equal tenns with

a nonreligious assembly or institution, in violation ofRLUIPA, 42 U.S.C. § 2000cc(b)(l).

 COUNT III

RLUIPA - Discrimination

50. The allegations above are hereby incorporated by reference.

51. Defendant has treated the Bensalem Masjid and its variance application

differently from other applications on the basis of religion or religious denomination, in violation

of RLUIPA, 42 U.S.C. § 2000cc(b)(2).

COUNT IV

RLUIPA- Unreasonable Limitations

52. The allegations above are hereby incorporated by reference.

53. Defendant has placed unreasonable limitations on religious assemblies,

institutions, and structures, including unreasonable limitations on.the Bensalem Masjid, through

its land use regulations, in violation of RLUIPA 42 U.S.C. § 2000cc(b)(3).

WHEREFORE, the United States prays that this Court enter an order that:

1. Declares that Bensalem's policies and practices, as alleged herein, violate RLUIPA;

2. Enjoins Bensalem, its officers, employees, agents, successors and all

other persons in concert or participation with it, froma-

a. Imposing a substantial burden on the religious exercise of the Bensalem Masjid

and its members that is not narrowly tailored to further a compelling governmental

interest;

b. Treating the Bensalem Masjid and its members on less than equal terms with

nonreligious assemblies or institutions;

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c. Discriminating against the Bensalem Masjid and its members on the basis of

religion or religious denomination.

d. Placing unreasonable limitations on the Bensalem Masjid, its members, and on

other religious organizations.

3. Requires Bensalem, its officers, employees, agents, successors, and all other persons in

concert or participation with it, to:

a. Take such actions as may be necessary to restore, as nearly as practicable, the

Bensalem Masjid and its members to the position they would have been in but for

Bensalem's unlawful conduct, including but not limited to granting such approvals 'as are

necessary to allow the Bensalem Masjid to use the Subject Property as a place of

worship; and

b. Take such actions as may be necessary to prevent the recurrence of such unlawful

conduct in the future, including but not limited to, providing RLUIPA training to its

personnel, establishing procedures to address complaints of RLUIPA violations, and

maintaining records and submitting reports relating to RLUIPA compliance.

4. Awards such additional relief as the interests of justice may require, together with the

United States' costs and disbursements in this action.

Respectfully submitted,

 

 LORETTA E. LYNCH

Attorney General

/S/

VANITA GUPPTA

 

Principal Deputy Assistant Attorney General

Civil Rights Division

/S/

SAMEENA SHINA MAJEED

Chief

/S/

CATHERINE A. BENDOR

Deputy Chief

ERIC W. TREENE

Special Counsel

JENNIFER E. McALLISTER

VA State Bar No. 71180

KATHARINE F. TOWT

MA State Bar No. 690461

Trial Attorneys

Housing and Civil Enforcement Section

Civil Rights Division

U.S. Department of Justice

950 Pennsylvania Avenue, NW

Northwestern Building, 7th Floor

Washington, D.C. 20530

Phone: (202) 305-2011

Email: jennifer.mcallister@usdoj.gov

DATED JULY 21, 2016

Updated July 22, 2016