The Bensalem Masjid Inc. (“Masjid”) has sued Bensalem Township, Pennsylvania (“Township”) and the Township’s Zoning Hearing Board (“Board”) for denying approval to construct a mosque.  Nine months after the application was submitted and after multiple public hearing sessions, the Township denied the proposed 16,900 square foot place of worship, a 500 square foot conference room, a 4,000 square foot multipurpose room in the basement, and 154 parking spaces.

According to Masjid’s Complaint, Masjid’s 200 families, whose beliefs require them to pray five times a day, currently meet to worship for Friday prayers in a 2,400 square foot rented fire hall.  Masjid claims the physical aspects of the fire hall prevent it from fully exercising its religion because (a) Masjid’s religious beliefs require that its members pray in a mosque, not a fire hall; (b) the space does not adequately allow the separation of men and women at prayer services, consistent with mainstream Islam; (c) it is not large enough to provide religious education to all children; (d) members with small children cannot attend prayer services because there is no separate area for infants and younger children; and (e) the building is not oriented toward Mecca and lacks architectural elements important for a mosque, such as a dome and minaret.  In addition, “[t]he fire hall lacks the religious, cultural and social experience of a mosque.  For example, the fire hall does not have the facilities for the Masjid’s Members to perform wuda, a necessary ritual ablution before services that includes the washing of the feet.”

For six years, Masjid searched for property in the Township to build a mosque to meet its religious needs.  The Township, which has a population of approximately 60,000 people, does not have a mosque within its jurisdiction.  Religious uses are permitted only in the Institutional zone on a lot with a “net lot area” (defined as the “area contained within the property lines of individual parcels of land, excluding any area within an existing or ultimate legal right-of-way for public streets, and including the area of any easement”) greater than four acres in size and a minimum lot width of no less than 300 feet.  There are 35 parcels in the Institutional zone, of which 20 are used by other religious institutions, four are park and recreation areas, five are cemeteries, and six are occupied by schools and institutional residential uses.  There is only one undeveloped parcel in the Institutional zone, and that lot is owned by the Township and intended for future use as a recreational complex.

Masjid offered to buy any one of the properties owned and occupied by the other religious institutions in the Township, but no other religious group was willing to sell.  Ultimately, Masjid found property comprised of three separate parcels, totaling 4.58 acres, in three separate zones – the Business Professional zone, the R-11 residential zone, and the R-A residential zone.  While religious uses are prohibited in these zones, Masjid claims other secular assembly and institutional uses are allowed: (a) the BP zone allows “Business and professional schools,” “College and university,” “Professional services,” and “Business services limited to offices for licensed real estate brokers, stock and bond brokers and accountants;” (b) the R-A zone allows “Municipal building and municipal use,” “Railway passenger station,” “Private educational institution for general educational purposes,” “Convalescent home or sanitarium,” and “Child, adult or senior citizen day center;” and (c) the R-11 zone allows “Municipal building and municipal use” and “Child, adult or senior citizen day care center.”

Masjid currently leases the subject property and has an option to purchase the property upon the granting of a variance or other zoning approval to develop the property as a mosque.  On October 24, 2013, Masjid applied to the Township’s Building and Planning Department to use the subject property as a mosque, but the Department denied its application on the ground that the proposed religious use was not a permitted use in three zones.  Masjid then applied to the Board for a use variance.  After multiple public hearing sessions, the Board voted to deny the application.  Masjid alleges that in recent years the Board granted use variances to at least five non-Muslim religious groups and the denial of its proposal was the first time the Board has ever denied a use variance for a religious institution.  Reportedly, one member of the Board “stated that he had greater concerns about the Plaintiff’s proposed use because he was not familiar with the uses of a mosque.”

Masjid alleges the Township’s denial of its mosque proposal violates the Religious Land Use and Institutionalized Persons Act’s (RLUIPA) substantial burden, nondiscrimination, unreasonable limitations, and equal terms provisions.  It also alleges that the zoning ordinance and variance approval process are prior restraints on expressive religious speech and conduct in violation of the First Amendment to the U.S. Constitution, and violate the Free Exercise Clause, the Equal Protection Clause and state law.

The Complaint in Bensalem Masjid Inc. v. Bensalem Township (E.D. PA 2014) is available here.

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Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.

Photo of Karla Chaffee Karla Chaffee

Karla L. Chaffee is a member of Robinson+Cole’s Real Estate + Development Group and is based in the Boston office, focusing on a variety of land use and environmental matters. Karla’s interest in RLUIPA began in law school when she co-authored, “Six

Karla L. Chaffee is a member of Robinson+Cole’s Real Estate + Development Group and is based in the Boston office, focusing on a variety of land use and environmental matters. Karla’s interest in RLUIPA began in law school when she co-authored, “Six Fact Patterns of Substantial Burden in RLUIPA: Lessons for Potential Litigants,” (with Dwight Merriam) published in Albany Government Law Review (Spring 2009). Karla has continued to write and speak on RLUIPA and has represented clients in several federal proceedings, including RLUIPA, First Amendment, and Equal Protection claims. In addition to her RLUIPA practice, Karla has litigated complex environmental matters, defending claims under Massachusetts Chapter 21E. Karla’s transactional experience includes pre-acquisition and pre-financing due diligence, environmental risk assessment and risk mitigation. She also represents clients seeking local zoning approvals and counsels them on the impact of proposed or recently enacted land use legislation, as well as on land use trends across the country.

Karla is also a proud member of Robinson+Cole’s Pro Bono Committee and is dedicated to maintaining pro bono work as part of her practice. Her pro bono clients include individuals and families seeking asylum in the United States. She has also represented nonprofit organizations in obtaining tax-exempt status and has served as legal counsel in a zoning appeal for a nonprofit association created to support and protect a national park.