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.