Almost a year ago, we reported on The Bensalem Masjid, Inc.’s lawsuit against Bensalem Township, Pennsylvania following the Township’s denial of Masjid’s use variance application to build a 16,900-square foot mosque, including a 500-square foot conference room, a 4,000-square foot multipurpose room and 154 parking spaces (prior post here).  After five sessions of the public hearing and deliberations over the course of nine months, the Township’s Zoning Hearing Board denied the application.  Masjid currently worships in a rented fire hall with another Muslim group, which it alleges violates its religious beliefs in several ways discussed in our prior post.

Masjid sued the Township and its agencies under the Religious Land Use & Institutionalized Persons Act (RLUIPA), the U.S. Constitution, and state law.  Almost a year after commencing suit, a Pennsylvania federal court largely denied the Township’s motion to dismiss these claims as unripe and ruled that all but two of Masjid’s claims could proceed.

First, the Township argued that Masjid’s lawsuit was not ripe for the court’s review because Masjid could have, but did not, seek to rezone the property it sought to develop.  Under the Township’s zoning code, houses of worship are allowed only in the Institutional zoning district.  The property that Masjid wants to develop, however, is partially located in two of the Township’s residential zones (R-A and R-11) and the business zone, none of which permit houses of worship.  The Court concluded that Masjid’s claims are ripe for review, even though Masjid never sought a rezone of the subject property, because the Board denied the use variance application.

The Court next concluded that Masjid had alleged colorable violations of RLUIPA and could proceed with those claims.  First, Masjid alleges that the use variance denial substantially burdens its religious exercise by forcing it to continue to worship from a rented fire hall that it asserts cannot accommodate its religious needs.  Second, Masjid alleges a violation of RLUIPA’s nondiscrimination provision because it contends the Board applied different and more rigorous use variance standards when reviewing its application and also displayed anti-Muslim animus.  Third, Masjid alleges that the Township’s zoning plan has so few locational opportunities for religious organizations that it violates RLUIPA’s unreasonable limits provision.

Masjid’s fourth and final claimed RLUIPA violation is under the statute’s equal terms provision.  According to Masjid, several uses that are permitted on the subject property would have a greater land use impact than the proposed mosque, such as municipal buildings.  The Township argued that the equal terms claim should fail because Masjid was required to, but did not, identify a secular comparator that owned one parcel of land located in three separate zoning districts, like the property that Masjid sought to develop.  But the Court rejected this argument and concluded that a comparator need not be identical to establish an equal terms violation.  The Court also permitted Masjid to move forward with its Free Exercise, Equal Protection and certain state law claims.

The Court’s Memorandum of Decision in The Bensalem Masjid, Inc. v. Bensalem Township, Pennsylvania (E.D. PA 2015) is available here.

Original photography by Tony Hisgett (Some Rights Reserved).

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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 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.

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.