A federal court in Pennsylvania has denied Bensalem Township’s motion to dismiss a lawsuit brought by the United States Department of Justice challenging the Township’s denial of a use variance for a mosque.  The lawsuit alleges violations of the Religious Land Use & Institutionalized Persons Act (RLUIPA) and is in addition to a separate lawsuit filed by the religious group itself – Bensalem Masjid (Masjid).  Masjid sought to build its own mosque because it had been relegated to using space in a fire hall for religious worship.  Without a mosque, Masjid claims its members violate their religious beliefs in several important respects, as the fire hall space cannot accommodate their religious beliefs: separating the sexes during worship; performing “wudu,” the ablution before prayer; and worshipping in a mosque that is properly dedicated to God, is oriented towards Mecca, and is consecrated.

Masjid began its search for a new location in 2008.  Under the Township’s zoning code, religious uses are permitted only in the Institutional District (IN District), where there are about 35 properties total.  Although Masjid was unable to find a site in the IN District, it found three adjacent properties encompassing multiple zoning districts, none of which permitted religious uses, and entered into a lease with an option to purchase the properties.  After consulting with Township officials, Masjid submitted an application for a use variance to allow the properties to be put to religious use.  The application was denied in November 2014 after six sessions of a public hearing.  Masjid sued the Township following the denial, which we previously reported on here.

In 2016, the DOJ also sued the Township over the same denial (see post here).  The Township moved to dismiss each of the four RLUIPA claims raised by the DOJ (substantial burden; equal terms; nondiscrimination; and unreasonable limitations).  The Court denied dismissal and noted that the Township had unsuccessfully sought dismissal of the same claims in the case brought by Masjid (Memorandum of Decision in Masjid case available here).  The Court also noted that the claims brought by the DOJ were the ones that survived dismissal in the other pending action.

The Township first moved to dismiss the DOJ’s complaint on the ground that the DOJ had failed to join a required party (the Bensalem Zoning Hearing Board).  According to the Township, only the Zoning Hearing Board could grant use variances and for that reason had to be named as a defendant.  The court was not persuaded, and instead found that since the municipality is authorized to enforce and amend its zoning laws, the DOJ could attain the relief it sought without the Zoning Hearing Board being made a defendant.

The Township also moved to dismiss each of the four RLUIPA claims alleged by the DOJ (substantial burden; equal terms; nondiscrimination; and unreasonable limitations).  The court rejected each of these claims:

  • Substantial Burden: The Township claimed that there could be no substantial burden on religious exercise because Masjid had failed to pursue an available zoning remedy in the form of a rezone. Stated differently, if there is another avenue through which to seek relief, the burden cannot be substantial.  But the court determined that there was a factual dispute as to whether the use variance or the rezone was the proper procedure, so dismissal was inappropriate at this stage.
  • Equal Terms: This claim was sufficiently alleged, since several zoning districts within the Township allowed secular assembly uses but prohibited religious uses from the same zone.
  • Nondiscrimination: The Court found that the DOJ’s allegation that Masjid was subject to a more burdensome variance application process than other groups was sufficient to allow this claim to survive.
  • Unreasonable Limitations: The Township contended that because other groups were able to locate properties in the IN district, its zoning regulations could not violate the unreasonable limitations provision. But the DOJ alleged that there were no parcels for sale in the IN District during Masjid’s search period, and the Court determined that this factual dispute meant the claim had been properly pleaded.

The court’s memorandum of decision relating to the motion to dismiss in United States v. Bensalem Township 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.

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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.

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