MEMORANDUM RE DEFENDANTS' MOTION TO DISMISS
MICHAEL M. BAYLSON, District Judge.
This case arises from the denial of Plaintiff Bensalem Masjid's application for a use variance to build a mosque on a split zoned parcel of property in Bensalem, Pennsylvania. Plaintiff's First Amended Complaint (ECF 18) asserts claims under the First and Fourteenth Amendments to the U.S. Constitution pursuant to 42 U.S.C. § 1983 (2015), the federal Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc (2015) ("RLUIPA"), the Pennsylvania Municipal Code, and the Pennsylvania Religious Freedom Protection Act, 71 Pa. Cons. Stat. §§ 2401-2407 (2015) ("PA RFPA").
Defendants Bensalem Township ("Township") and Bensalem Township Zoning Hearing Board ("Board") move to dismiss (ECF 22 and ECF 22-1) pursuant to Fed. R. Civ. P. 12(b)(6) and (as clarified in Defendants' Reply, ECF 25) Fed. R. Civ. P. 12(b)(1). The Court will grant Defendants' Motion as to Count V (First Amendment Prior Restraint) because that claim seeks a ruling on a hypothetical dispute. The Court will also dismiss Count VIII (Pennsylvania Municipal Planning Code) without prejudice given that the Court lacks jurisdiction over the appeal of Board's zoning decision. In all other respects, however, Defendants' Motion is denied.
A. Township's Land Regulations
Township has adopted a zoning ordinance governing land use within Bensalem.
As enumerated in Township's Code, the purpose of the BP zoning district is to "provide reasonable standards for the harmonious development of office space for health and other professionals, business and related uses which are necessary to service Township residents;"
Plaintiffs allege that Township's BP, R-A and R-11 zoning districts permit several secular uses that are comparable to the impact a religious house of worship would have on Township's overall zoning scheme.
Township has established use variance criteria that, if satisfied, entitle a property owner to develop land without conforming to Township's zoning restrictions.
To be entitled to a use variance, an applicant must satisfy criteria that include demonstrating unnecessary hardship resulting from "unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property" that make it impossible to develop the property "in strict conformity with the provisions of the zoning ordinance [such that] a variance is therefore necessary to enable the reasonable use of the property."
B. Plaintiff Seeks a Use Variance to Build a Mosque in Bensalem
Plaintiff is an Islamic religious organization with a congregation based primarily in Bensalem, Pennsylvania.
In 2008, Plaintiff began searching for a location to build a mosque.
Plaintiff never applied to have the properties at issue rezoned,
C. Allegations Regarding Board's Denial of Plaintiff's Use Variance
Plaintiff alleges that Board treated Plaintiff's application with harsher scrutiny than those of other applicants. Board subjected Plaintiff to five public hearings before deciding the variance while other applicants had as few as one.
Plaintiff also alleges that Board applied more stringent criteria to Plaintiff in evaluating whether a use variance was in order.
Plaintiff further alleges that statements from Board and from members of the audience at hearings on Plaintiff's application reflect anti-Muslim animus.
Finally, Plaintiff avers that Board's denial constitutes an abuse of discretion as Board lacked substantial evidence for its findings, applied the law incorrectly, and made its decision in an arbitrary and capricious manner.
A. Standard of Review
In considering a motion to dismiss under Rule 12(b)(6), the Court "accept[s] all factual allegations as true [and] construe[s] the complaint in the light most favorable to the plaintiff."
Although Defendants cite this standard, much of their Motion and Reply dispute facts that Plaintiff has pled. Most notably, Defendants repeatedly argue that Plaintiff did not attempt to satisfy the legal standard for "hardship" in making its use variance application.
B. Scope of Materials Considered
Defendants attached several exhibits to their Motion, including excerpts from hearing testimony on Plaintiff's application for a use variance (
The Court declines to consider Defendants' exhibits because doing so would convert Defendants' Motion to Dismiss into one for summary judgment pursuant to Fed. R. Civ. P. 12(d). The Third Circuit has defined public records to be those materials to which the public has "unqualified access,"
C. Plaintiff's Claims are Ripe for Adjudication
The crux of Defendants' Motion is that Plaintiff's claims are unripe and should therefore be dismissed under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction because Plaintiff never sought rezoning of the Property. Defendants' argument fails. The Third Circuit has held that a land use claim is ripe when "state zoning authorities [have been] given an opportunity to arrive at a final, definitive position regarding how [they] will apply the regulations at issue to the particular land in question. ..."
Defendants do not cite any case from any jurisdiction holding that the failure to apply for rezoning prevents review of a denial of a use variance. Defendants cite
In this case, Board took final action by denying Plaintiff's use variance application. Plaintiff's claims as regards that decision are ripe for adjudication.
D. Count I — RLUIPA "Substantial Burden"
RLUIPA provides in relevant part that a government shall not "impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless [the imposition] is in furtherance of a compelling governmental interest; and ... is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C.A. § 2000cc(a) (2015);
Plaintiff has plausibly alleged that the denial of the use variance substantially burdened its religious exercise.
Accordingly, the Court will DENY Defendants' Motion to Dismiss Count I.
E. Count II — RLUIPA "Nondiscrimination"
RLUIPA provides in relevant part, "No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination." 42 U.S.C.A. § 2000cc(b)(2) (2015). Plaintiff's Amended Complaint plausibly alleges that Board both applied different and more vigorous use variance standards to Plaintiff in evaluating Plaintiff's use variance application and displayed animus towards Muslims generally. These allegations suffice to state a claim under RLUIPA's nondiscrimination provision.
Accordingly, the Court will DENY Defendants' Motion to Dismiss Count II.
F. Count III — RLUIPA "Unreasonable Limitation"
Plaintiff asserts Defendants' conduct violates RLUIPA's provision holding "no government shall impose or implement a land use restriction that ... unreasonably limits religious assemblies, institutions or structures within a jurisdiction," 42 U.S.C.A. § 2000cc(b)(3)(B) (2015). Plaintiff alleges Defendants' zoning plan limiting where religious institutions can locate is unreasonable because houses of worship are only permitted on IN zoned parcels and there are no such parcels available in Bensalem. The Court will DENY Defendants' Motion to Dismiss Count III.
G. Count IV — RLUIPA "Equal Terms"
"[A] plaintiff asserting a claim under the RLUIPA Equal Terms provision must show (1) it is a religious assembly or institution, (2) subject to a land use regulation, which regulation (3) treats the religious assembly on less than equal terms with (4) a nonreligious assembly or institution (5) that causes no lesser harm to the interests the regulation seeks to advance."
Accordingly, the Court will DENY Defendants' Motion to Dismiss Count IV.
H. Count V: First Amendment Prior Restraint
"[A] licensing statute placing unbridled discretion in the hands of a government official or agency constitutes a prior restraint. ..."
Plaintiff's Prior Restraint claim amounts to arguing a hypothetical.
Accordingly, the Court will DISMISS COUNT V WITH PREJUDICE.
I. Count VI — First Amendment Free Exercise
Because Plaintiff alleges that Township's ordinance was discriminatorily enforced against it, issues of fact preclude dismissing Plaintiff's Free Exercise claim.
J. Count VII — Equal Protection
"[T]he first inquiry a court must make in an equal protection challenge to a zoning ordinance is to examine whether the complaining party is similarly situated to other uses that are either permitted as of right, or by special permit, in a certain zone. If, and only if, the entities are similarly situated, then the city must justify its different treatment of the two, perhaps by citing to the different impact that such entities may have on the asserted goal of the zoning plan."
The Third Circuit has held in the context of employment discrimination claims that determining who is a similarly situated employee "requires a court to undertake a fact-intensive inquiry on a case-by-case basis."
Accordingly, the Court will DENY Defendants' Motion to Dismiss Count VII.
K. Count VIII — Pennsylvania Municipal Planning Code
Count VIII asks the Court to review Board's denial of Plaintiff's request for a use variance. Neither party addresses in detail the issue of whether this Court has jurisdiction to serve as an appellate body for Board's decision. The Third Circuit has repeatedly noted that "[f]ederal courts have expressly disavowed any desire to sit as a statewide board of zoning appeals hearing challenges to actions of municipalities."
In this case, review of Board's decision pursuant to Pennsylvania's Municipal Code is not "so related to claims in the action within such original jurisdiction that [it forms] part of the same case or controversy under Article III of the United States Constitution" for purposes of supplemental jurisdiction. 28 U.S.C. § 1367 (2015). Instead, Plaintiff should follow Pennsylvania's statutory procedures and appeal denial of Board's decision to the Bucks County Court of Common Pleas. 53 P.S. § 11002-A (2015). Accordingly, the Court will GRANT Defendants' motion as to Count VIII and dismiss it without prejudice.
L. Count IX — PA RFPA
As to Count IX, Defendants argue that the PA RFPA duplicates the RLUIPA for purposes of analysis. ECF 22-1 at 32. Beyond denying the Motion to Dismiss because questions of fact exist as highlighted above, the Court notes that the very case Defendants cite for their duplication argument illustrates that the two statutes are conceptually distinct.
M. Defendants' Suggestion that Plaintiff Should Be Sanctioned
In their Reply filing, Defendants suggested Plaintiff should be sanctioned for (among other things) allegedly misquoting the legislative history of RLUIPA. ECF 25 at 6 n.6. The Court notes that it was Defendants who initially misquoted a portion of RLUIPA's legislative history in their Motion (ECF 22-1 at 15). Plaintiff cited Defendants' brief in order to analyze this history (ECF 24 at 14-15), apparently believing the quote to be accurate. Only then did Defendants correct the quote in their Reply before repeatedly accusing Plaintiff of "selectively misquot[ing] the legislative history" (ECF 25 at 1, 2, 5-6) for quoting the Motion with the original misquote. The Court declines to impose sanctions at this time.
Because Plaintiff has plausibly alleged facts in support of the majority of its claims, and because Defendants are wrong in arguing that Plaintiff's failure to seek rezoning deprives this Court of jurisdiction, the Court will deny Defendants' Motion to Dismiss except as follows. The Court will dismiss Count V with prejudice as Plaintiff's facial Prior Restraint challenge to Defendants' zoning laws is predicated on a hypothetical procedure. The Court will also dismiss Count VIII without prejudice because the Court does not have jurisdiction to entertain Plaintiff's zoning appeal.
An appropriate Order follows.