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Home My WebLink About05-5831 .. F,IFILESIDA T AFlLE\GeneraIICurremII1754! ,Complaint THE PEACE CENTRE, Plaintiff :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA v. :CIVIL ACTION :NO. 0 .)- j- i 31 C-cw T A.-' THE TOWNSHIP OF NORTH MIDDLETON, Defendant NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are wamed that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD T AK.E THIS PAPER TO YOUR LA WYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMA nON ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAYBE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCE FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717)232-7536 :yARTS~WlLLfAMS&OTTO Carl C. Risch, Esquire I.D. No. 75901 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneysfor Plaintiff Date: November 9, 2005 THE PEACE CENTRE, Plaintiff :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :CIVIL ACTION v. :NO. O:S-S'~'3) rj~i~) t~ THE TOWNSHIP OF NORTH MIDDLETON, Defendant COMPLAINT AND NOW, comes the Plaintiff, THE PEACE CENTRE, by and through its attorneys, MARTS ON DEARDORFF WILLIAMS & OTTO, and avers as follows: 1. Plaintiff is a non-profit, non-stock Pennsylvania corporation with an address of 505 Cavalry Road, North Middleton Township, Carlisle, Cumberland County, Pennsylvania 17013. 2. Plaintiff is a religious institution which qualifies for exemption from taxation under Section 501(c)(3) of the Internal Revenue Code of 1996. 3. Defendant is a municipal corporation with an address of2051 Spring Road, North Middleton Township, Carlisle, Cumberland County, Pennsylvania 17013. 4. Plaintiff is the owner of 505 Cavalry Road, North Middleton Township, at which Plaintiff operates an Islamic school and spiritual center. Plaintiff also offers prayer services, including Friday prayer services, to Muslims at the Peace Centre. 5. On October 20,2005, the Defendant, by and through its zoning officer, sent a letter to the Plaintiff directing it to cease using the facility located at 505 Cavalry Road as a "place of worship." A copy ofthis letter with attachments is attached hereto as Exhibit "A." 6. Defendant contends that, since "places of worship" are not permitted in the Industrial, or I-I, zone, Plaintiff is in violation of the Township's zoning ordinance by holding prayer services at the Peace Centre. 7. Defendant's letter acts as a "governmental action intended to interfere with religious exercise" which has the "effect of substantially burdening the free exercise of religion" as defined by the Pennsylvania Religious Freedom Protection Act, 71 P.S. Ijlj 2402 and 2403. 8. Section 4 ofthe Pennsylvania Religious Freedom Protection Act, 71 P.S. Ij 2404(a) prohibits North Middleton Township from substantially burdening Plaintiffs, and Plaintiffs member's, free exercise of religion. 9. Defendant's actions are not justified as furthering a compelling state interest and, if so, are not the least restrictive means of furthering a compelling state interest. 10. Once Plaintiff proves by clear and convincing evidence that Defendant's acts have the effect of substantially burdening the free exercise of religion, Defendant has the burden of proving by the preponderance ofthe evidence that its acts further a compelling state interest in the least restrictive means necessary. 71 P.S.1j 2405(f) and Ij 2404(b). 11. This Court has jurisdiction to hear this case under 71 P.S. Ij 2404(e) as an action against a non-Commonwealth agency as well as under 71 P.S. Ij 2405(a) and Ij 2406(a). 12. Because North Middleton Township's exercise of governmental authority imminently threatens to substantially burden Plaintiff's, and its member's, free exercise ofreligion, Plaintiff is relieved of its obligation to provide thirty (30) days notice ofthis action Imder 71 P.S. Ij 2405(a). 13. North Middleton Township has directed Plaintiff to cease holding religious services at 505 Cavalry Road and has threatened legal action against the Plaintiffiffails to obey. This action has had a "chilling effect" on Islamic worship at the Peace Centre and is presently, and substantially, interfering with religious exercise at the Peace Centre in violation of the laws of the Commonwealth. 14. Plaintiff avers that Defendant's exercise of governmental authority in this case is so outrageous and constitutes such a fundamental rejection of the laws of this Commonwealth that it has risen to the level of "obdurate" and "vexatious" under 71 P.S. S 2405(f), and therefore justifies the award of attorneys fees and costs. 15. Plaintiff is entitled to injunctive and declaratory relieftmder 71 P.S. S 2405(f) ifit proves a substantial burden on the free exercise of religion. WHEREFORE, this Court is requested to enjoin Defendant from prohibiting the use of 505 Calvary Road, North Middleton Township, as a "place of worship" under 71 P.S. S 2405(f). Respectfully submitted, MARTSON DEARDORFF WILLIAMS & OTTO @J1D By Carl C. Risch, Esquire LD. No. 75901 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff Date: November 9, 2005 10/21/2005 17:07 7172581598 MICHAELWILLIAMS PAGE 02 NORTH lDDlETO OWNSHI NORTH MIDDLETON TOWNSHIP 2051 Spring Road, Carlisle, PA 17013-1059 OFFICE (717) 243-8550 . FAX (717) 243-1135 . POLICE (717) 243-7910 October 20, 2005 VIA CERTIFIED MAIL NO. 70042510 000312438066 Michael williams 1725 Douglas Drive Carlisle P A 17013 The Peace Center Attn. Micbael Willillms 505 Cavalry Road Carlisle P A 17013 RE: Enforcement Notice Ordinance Violation Dear Mr. Williams: You are the authorized representative for the The Peace Center, owner of real estate located in North Middleton TOWIlship (hereinafter the "Township"), same being known and numbered as The Peace Center located at 505 CavalIy Road. The Tax Parcel Number oflhis real estate is 29-18-1367-021. The Township is of the belief that, after reasonable investigation, The Peace Center is in vioIatiOll of the T oWllsbip Zoning Ordinance. This violation exists and is maintained on the above referenced real property for which you are responsible. The nature of the violation is as follows: in a Campus Industrial Zone (1-1) a place of worship is not allowed. Yau were previously notified oftbis violation on May 11, 2005. As such, these activities lire in violation of the Code of th<:> Township of North Middleton, Chapter 204 (Zoning Ordinance), Section 21. This chapter is known and cited as the "North Middleton Township Zoning Ordinance." Specifically, these activiti",s are in violation of Zoning Ordinance Section 204-21(8) (permitted Uses in the Campus Industrial Zone). We are forwarding a copy of Zoning Ordinance Section 204-21. A full and complete copy of this Ordinance is available upon request. You are advised, being the representative of The Peace Center, that the abow activity must be abated within thirty (30) days of r",ceipt of this Notice. Failure to comply with the foregoing or to file an Application with the North Middleton Township Zoning Hearing Board will result in the Township taking further action to ensure that the provisions of the Zoning Ordinance are met. \)1 ~ 10/21/2005 17:07 7172581598 MICHAELWILLIAMS PAGE 03 Should you elect to file lUl Application with the Zoning Hearing BOafd, said application must be filed within thirty (30) days of the date of this notice. Failure to comply within the thirty (30) day period, unless eKtended by the Zoning Hearing Board, may result in legal action by the Township. Please be advised that my person, partnership or corporation who shall violate any provision of the North Middleton Township Zoning Ordinance, as cited above, shall be liable, in a civil enforcement pl'oceeding, commenced by the Township, to pay a judgment of not more than $500.00, plus all COWl costs, reasonable attorneys' fees inClllTed by the Township. No judgment shall ~ce Or be imposed, levied or be payable until the date of the determination of a violation by the District Justice. If the defendant neither pays nor timely appeals the judgment, the Township may enforce the judgment pursuant to the applicable rules of civil procedure. Each day continuance of a violation of the provisions of the North Middleton Township Zoning Ordinance shall constitute a separate violation, unless the District Justice detennitting that there has been a violation further detennines that there was a good faith basis for the person, partnership or corporation violating the Qfdinance to have beHeved that there was no such violation, in which event there shall be deemed ouly one such violation until the fifth day following the date of determination of a violation by the District Justice, and thereafter, each day that a violation continues shall constinlte a separate violation. All judgments, costs, and reasonable attorney fees collected for the violation of the Zoning Ordinance shall be paid over to the Township. If you have any questions regarding tbis Notice of the directives of North Middleton Township for colTective actions, please feel free to contact the North Middleton T ownshi:p Mmricipal Office, 2051 Spring Road, Carlisle, P A 17013 or telephone (717) 243-8550. It is the desire of North Middleton Township to work with you amicably and reasonably resotve this matter as quickly as possible. Accordingly, your cooperation is appreciated. Sincerely, --=t~ "" \:6~<r North Middleton Township Codes Enforcement Officer Enclosure Cc: BOafd of Supervisors James D. Bogar, Solicitor 10/21/2005 17:07 7172581698 MICHAELWILLIAMS PAGE 04 H. Off-street parking. Off-street parking shall be provided as specified in !i 204.36 of this chapter. I. Signs. Signs shall be permitted as specified in !i 204.39 of this chapter. J. Access drive requirements. All access drives shall be in accordance with !i 204.35 of this chapter K. Screening. Screening must be provided along any adjoining lands within a residential zone, regardless of whether or not the residentially zoned parcel is developed. (See !i 204.38 of this chapter.) L. Landscaping. Any portion of the site not used for buildings, structures, parking compounds, loading areas, outdoor storage areas and sidewalks shall be maintained with a vegetative ground cover and other ornamental plantings. (See !i 204-38 of this cha pter.) M. Outdoor storage and display. Within this zone, outdoor storage is permilled, provided all outdoor storage areas are screened from any abutting residential zone and the outdoor storage areas comply with the setbacks imposed within this section. Outdoor display areas need not be screened from adjoining roadS, if they are located Within the front yard. Section 204-48 of this chapter also lists other outdoor storage and display requirements. N. Waste products. Dumpsters used for domestic garbage may be permitted within the side or rQar yard, provid&d such dumpsters are scrllGned from any adjoining roads or properties. All dumpsters shall be set back a minimum of 50 feet from any adjoining residentially zoned properties. All waste receptacles shall be completely enclosed. O. Commercial operations standards. All industrial operations shall be in compliance with any Commonwealth of Pennsylvania and/or federal government regulations, as required by the most recent regUlations made aVailable from these governmental bodies. P. All uses shall comply with the applicable general provisions contained within Article II I of this chapter. Ii 204.21. Campus Industrial Zone (1-1). A. Purpose, The purpose of the Campus Industrial Zone is to provide for limited business activities within a campus-like selling. The types of use permitted within this zone are meant to promote an attractive and self.contained employment activity center. Strict design and landscaping requirements have been imposed to assure an attractive appearance from within the zone, as well as from adjoining roads. Finally, significant buffering techniques are used to protect adjoining residential areas. B. Permitted uses. (t) Agriculture, subiectto the standards listed in!i 204-14 of this chapter. (2) Banks and other financial institutions. 10/21/2005 17:07 7172581698 MICHAELWILLIAMS PAGE 05 (3) Business, professional and financial offices. (4) Health and fitness clubs. (5) Laboratories for medical, scientific or industrial research and development. (6) Manufacturing and packaging of the following; (a) Sclentiffc, specialized and technical instruments and equipment. (b) Hardware and software for audio-video components, computers, vending machines, electronic equipment and video games. (c) FiniShed textile products. (d) Brushes, brooms and combs. (e) Jewelry and other precious metals. (I) Photographic, lighting and timekeeping equipment. (9) Small househOld appliances, excluding major appliances. (h) Musical instruments and sporting equipment. (i) Cosmetics, toiletries and pharmaceuticals. (j) Optical, dental and medical supplies and equipment. (k) Small or novelty products from prepared materials (excluding the use of sheet metals). (7) Medical, dental or veterinary offices and clinics. (8) Photocopying, bookbinding, pnnting and publishing operations, (9) Retail sale of office supplies, office furniture, art and drafting equipment and computers. (10) Public, private, commercial and/or vocational and mechanical trade schools. (11) Public uses and playgrounds, sUbject to the applicable design standards listed in 9 204-14F ofthis chapter. (12) Accessory uses customarily incidental to the above permitted uses. C. Special exception uses (subject to the review procedures listed in 9 204-125C of this chapter). (1) Commercial day-care facilities (see 9 204-64). 10/21/2005 17:07 71 72581698 MICHAELWILLIAMS PAGE 06 (2) Hotels, motels and related uses (see !i 204-85), D. Conditional uses (subject to the review procedures listed in ~ 204-134 of this chapter). (1) Convention centers (see !l204-69). (2) Hospitals and related uses (see 9 204-84). E. Lot design requirements. Unless otherwise specified, all uses shall comply with the lot design requirements contained within the following table: 2 acres Maximum Lot Minimum Lot Width Coverage 200 ft. 70% Meximum Pennltted Height Minimum Lot Ar.... 35ft. ' NOTES: 1 The maximum permitted height may be extended up to 60 feet, if adequate fire protection is assured to all floors of the building and the building is set back a horizontal distance at least equal to its height from each property line. Prior to approval of building height exceeding 35 feet, the applicant must submit a letter from the Fire Chief of the company with primary service area responsibility for the site, attesting to adequate fire protection. F. Minimum required setbacks. Unless otherwise specified, all uses shell comply with the setbacks contained within the following table. Editor's Note: Table 8 is included at the end of this chapter. G. Off-street loading. Off-street loading shall be provided as specified in !l 204-37 of this chapter. In addition, no off-street loading area shall be permitted on any side of a building facing adjoining iands with a residential zone unless appropriately screened as provided here in at !l 204-38. H Off-street parking. Off-street parking shall be provided as specified in 9204-36 of this chapter, I.. Signs. Signs shall be permitted as specified in ~ 204-39 of this chapter. J. Access drive requirements. All access drives shall be in accordance with !l204-35 of this chapter. K. Screening. Screening must be provided along any adjoining lands within a residential zone, regardless of whether or not the residentially zoned parcei is developed. (See !i 204-38 of this chapter.) L. Landscaping. Any portion of the site not used for buildings, structures, parking compounds, loading areas, outdoor storage areas and sidewalks shall be maintained with a vegetative ground cover and other ornamental plantings. (See !l 204-38 of this chapter.) 10/21/2005 17:07 71 72581598 MICHAELWILLIAMS PAGE 07 .' M. Outdoor storage and display. Within this zone, no outdoor storage nor display shall be permitted. N. Waste products. Dumpsters used for domestic garbage may be permitted within the side or rear yard, provided such dumpsters are screened from any adjoining roads or properties. All dumpsters shall be set back a minimum of 50 feet from any adjoining residentially zoned properties. All waste receptacles shall be completely enclosed. Q. Commercial operations standards. All industrial operations shall be in compliance with any Commonwealth of Pennsylvania andlor federal government regulations, as required by the most recent regulations made available from these governmental bodies. P. All uses shall comply with the applicable general provisions contained within Article III of this chapter. !I 204-22. Industrial Zone (1-2). A. Purpose. This zone provides for a wide range of industrial activities that contribute to the well-being of the township by diversifying its economy and providing valuable employment opportunities. The required lot sizes have been kept small to accommodate the start-up industries that are likely to emerge; however, larger and heavier industries have also been permitted. This zone provides for light Industrial uses as permitted by right, but requires acquisition of a conditional use for heavier and potentially more- objectionable types of industrial uses. These areas have been located near existing public utility service areas and along major roads. Design standards have been Imposed to create attractive site designs and moderate the objectionable impacts associated with industrial uses. Substantial setbacks are used to protect adjoining residences. B~ Permitted uses. (1) Agricultural support businesses, including: (a) Facil~ies for the commercial processing and warehousing of agricultural products. (b) Facilities for the warehousing, sales and service of agricu~ural equipment, vehicles, feed or supplies. (c) Commercial stockyards or feedlots. (d) Veterinary offices, animal hospitals or kennels. (2) Agriculture. excluding commercial mushroom operations, subject to the standards listed in S 204-14 of this chapter. (3) Laboratories for medical, scientific or industrial research and development. (4) Machine shop. (5) Manufacturing. packaging, storage andlor wholesaling of the following' NOV 09,2005 12:58A ll/B9/2cas e9:S3 717243185a 8772262108 MDWO page 2 PAGE BS/CS 1HE PEACE CENTRE, PWntiff :IN' THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PBNNSYLV ANIA :CIVIL ACTION v. :NO. TIIE TOWNSHIP OF NORm MIDDLETON, Defendant VERIFICATION I. Michael Williams, President of the Peace Centre, h_by verify that, to the best of my knowledge, infonnation, awj believe, all averments in this document are true Il1d correct, and that I have the authority to make this verifioation. This statomelIt of verification is made subject to the pena1tiC$ of 18 Pa.e.S. Se(ltion 4904 relating to unswom falsifications to authorities, which provides that in make knowingly false averments. I may be subject ro criruinal penalties. Dale; November 9, 200S "., , '~'="l ~''';~~ () -" ""--. '" ,,'-.) r '--0 n 0, -, """'" f (; f'-' X (.<~' '" C"J :-'2 - k, ." '" \......\ c- o v~ '" , ..... '\ V', v, \0 (:' THE PEACE CENTRE, Plaintiff :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA v. :CIVIL ACTION :NO. OS. 53' 31 (";M:..I I......... THE TOWNSHIP OF NORTH MIDDLETON, Defendant PLAINTIFF'S MOTION FOR PRELIMINARY OR SPECIAL INJUNCTION AND NOW, comes the Plaintiff, The Peace Centre, by and through its attorneys, Martson Deardorff Williams & Otto, and hereby moves this Court for a preliminary injunction under Pa.R.c.P. 1531 enjoining and restraining Defendant pending final hearing and determination of this action from prohibiting Plaintiff from using its property located at 505 Cavalry Road, North Middleton Township, as a "place of worship," and in support avers as follows: 1. The Complaint filed on November 9, 2005, is hereby incorporated herein as if fully set forth. 2. Unless Defendant is effectively restrained and enjoined, as described with particularity in the Complaint filed in this case and in this Motion, Plaintiff will suffer immediate, substantial, and irreparable harm by a governmental action which substantially burdens Plaintiff's free exercise of religion in violation of 71 P .S. S 2404. 3. The issuance of a preliminary injunction will not cause undue inconvenience or loss to the Defendant, but will prevent irreparable injury to the Plaintiff. 4. This Court is specifically authorized to award injunctive relief by 71 P.S. S 2405(f). 5. Plaintiff is likely to succeed in proving its case at trial. 6. In view of the fundamental right to freedom of worship at issue in this case, Plaintiff avers that a bond is urmecessary in this case. WHEREFORE, Plaintiffs respectfully request that this Court enter an Order preliminarily enjoining and restraining Defendant and its employees, agents, assigns, and successors in interest from prohibiting Plaintiff from using 505 Cavalry Road, North Middleton Township, as a "place or worship." :yARTS~F WILLIAMS & OTTO Carl C. Risch, Esquire PA Attorney I.D. No. 75901 Ten East High Street Carlisle, P A 17013 (717) 243-3341 Attorneys for Plaintiff Date: November 9, 2005 . THE PEACE CENTRE, Plaintiff v. THE TOWNSHIP OF NORTH MIDDLETON, Defendant :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :CIVlL ACTION :NO. CERTIFICATE OF SERVICE I hereby certifY that a copy of the foregoing was served by First Class Mail as follows: Date: November 9, 2005 James Bogar, Esquire 1 West Main Street Shiremanstown, P A 17011 By Carl C. Risch ----------- ."' -;' "" c-~ ,.:.':J c:-, ~-~ ~~:i ,', , \..::) -:} (.) , . iiI, \ J" -, c-::: , . ......~. - THE PEACE CENTRE, Plaintiff :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :CIVIL ACTION v. :NO. 05-5831 CIVIL TERM THE TOWNSHIP OF NORTH MIDDLETON, Defendant PRAECIPE TO: The Prothonotary of Cumberland County Please accept for filing the attached Affidavit of Return of Service. Respectfully submitted, MARTSON DEARDORFF WILLIAMS & OTTO By Carl C. Risch, Esquire LD. No. 75901 Ten East High Street Carlisle, P A 17013 (717) 243-3341 Attorneys for Plaintiff Date: November 9, 2005 THE PEACE CENTRE, Plaintiff :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :CIVIL ACTION v. :NO. 05-5831 CNIL TERM THE TOWNSHIP OF NORTH MIDDLETON, Defendant AFFIDAVIT OF RETURN OF SERVICE I, Laura Marovich, being duly sworn according to law, depose and say that: I. I am a competent adult not a party to this action. 2. On November 9,2005, at approximately 3 :51 p.m., I personally served the Defendant North Middleton Township by handing a copy of a (a) Verified Complaint, and (b) Motion for Special or Preliminary Injunction, to William Myers, Supervisor, at 2051 Spring Road, Carlisle, Cumberland County, Pennsylvania. 3. I am permitted to serve the Defendants under PaRC.P. 400(b)(1) because the civil action requests relief under Pa.R.c.P. 1531. ~v:f,J, COMMONWEALTH OF PENNSYLVANIA SS COUNTY OF CUMBERLAND 911- On this, the tflth day of November, 2005, before me the undersigned officer, personally appeared Laura Marovich known to me or satisfactorily proven to be the person whose name is subscribed to the within instrument and acknowledged that she executed the same for the purposes therein contained. In witness whereof, I hereunto set my hand and official seal. r: ~ a~~~ Notary Public NOTARIAL SEAL VICTORIA L. OTTO NOTARY PUBLIC CARLISLE BORO" CUMBERLAND COUNTY MY COMMISSION EXPIRES DEC. 2 2006 ~ THE PEACE CENTRE, Plaintiff v. THE TOWNSHIP OF NORTH MIDDLETON, Defendant :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :CIVIL ACTION :NO. 05-5831 CIVIL TERM CERTIFICATE OF SERVICE I hereby certify that a copy ofthe foregoing was served by First Class Mail as follows: Date: November 9, 2005 James Bogar, Esquire 1 West Main Street Shiremanstown, PA 17011 Byf{(J;L) Carl C. Risch ~ c.,;;J ~;_.i"\ -.,.. (S ....:;.: ----- , ....0 e') ~-\ :_:;~-ll f'!.iC. (:~ !;::\() ,;5,\7, 25 '."';; __eo; ~ s:; C-' .p THE PEACE CENTRE, Plaintiff :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA NOV 0 9 2005 {P' ~ v. :CIVIL ACTION :NO. OS'. !5 f3 f CwJ THE TOWNSHlP OF NORTH MIDDLETON, Defendant ORDER ANDNOW,this /(),tIJ dayof ?7 P7AMnluY>~ ,2005, upon consideration ofthe attached Motion for Preliminary of Special Injunction, a hearing in the above-captioned matter is hereby set for / Zf}J'(/JJ1J..uy023, 2005, at I: 3{) # L, Cumberland County, Pennsylvania. o'clock, in Courtroom BY THE COURT / ---/ /f 4 J. 11-0' \ \~ \1 J~L\'ii'(" - ~ ' -"'-;',n,t'jt"\ ,. 'ilIV L ~ :f: Hd 0 I 'ION SDDZ AiJ\i'LOiiC:UCdd :iHl dO :;r;:~~().-(Pll:l "~V";~"" .",:J . F:\FILESIDA TAFILElGenera!\Current\l] 754. I,Complai:rlt NOV 0 9 2005.,1/\ P THE PEACE CENTRE, Plaintiff :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :CNIL ACTION v. NO ,', c, C Ii < I (, . - I c-r- : . v J J ~ . u,-l 1",_ THE TOWNSHIP OF NORTH MIDDLETON, Defendant ~? ~> C-," c.-=:) ~'_n C) I ....0 NOTICE ...,.., .. ~..- t L You have been sued in court. If you wish to defend against the claims set fortp. in 'the \:~ following pages, you must take action within twenty (20) days after this Complaint and ~tice.:.'W:e :'.2 served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LA WYERATONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAYBE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCE FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717)232-7536 MARTSOlf~~q~ WILLIAMS & OTTO By: '--~ LV Carl C. Risch, Esquire I.D. No. 75901 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff Date: November 9, 2005 THE PEACE CENTRE, Plaintiff :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA v. :CIVIL ACTION :NO. OS. S-f3J C~J'--r:.-.. THE TOWNSHIP OF NORTH MIDDLETON, Defendant COMPLAINT AND NOW, comes the Plaintiff, THE PEACE CENTRE, by and through its attorneys, MARTS ON DEARDORFF WILLIAMS & OTTO, and avers as follows: I. Plaintiff is a non-profit, non-stock Pennsylvania corporation with an address of 505 Cavalry Road, North Middleton Township, Carlisle, Cumberland County, Pennsylvania 17013. 2. Plaintiff is a religious institution which qualifies for exemption from taxation under Section 501(c)(3) of the Internal Revenue Code of 1996. 3. Defendant is a municipal corporation with an address of2051 Spring Road, North Middleton Township, Carlisle, Cumberland County, Pennsylvania 17013. 4. Plaintiff is the owner of 505 Cavalry Road, North Middleton Township, at which Plaintiff operates an Islamic school and spiritual center. Plaintiff also offers prayer services, including Friday prayer services, to Muslims at the Peace Centre. 5. On October 20, 2005, the Defendant, by and through its zoning officer, sent a letter to the Plaintiff directing it to cease using the facility located at 505 Cavalry Road as a "place of worship." A copy of this letter with attachments is attached hereto as Exhibit "A." 6. Defendant contends that, since "places of worship" are not permitted in the Industrial, or I-I, zone, Plaintiff is in violation ofthe Township's zoning ordinance by holding prayer services at the Peace Centre. 7. Defendant's letter acts as a "governmental action intended to interfere with religious exercise" which has the "effect of substantially burdening the free exercise of religion" as defined by the Pennsylvania Religious Freedom Protection Act, 71 P.S. SS 2402 and 2403. 8. Section 4 ofthe Pennsylvania Religious Freedom Protection Act, 71 P.S. S 2404(a) prohibits North Middleton Township from substantially burdening Plaintiff's, and Plaintiff's member's, free exercise of religion. 9. Defendant's actions are not justified as furthering a compelling state interest and, if so, are not the least restrictive means of furthering a compelling state interest. 10. Once Plaintiff proves by clear and convincing evidence that Defendant's acts have the effect of substantially burdening the free exercise of religion, Defendant has the burden of proving by the preponderance ofthe evidence that its acts further a compelling state interest in the least restrictive means necessary. 71 P.S. S 2405(f) and S 2404(b). 11. This Court has jurisdiction to hear this case under 71 P.S. ~ 2404(e) as an action against a non-Commonwealth agency as well as under 71 P.S. S 2405(a) and ~ 2406(a). 12. Because North Middleton Township's exercise of governmental authority imminently threatens to substantially burden Plaintiff's, and its member's, free exercise of religion, Plaintiffis relieved of its obligation to provide thirty (30) days notice ofthis action under 71 P.S. S 2405(a). 13. North Middleton Township has directed Plaintiffto cease holding religious services at 505 Cavalry Road and has threatened legal action against the Plaintiff if fails to obey. This action has had a "chilling effect" on Islamic worship at the Peace Centre and is presently, and substantially, interfering with religious exercise at the Peace Centre in violation of the laws ofthe Commonwealth. 14. Plaintiff avers that Defendant's exercise of governmental authority in this case is so outrageous and constitutes such a fundamental rejection of the laws of this Commonwealth that it has risen to the level of "obdurate" and "vexatious" under 71 P.S. S 2405(f), and therefore justifies the award of attorneys fees and costs. 15. Plaintiff is entitled to injunctive and declaratory relief under 71 P.S. S 2405(f) ifit proves a substantial burden on the free exercise of religion. WHEREFORE, this Court is requested to enjoin Defendant from prohibiting the use of 505 Calvary Road, North Middleton Township, as a "place of worship" under 71 P.S. S 2405(f). Respectfully submitted, MARTSON DEARDORFF WILLIAMS & OTTO (n~\.), 0. u~ .,0/ By Carl C. Risch, Esquire J.D. No. 75901 Ten East High Street Carlisle,PA 17013 (717) 243-3341 Attorneys for Plaintiff Date: November 9, 2005 '10/21/2005 17:07 71 72581698 MICHAELWILLIAMS PAGE 02 NORTH IDOLETO OWNSHI NORTH MIDDLETON TOWNSHIP 2051 Spring Road, Carlisle, PA 17013-1059 OFFICE (717) 243-8550 . FAX (717) 243-1135 . POLICE (717) 243-7910 October 20, 2005 VIA CERTIFIED MAIL NO. 700425/0 0003 1243 8066 Michael Williams 1725 Douglas Drive CarlislePA 17013 The PellCe Center Attn. Michael Williams 505 Cavalry Road Carlisle P A 17013 RE: Enforcement Notice Ordinance VioWion Dear Mr, Williams: You are the authorized representative for the The Peace Center, owneJ of roll! estate located in North Middleton Township (hereinafter the "Township"), same being Imown and numbered as The Peace Center located at 505 CIIV3lry Road. The TlllC Parcel Number of this real estate is 29-18-1367-021. The Township is of the belief that, after reasonable investigation. The Peace Center is in violation of the Township Zoning Ordinance. This violation exists and is maintained ou the above refel'enced real property for which you are responsible. The nature of the violation is as follows: in a Campus Industrial Zone (I-I) a place of worship is not allowed. You were previously notified of this violation on May 11, 2005. As such, fuese activities are in violation offue Code offue Township of North Middleton, ChapteJ 204 (Zoning Ordinance), Section 21. This chapter is known and cited as lhe "North Middleton Township Zoning Ordinance." Specifically, these activities llI'e in violation of Zoning Ordinance Section 204-21(6) (Permitted Uses in fue Campus Industrial Zone). We are fotwafding a copy of Zoning Ordinance Section 204-21. A full and complete copy of this Ordinance is available upon request. yon are advised, being the representative of The Peace Center, that the above activity must be abated within lbirty (30) days of receipt of this Notice, Failure to comply with the foregoing or to file an Application with the North Middleton Township Zoning Hearing Board wiII.r:esuIt in lb.e Township taking furlher action to ensme that the provisions of the Zoning Ordinance are met. . 10/21/2005 17:07 7172581598 MICHAELWILLIAMS PAGE 03 Should you elect to file lUI Application with the Zoning Hearing BOllfd, said application must be filed within thirty (30) days of the date of this notice. Failuxe to comply within the thirty (30) day period, unless extended by the Zoning Hearing Board, may result in legal action by the Township. Please he advised that any person, partnership or corporation who shall violate any provision of the North MiddletoJ;l Township Zoning Ordinance, as cited above, shall be liable, in a civil enforcement proceeding, commenced by the Township, to pay a judgntent of not illore than $500.00, plus all COUrt costs, reasonable attorneys' fees incutTed by the Township. No judgment shall conunence or be imposed, levied or be payable until the date of the determination of a violation by the District Justice. If the defendant neither pays nor timely appeals the judgment, the Township may enforce the judgntMt pursuant to the applicable rules of civil procedure. Each day continuance of a violation of the provisions of the North Middleton Township Zomng Ordinance shall constitute a separate violation, unleSij the District Justice determining that there bas been a violation further determines that there was a good 1aitb basis for the person, partnership or corporation violating the QTdin811ce to have believed that there was no such violation, in which event there shall be deemed only one such violation until the fiflh day following ilia date of determinatiou of a violatiou by the District Justice, and thereafter, each day that a violation continues shaIJ constitute a separate violation. All judgments, coSts, and reasonable attorney fees collected for the violation of the Zoning Ordinance shall be paid over to the T own.hip. If you have any questions regarding this Notice of the directives of North Middleton Township for corrective actions, please feel free to contact the North Middleton Township Municipal Office, 2QS 1 Spring Road, Carlisle, P A 17013 or telephone (711) 243-8550. It is the desire of North Middleton Township to work with you amicably and reasonably resolve this matter as quickly as possible. Accordingly, your cooperation is appreciated. Sincerely, -=t~ '" ~~<r North Middleton Township Codes Enforcement Officer Enclosnre Cc: Board of Supervisors James D. Bogar, Solicitor .10/21/2005 17:07 7172581598 MICHAELWILLIAMS PAGE 04 H. Off-street parking. Off-street parking shall be provided as specified in !i 204.36 of this chapter. I. Signs. Signs shall be permitted as specified in S 204-39 of this chapter. J. Access drive requirements. All access drives shall be in accordance with !l204-35 of this chapter. K. Screening. Screening must be provided along any adjoining lands within a residential zone, regardless of whether or not the residentially zoned parcel is developed. (See 9204-38 of this chapter.) L Landscaping. Any portion of the sile not used for buildings, struclures, parking compounds, loading areas, outdoor storage areas and sidewalks shall be maintained with a vegetative ground cover and other ornamental plantings. (See !i 204-38 of this chapter.) M. Outdoor storage and display. Within this zone, outdoor storage is permitted, provided all outdoor storage areas lire screened from any abutting residential zone and the outdoor storage areas comply with the setbacks imposed within this section. Outdoor display areas need not be screened from adjoining roads, if they are located within the front yard. Section 204--48 of this chapter also lists other outdoor storage and display requirements. N. Waste products. Dumpsters used for domestic garbage may be permitted within the side or raar yard, provided such dumpsters ara screened from any adjoining roads or properties. Ail dumpsters shall be set back a minimum of 50 feet from any adjoining residentially zoned properties. All waste receptacles shall be completely enclosed. O. Commercial operations standards. All industrial operations shall be in compliance with any Commonwealth of Pennsylvania and/or federal government regulations, as required by the most recent regulations made available from these governmental bodies. P. All uses shall comply with the applicable general provisions contained wrthin Article III of this chapter. Ii 204-21. Campus Industrial Zone (1.1). A. Purpose. The purpose of the Campus Industrial Zone is to provide for limited business activities within a campUS-like setting. The types of use permitted within this zone are meant to promote an attractive and self-contained employment activity center. Strict design and landscaping requirements have been imposed to assure an attractiVe appearance from within the zone, as well as from adjoining roads. Finally, significant buffering techniques are used to protect adjoining residential areas. B. Permitted uses. (1) Agriculture. subject to the standards listed in !l204-14 of this chapter. (2) Banks and other financial instilutlons. . 10/2112005 17: 07 71 72581598 MICHAELWILLIAMS PAGE 05 (3} Business, professional and financial offices. (4) Health and fitness clubs. (5) Laboralories for medical, scientific or industrial research and development. (6) Manufacturing and p<lckaging of the fOllowing; (a) Scientific, specialized and technical instruments and equipment. (b) Hardware and softW<lre for audio-video components, computers, vending machines, electronic equipment and video games. (c) Finished textile products. (d) Brushes, brooms and ccmbs. (e) Jewelry and other precious metals. (f) Photographic. lighting and timekeeping equipment. (9) Small household appliances, excluding major appliances. (h) Musical instruments and sporting equipment. (i) Cosmetics. toiJetries and pharmaceuticals. 0) Optical, dental and medical supplies and equipment. (k) Small or novelty prOducts from prepared materials (excluding the use of sheet metals). (7) Medical, dental or veterinary offices and clinics. (8) Photocopying. bookbinding, printing and publishing operations. (9) Retail sale of office supplies, office furniture. art and drafting equipment and computers. (10) PUblic, private, commercial and/or vocational and mechanical trade schools. (11) Public uses and playgrounds. subject to the applicable design standards listed in S 204-14F of this chapter. (12) Accessory uses customarily incidental to the above permitted uses. C. Special e)(ception uses (SUbject to the review procedures listed in S 204-125C of this chapter). (1) Commercial day-care facilities (see S 204-64). .10/21/2005 17:07 71 72581598 MICHAELWILLIAMS PAGE 05 (2) Hotels, motels and related uses (see 9 204-85). D, Conditional uses (subject to the review procedures listed in ~ 204-134 of this chapter). (1) Convention centers (see !}204-69). (2) Hospitals and related uses (see ~ 204-84) E. Lot design requirements. Unless otherwise specified. all uses shall comply with the lot design requirements conl8ined within the following table: 2 acres Maximum Lot Minimum Lot Width Covllrage 200 ft. 70% Maximum Permitted Height Minimum Lot Area 35ft. ' NOTES: 1 Yhe maximum permitted height may be extended up to 60 feet. if adequate fire protection is assured to all floors of the building and the building is set back a horizontal distance at least equal to its height from each property line. Prior to approval of building height exceeding 35 feet. the applicant must submit a letter from the Fire Chief of the company with primary service area responsibility for the site, attesting to adequate fire protection. F. Minimum required setbacks. Unless otherwise specified, all uses shall comply with the setpacks contained within the following table. Editor's Note: Table 8 is included at the eno CJf this chapter. G. Off-street loading. Off-street loading shall be provided as specified in g 204-37 of this chapter. In addition. no off-street loading area shall be permitted on any side of a building facing adjoining lands with" residential zone unless appropriately screened as provided here in a1 g 204-38- H Off-street parking. Off-street parking shall be proVided as specified in S 204-36 of this chapter. I. Signs. Signs shall be permitted as specified in S 204.39 of this chapter. J. Access drive requirements. All access drives shall be in accordance with Ii 204-35 of this chapter. K. Screening. Screening must be provided along any adjoining lands within a residential zone, regardless of whether or not the residentially zoned parcel is developed. (See g 204-38 of this chapter.) L. landscaping. Any portion of the site not used for buildings. structures. parking compounds, loading areas, outdoor storage areas and sidewalks shall be maintained with a vegetative ground cover and other ornamental plantlngs. (See g 204-38 of this chapter.) ,18/21/2805 17:07 7172581598 MICHAELWILLIAMS PAGE 07 M. Outdoor storage and display. Within this zone, no outdoor storage nor display shall be permitted. N. Waste products. Dumpsters used for domestic garbage may be permitted within the side or rear yard, provided such dumpsters are screened from any adjoining roads or properties. All dumpsters shall be set back a minimum of 50 feet from any adjoining residentially zoned propertJes. All waste receptacles shall be completely enclosed. O. Commercial operations standards. All industrial operations shall be in compliance with any Commonwealth of Pennsylvania and/or federal govemment regUlations, as required by the most recent regulations made available from these governmental bodies. P. All uses shall comply with the applicable general provisions contained within Article 11/ of this chapter. ~ 204-22. Industrial Zone (1-2). A. Purpose. This zone provides for a wide range of industriai activities that contribute to the well-being of the township by diversifying its economy and providing valuable employment opportunities. The required lot sizes have been kept small to accommodate the start-up industries that are likely to emerge; however, larger and heavier industries have also been permitted. This zone provides for light industrial uses as permitted by right, but requires acquisition of a conditional use for heavier and potentially more- objectionable types of industrial uses. These areas have been located near existing public utility service areas and along major roads. Design standards have been imposed to create attractive site designs and moderate the objectionable impacts associated with industrial uses. Substantial setbacks are used to protect adjoining residences. S. Permitted USes. (1) Agricultural support businesses, inclUding: (a) Facilities for the commercial processing and warehousing of agricultural products. (b) Facilities for the warohousing, sales and service of agricultural equipment, vehicles, feed or supplies. (c) Commercial stockyards or feedlots. (d) Veterinary offices, animal hospitals or kennels. (2) Agriculture, excluding commercial mushroom operations, subject to the standards listed in !l 204-14 of this chapter. (3) Laboratories for medical, scientific or industrial research and development. (4) Machine shop. (5) Manufacturing, packaging, storage and/or wholesaling of the following: . NOV 09,2005 12:58A 11/09/2005 09:53 7172431850 8772262108 MDWO page 2 PAGE 05/05 THE PEACE CENTRE, PLUntiff :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY. PENNSYLVANIA :CIVIL ACl'ION v. :NO. THE TOWNSHIP OF NORTH MIDDLETON, Defendant VERIFICATION I. Micbacl William., Pxesident of the Peace Centre. hereby verify that, to the best of my knowledge, information, and believe, all averments in this doo\1ment arc true ond correct, and that I have the authority to make this verification. This SlatellI.ellt of wrificatiOD is made SUbject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn t1IIsifications to authorities, which provides that ifI make knowingly false avetmeJJts. I may be subject to criroinal penalties. Date: Novetnber9,200S , THE PEACE CENTER, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW THE TOWNSHIP OF NORTH MIDDLETON, Defendant DOCKET NO. 05-5831 PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Jennifer B. Hipp, Esquire and James D. Bogar, Esquire, as attorneys for the Defendant, North Middleton Township. Date: November \<ir', 2005 AR, Esquire 475 One W. Main Street Shiremanstown, PA 17011-0637 (717) 737-8761 /Jp B. HIPP, Esquire #86556 One W. Main Street Shiremanstown, PA 17011-0637 (717) 737-8761 Attorneys for Defendant North Middleton Township . CERTIFICATE OF SERVICE I, Jennifer B. Hipp, Esquire, hereby certify that I am this day serving the foregoing Praecipe upon the following named individual this day by depositing same in the United States Mail, First Class, postage prepaid, at Shiremanstown, Pennsylvania, addressed as follows: Carl C. Risch Martson Deardorff Williams & Otto 10 East High Street Carlisle, PA 17013 Date: November 11s', 2005 Esquire r--) C:-:::l ,..:::::t Cf~ ) .'1'1 .--4 -X: 1", C) ,i\ N o ... . THE PEACE CENTER, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW THE TOWNSHIP OF NORTH MIDDLETON, Defendant DOCKET NO. 05-5831 PRELIMINARY OBJECTIONS OF DEFENDANT, NORTH MIDDLETON TOWNSHIP TO PLAINTIFF'S COMPLAINT North Middleton Township, by and through its Solicitors, Jennifer B. Hipp, Esquire, and James D. Bogar, Esquire, and pursuant to Pa. R.C.P. 1028(a) (2), 1028(a) (3), 1028(a) (6) and 1028(a) (7), hereby makes the following Preliminary Objections to the Plaintiff's Complaint: 1. Plaintiff's Complaint alleges that North Middleton Township (hereinafter the "Township") violated certain provisions of the pennsylvania Religious Freedom Protection Act, 71 P.S. 1) 2401 et ~ 2. By correspondence dated October 20, 2005, the Township issued an Enforcement Notice Ordinance Violation to the Plaintiff advising Plaintiff that its use of the real property at 505 Cavalry Road, North Middleton Township, Carlisle, Pennsylvania, is in violation of the Township Zoning Ordinance in that places of worship are not permitted in the Township's Campus Industrial Zone (1-1). A copy of the Enforcement Notice Ordinance Violation is attached hereto and incorporated herein as Exhibit "A". - . 3. The Plaintiff's real property at 505 Cavalry Road, North Middleton Township, Carlisle, pennsylvania is located in the Township's Campus Industrial Zone (I-I). 4. By Application dated June 21, 2005, the Plaintiff filed a Petition for Amendment to the Township Zoning Map, requesting that the zoning for its real property be changed from Campus Industrial Zone (I-I) to Highway Commercial Zone (H-C). A copy of the Plaintiff's Petition for Amendment to the Zoning Map is attached hereto and incorporated herein as Exhibit "B". 5. At a public hearing conducted on August 18, 2005, the North Middleton Township Board of Supervisors considered the Plaintiff's Application for Amendment to the Township's Zoning Map. 6. At the August 18, 2005 hearing, Mike Williams, appearing on behalf of the Plaintiff, stated that the Peace Centre's primary purpose is to maintain and use the property located at 505 Cavalry Road, North Middleton Township, as a center of worship and education. A copy of the Decision of the North Middleton Township Board of Supervisors dated August 18, 2005 regarding the Plaintiff's Petition for Amendment to the Township's Zoning Map is attached hereto and incorporated herein as Exhibit "CU. 7. By Application dated November 15, 2005, Plaintiff appealed the October 20, 2005 Enforcement Notice Ordinance 2 - . Violation to the North Middleton Township Zoning Hearing Board. A copy of Plaintiff's Zoning Hearing Board Application is attached hereto and incorporated herein as Exhibit "0". 8. The Pennsylvania Religious Freedom Protection Act requires that a complainant under the Act provide written notice to the Township by certified mail, return requested, of its intent to proceed with filing of a complaint. See 71 P.S. 5 2405 (d) . 9. Plaintiff failed to provide the required written notice pursuant to the applicable provisions of the Pennsylvania Religious Freedom Protection Act. See id. 10. Plaintiff's failure to provide the required written notice to the Township constitutes a failure of the Plaintiff to conform to the requirements of the Religious Freedom Protection Act and the Township preliminarily objects to the Plaintiff's Complaint on such basis. See 71 P.S. 5 2405(b) and Pa. R.C.P. 1028 (a) (2) . 11. Plaintiff's failure to provide the required written notice to the Township constitutes a legal insufficiency of the Plaintiff's Complaint and the Township preliminarily objects to the Plaintiff's Complaint on such basis. See 71 P.S. 52405(b) and Pa. R.C.P. 1028(a) (3). 12. The matter of the Township's October 20, 2005 Enforcement Notice Ordinance Violation (see Exhibit "A") is 3 -' currently pending before the North Middleton Township Zoning Hearing Board. 13. The Township preliminarily objects to Plaintiff's Complaint on the basis that the Plaintiff's appeal of the Enforcement Notice Ordinance Violation is a prior action which is currently pending. See Pa. R.C.P. 1028 (a) (6). 14. The Township preliminarily objects to Plaintiff's Complaint on the basis that the Plaintiff has failed to exhaust its appeal of the Enforcement Notice Ordinance Violation to the North Middleton Township Zoning Hearing Board prior to filing the instant Complaint. See 53 P.S. 55 10615, 10616.1(c) (6) and Pa. R.C.P. 1028 (a) (7). Date: November 18, 2005 R, Esquire 75 One W. Mai treet Shiremanstown, PA 17011-0637 (717) 737-8761 ~~~~H"" '"q"ice Pa. I. D. #86556 One W. Main Street Shiremanstown, PA 17011-0637 (717) 737-8761 Solicitors for North Middleton Township 4 ~ . CERTIFICATE OF SERVICE I, Jennifer B. Hipp, Esquire, hereby certify that I am this day serving the foregoing preliminary Objections upon the following named individual this day by depositing same in the United States Mail, First Class, postage prepaid, at Shiremanstown, Pennsylvania, addressed as follows: Carl C. Risch, Esquire Martson Deardorff Williams & Otto 10 East High Street Carlisle, PA 17013 Date: November 18, 2005 U',l)l Esquire ~ . IBl21/2005 17:07 7172581598 MICHAELWILl!AMS PAGE 02 NORTH IDDLETO OWNSHI NORTH MIDDLETON TOWNSHIP 2051 Spring Road, Carlisle, PA 17013-1059 OFFICE (717) 243-8550 . FAX (717) 243-1135 . POLICE (717) 243-7910 Octo~ 20, 2005 VIA CERTJFIED MAIL NO. 70042510 0003 1243 8066 Michael williams 1725 Douglas Drive Carlisle FA 17013 The FeQCC Center Attu: Michael Wl1liams 505 Cavalry Road CarlislePA 17013 RE: EnforcemeotNotice Ordinance Violation Dear Mr. Williams: You arc the authorized representative for the The Peace Center, owner of real estate located in NOIth Middleton Township {hereinafter the "TOWIlShip"}, same being known and numbered as The Peace Center located at 505 CIMlIry Road. The TlI1C Parcel NUlnber of this real estate is 29-18-1367-021. The Township is of the be1iefthat, after reasonable iuvestigation, The Peace Center is in violation of the Township Zoning Ordinance. This violation exists and is m...ntmned on the above referenced real property for which you are responsible. The nature of 1he violation is as foUo-ws: in a Campus Industrial Zone (I-I) a place of worship is not allowed. You were previously notified of this violation on May 11,2005. As suclJ, these activities 81"0 in violalion of the Code of tile Township of North Middletou. Chspta 204 (Zoning Ordinance), Section 2!. This chapter is known and cited lIS the "North Middleton T ownsbip Zoning Ordinance." Specifically, these activities are in violation of Zoning Ordinance section 204-21(B) (Permitted Uses in the Campus IndUSI:rW Zone). We are forwarding a copy o{Zoning Ordinance Section 204-21. A full and complete copy of this Ordinance is available upon request. You are advised, being the representative of The Peace Center, that the above activity must be abated within thirty (30) days of receipt of this Notice. Failute to comply with the foregoing or to file an Application with the North Middleton Township Zoning Hearing B08l"d will result in tb.c Township taking fuJtber action to ensure that the provisions of the Zoning Ordinance are met. r:. EXHIBIT " " ~ A w \1 ~ - . 18/21/2005 17:07 71 72581598 MICHAELWILLIAMS PAGE 03 Should you elect to file lUI Application with the Zoning Hearing Board, said application must be filed within thirty (30) days of the date of this notice. Failure to comply within the thirty (30) day period, unl~ extended by the Zoning Hearing Board, may result in legal action by the Township. Please be advised that any person, partnership or corporation who shall violate any provision of the N ortb Middleton Township Zoning Ordinance, a5 cited above, shall be liable, in II civil enforcemcut proceeding, commenced by the Township, to pay II judgment of not more than $500.00, plus all court costs, reasonable attorneys' fees incurred by the Township. No judgment shall conunence or be inIposed, levied or be payable until the date of the determination of II violation by the District Justice. If the defendant neither pays nor timely appeals the judgment, the Township may euf'= the judgment pursuant to the applicable rules of civil procedure. Each \I8y continuance of II violation of the provisiOllS of the North MiddlefJGn Township Zoning Ordinance shall constitute II separate violation, 1IlIl~ the District Justice determining that there has been a violation further determines that there was II good filith basis for the person, partnership or corpotatilln violatiJlg the Qrdinauce to have believed that there was no such violation, in which event there shall be deemed only one such violation until the fifth day following the date of detenniuation of II violation by the District Justice, and thereafter, each day that II violation continnes sbaII constitute a separate violation. AU Judglllents, coSt$, and reasollable attorney fees conected for the violation of !he Zoning Ordinance shall be paid over to the Township. If you have any questions regarding this Notice of the directives of North Middleton ToWllBhip for corrective actions, please feel free to contact the Nardl Middleton Township MlIIIicipal Office, 2051 Spring Road, Carlisle, PA 17013 or telephone (717) 243-8550. It is the desire of Nardl Middleton Township to work with. you amicably and reasonably resolve this matter as quickly as possible. Accordingly, your cooperation is appreciated. Sincerely, -=e~ ~ ~~'<r Nol"th Middleton Township Codes Enforcement Officer Enclosure Cc: Board of SUperv1SOfl1 JmnesD.B~,SoHcitor . - 'lB/21/2005 17:07 71 72581598 MICHAELWILLIAMS PAGE 34 H. Off-street parking. Off-street parking shall be provided as specified in 9204-36 of Ihis chapter. /. Signs. Signs shall be permitted as specified in 9 204-39 of this chapter. 1. Access drive requirements. All access drives shall be in accordance with 9 204-35 of this chapter. K. Screening. Screening must be provided along any adjoining lands Within a residential zone, regardless of whether or not the residentially zoned parcel Is developed. (See S 204-38 of this chapter.) l. Landscaping. Any portion of the site not used for buildings, structures, parking compounds, loading areas, outdoor storage areaS and sidewalks shall be maintained with a vegetative ground cover and other omamental plantings. (See !l 204-38 of this cha pter.) . M. Outdoor storage and display. Within this zone, outdoor storage is permitted, provided all outdoor storage area" are ser"ned from any abutting residential zone and the outdoor storage areas comply with the setbacks imposed within this section. Outdoor display areas need not be screened from adjoining roads, If they are located within the front yard. Section 204-48 of this chapter also lists other outdoor storage and display requirements. N. Waste products. Dumpsters used for domestic garbage may be permitted Within the side or rear yard, provided such dumpsters are screened from any adjoining roads or properties. All dumpsters shall be set back a minimum of 50 feet from any adjOining residentially zoned properties. All waste receptacles shall be completely enclosed. O. Commercial operations standards. All industrial operations shall be in compliance with any Commonwealth of Pennsylvania and/or federal government regulations, as required by the most recent regulations made aVailable from these governmental bodies. P. All uses shall comply with the applicable general provisions contained within ArtJcJe III of this chapter. Ii 204-21. Campus Industrial Zone (1-1). A. Purpose. The purpose of the Campus Industrial Zone is to provide for limited business activities within a campUs-liKe setting. The types of use permitted within this zone are meant to promote an attractive and self-contained employment activity center. Strict design and landscaping requirements have been Imposed to assure an attractive appearance from within the zone, as wall as from adjoining roads. Finally, significant buffering techniques are used to protect adjoining residential areas. B. Permitted uses. (1) Agriculture, subject to the standards listed in li 204-14 of this chapter. (2) Banks and other financial institutions. . '1~/21/2005 17:07 7172581598 MICHAELWILLIAMS PAGE 05 (3) Business, professional and financial offices. (4) Health and fitness clubs. (5) Laboratories for medical, scientific or industrial researoh and development (6) Manufacturing and packaging of the following; (a) Scientific. specialIzed and technical instruments and equipment. (b) Hardware and software for audio-video components, computers, vending machines, electronic equipment and video games. (c) Finished textile products. (d) Brushes, brooms and combs. (e) Jewelry and other precious metals. (f) Photographic, lIghting and timekeeping equipment. (g) Small household 8Ppli!lOces, excluding major appliances. (h) Musical instruments and sPorting equipment. (i) Cosmetics. toiletries and pharmaceuticals. OJ Optical, dental and mediCal supplies and equipment. (k) Small or novelty products from prepared materials (excluding the use of sheet metals). (7) Medical, dental or veterinary offices and clinics. (8) Photocopying, bookbinding, printing and publishing operations. (9) Retail sale of office supplies, office furniture, art and drafting equipment and computers. (10) Public, private, commercial and/or vocational and mechanical trade schools. (11) Public uses and playgrounds, sUbject to the applicable design standards listed in ~ 204.14F of this chapter. (12) Accessory uses customarily incidents/to the above permitted uses. C. Special exception uses (subject to the review procedures listed in !l204-125C of this chapter). (1) Commercial day-care facilities (see 9 204-64). . 'le/21/2005 17:07 7172581598 MICHAELWILLIAMS PAGE 05 (2) Hotels, motels and related uses (see ~ 204-85). D. Conditional uses (subject to the review procedures listed in ~ 204-134 of this chapter). (1) Convenlion centers (see ~ 204-69). (2) Hospitals and related uses (see ~ 204-84) E. Lot design requirements. Unless otherwise specified, all uses shall comply with the lot design requirements contained within the following table: 2 scres Maximum Lot Minimum Lot Width Coverage 2.0.0 fl. 70% Maximum Permitted Height Minimum Lot Arsa 35ft. ' NOTES: 1 The meximum perm~ted height may be extended up to 60 feet, if adequate fire protection is assured tD all f1DOrs of the building and the building is set back a horizontal distance at least equal tD its height from each property line. Prior to approval of building height exceeding 35 feet, the applicant must submit a letter from the Fire Chief of the company with primary service area responsibility for the site, attesting to adequate fire protection. F. Minimum required setbacks. Unless otherwise specified, all uses shall comply with the setbacks contained within the following table. Edito(s Note: Tab'" 8 is included III the end of this ch8pte,. G. Off-street loading. Off-street loading shall be provided as specified in ~ 204-37 of this chapter. In addition, no off-street loading area shall be permitted on any side of a building facing adjoining lands with a residential zone unless appropriately screened as provided here in at ~ 204-38. H. Off-street parl<lng. Off-street parking shall be provided as specified in ~ 204-36 of !his chapter. I. Signs. Signs shall be permitted as specified in ~ 204-39 of this chapter. J. Access drive requirements. All access drives shall be in accordance with ~ 2lJ4..35 of this chapter. K. Screening. Screening must be provided along any adjoining lands within a residential zone, regardless of whether or not the residentially zoned parcel Is developed. (See ~ 204-38 of this chapter,) L. landscaping. Any portion of the site not used for buildings, structures. parking compounds, loading areas, outdoDr storage areas and sidewalks shall be maintained with a vegetative ground cover and other ornamental plantings. (See ~ 204-38 of this chapter. ) . 10/21/2085 17:87 71 72581598 MICHAELWILLIAMS PAGE 07 M. Outdoor storage and display. Within this zone, no outdoor storage nor display shall be permitted. N. Waste products. Dumpsters used for domestic garbage may be permitted within the side or rear yard, provided such dumpsters ara screened from any adjoining roads or properties. All dumpsters shall be set back a minimum of 50 feet from any adjoining residentially zoned properties. All waste receptacles shall be completely enclosed. O. Commercial operations standards. All industrilll operations shall be In compliance with any Commonwealth of Pennsylvania and/or federal government regulations, as required by the most recent regulations made available from these govemmental bodies. P. All uses shall comply with the applicable general provisions contained within Article III of this chapter. g 204-22. Industria' Zone (1-2). A. Purpose. This zone provides for a wide range of industrial activities that contribute to the well-being of the township by diversifying its economy and providing valuable employment opportunities. The required lot sizes have been kept small to accommodate the start-up industries that are likely to emerge; however. larger and heavier industries have also been permitted. This zone provides for light industrial uses 88 permilled by right, but requires acquisition of a conditional use for heavier and potentially more- Objectionable types of industrial uses. These areas have been located near exlstlng public utility service arllas and along major roads. Design standards have been imposed to create attractive site designs and moderate the objectlonable Impacts associated with industrial uses. Substantial setbacks are used to protect adjoining residences. B. Permitted uses. (1) Agricultural support businesses, induding: (a) Facilities for the commercial processing and warehousing of agriCUltural products. (b) Facilities for the warohousing, sales and service of agricu~ural equipment, vehicles, feed or supplies. (c) Commercial stoCkyards or feedlots. (d) Veterinary offices, animal hOspitals or kennels. (2) Agriculture, excluding commercial mushroom operations, subject to the standards listed in ~ 204-14 of this chapter. (3) L.aboratories for medical, scientific or industrial research and development. (4) Machine shop. (5) Manufacturing, packaging, storage and/or wholesaling of the following: Jul. 5. 2005 9:44AM ~0.2441 P 2 APPLICATIONIPETInON FOR AMENDMENT TO THE ZONING MAj) ~ND/OR NORTH MIDDLETON TOWNSHIP ZONING ORDINANCE OF 1997 Name of Applicant: _Tkt ~<<c-e. G..J-r<. Address: OOS- G..Ufi'../Yc! 12J.. I c....,. LJ Lt 17 fl /7 ~ /3 I 717 - ,24/ - 'f&o() -- IJ u 1<.( :U I :2. ()IJ S I Ik 'P-btc-e G.lA.l-v~ Telephone No.: Applieant Date: Name of Lendowner of Record: o-bS"" Ca~r'l ;2'; CJ.II'/;i4 Pit 17"/3 G"1Jp()5 ]:1-( J tJsfr(A..( ( r - r) f L'~( -10 lI'j47 ~~o'C/~1 (de) Ml~L-e.1 tJ; I/,~~ /72(' 1JcJ~~OI.s ));(. Ctv"~j/P. At 17,1/?? I 717-)C<i -/6<(1-~- q,~~ ~~ \ B . 1..O!l('" "- Y'\~II\- wt~'L Subject Property Address: Subject Property Zone: Nature of Request: Name, address, and telephone Dumber of representative or OOIISultant Attadullents: . l. kf !oCJr.--t-/ri-.. .......v W 6--.. 2o"'("'-.J JVl....r 2. V ~",'O~.7 V-V--f-> '" EXHIBIT "" " w G ~ ~ t;; -' ~ "" {"Y<rYmrt-JA""""M A~~t...7.....in<<U.n --tl-<{~ b l<~ LJoi Jul. 5, 2005 9:44AM No.244! p, 3 Reasons CbllDge Is Beneficial to Township: I. Fvf<ir< ~f~-tI-,.r..1 (; Y' l~c"4<!l.(d f '''jUrf-y f;...~ . 2. ;::-vl"t/r~ -/burl6-"-'\. f~~'< II.;). 3, 4. Signature: Date: ~)cfs- I henlby certify that the infoIIlIlltion submitted in accordance with this Application is correct, and I further agree to pay for costs association with this Application. "$1 Date: ~h(/&r , / rrn~."",/.A~,1V 6.~t..?fIft;n...\.Ip.... Jul. J_~05 9:45AM :: Z f: ~ i ~ ~ ~ ~~i i; i~!: ~ a . i:; ...;t ;!~! ~..,.",'.o!l"""'" .tta'3~,\...l,)I. o'f,.O- ~ N0.2441_P 5 ; o i~" i!l .Hl li'H ..; ()- ....,..... :! ~ ~l !~~1 il f f;l. " z' -, ite ~! 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IN RE: APPLICATION AND PETITION OF THE PEACE CENTRE FOR ZONING AMENDMENT: BEFORE THE NORTH MIDDLETON TOWNSHIP BOARD OF SUPERVISORS CUMBERLAND COUNTY, PENNSYLVANIA APPLICATION NO. 05-02 APPLICATION AND PETITION FOR ZONING AMENDMENT DECISION OF THE NORTH MIDDLETON TOWNSHIP BO~RD OF SUPERVISORS The Peace Centre (hereinafter referred to as "Applicant") has submitted an Application and Petition for Zoning Amendment, requesting an amendment, change and modification of the North Middleton Township Zoning Map, which is a part of the North Middleton Township zoning Ordinance, Specifically, the Applicant requests an Amendment to the Zoning Map to reflect the zoning designation of Highway Commercial Zone (HC) for all that certain tract of real estate consisting of approximately 4.024 acres, same being known and numbered as 505 Calvary Road, North Middleton Township, Cumberland County, Pennsylvania. The real estate is presently 'zoned Campus Industrial Zone (I-l). The real estate is owned by The Peace Centre. The Application consists of a completed North Middleton Township Application/Petition for Amendment to the Zoning Map and/or North Middleton Township Zoning dated June 21, 2005 as submitted by the Applicant. Attached to the Application is a portion of the Zoning Map of North Middleton Township and several I- iD _\ :E:'---J >< w ilj)lVSl313.lV.lS-l1V other drawings depicting the location of the Applicant's property. The Board of Supervisors of North Middleton Township (hereinafter "Board") formally accepted the Application on July 7, 2005. The Board also set a date for the Public Hearing, same being August 18, 2005 and, further, requested the review and recommendations of the North Middleton Township planning Commission and the Cumberland County Planning Commission. The Board held a Public Hearing on the Application on August 18, 2005, said Public Hearing taking place after proper and appropriate legal advertising and posting. The Board held its deliberations and rendered its decision concerning this matter at the Public Hearing on August 18, 2005. In addition to rendering its decision, the Board directed that a written decision, with appropriate findings of fact and conclusions be prepared. This decision follows accordingly. FINDINGS OF FACT The North Middleton Township Board of Supervisors makes the following Findings of Fact: 1. The Application submitted by The Peace Centre for Zoning Amendment consists of a completed North Middleton Township Application/Petition for Amendment to the Zoning Map and/or North Middleton Township Zoning dated June 21, 2005 as submitted by the 2 Applicant. Attached to the Application is a portion of the Zoning Map of North Middleton Township and several other drawings depicting the location of the Applicant's property. See Township Exhibit No.1. 2. The Application was submitted to North Middleton Township, along with the payment of the requisite application fee, on June 21, 2005. 3. The Application requests an amendment, change and modification to the North Middleton Township Zoning Map; which is a part of the North Middleton Township Zoning Ordinance, to reflect the designation of Highway Commercial Zone (HC) for all that certain tract of real estate consisting of approximately 4.024 acres, same being known and numbered as 505 Calvary Road, North Middleton Township, Cumberland County, Pennsylvania. The real estate is owned by The Peace Centre. 4. The tract of real estate in question is presently zoned Campus Industrial Zone (1-1). 5. The Application and petition for Zoning Amendment is submitted pursuant to The Code of the Township of North Middleton, 2001, Chapter 204, Section 133. 6. The North Middleton Township Planning Commission reviewed the Application at its regularly scheduled meeting on August 9, 2005. The Planning Commission, after lengthy debate and consideration, and with some apparent hesitation, recommended 3 that this tract of land be rezoned from the Campus Industrial Zone (I-I) to Highway Commercial Zone (HC). See Township Exhibit No.4. 7. The Cumberland County Planning Commission by letter dated August 18, 2005, recommended that the zoning map change request be disapproved. See Township Exhibit No.5. 8. After proper posting and legal advertisement, as required by the Pennsylvania Municipalities Planning Code and The Code of the Township of North Middleton, 2001, the Board of Supervisors conducted the Public Hearing on August 18, 2005. See Township Exhibit No.2, Legal Notice and Proof of publication from The Sentinel confirming that publication occurred on July 29, 2005 and August 5, 2005 and Township Exhibit No.3, Correspondence from Ryan M. Hovis, Codes Enforcement Officer, confirming that the property was properly posted and the owners of all real property located in the area proposed to be rezoned were given notice of the Public Hearing. 9. All individuals who were in attendance at the August 18, 2005 Public Hearing of the Board of Supervisors were requested to sign their names and addresses on an attendance sheet. 10. At the hearing, the Applicant's representative, Carl C. Risch, Esquire, confirmed that the Applicant would not be making a stenographic record of the proceedings. The Applicant was 4 advised that the Township would not be making a stenographic record. 11. The Applicant introduced one exhibit into the record, same being a copy of a letter dated May 11, 2005 from Paul M. Fegley, North Middleton Township Codes Enforcement Officer to The Peace Center. See Applicant's Exhibit No.1. 12. Mr. Risch, in his introductory statement, stated that the requested zoning change to Highway Commercial Zone (HC) is consistent with other lands located to the north of the Applicant's property. This property is separated from the Applicant's property by the Pennsylvania Turnpike, 13. Mr. Risch stated that Robert Frey, the owner of property adjoining The Peace Centre's property was not opposed to the zoning change. Mr. Frey was not present at the Public Hearing. In addition, written correspondence from Mr. Frey was not introduced. 14. Mike Williams, appearing on behalf of the Applicant, stated that The Peace Centre was a non-profit organization whose primary purpose is to maintain and use the property located at 505 Calvary Road, North Middleton Township, as a center of worship and education for the local Muslim community. Mr. Williams is a member of The Peace Centre, serving as its representative and manager. 5 15. Mr. Williams testified that The Peace Centre may want to expand to provide for a bed and breakfast accommodation or other commercial venture. Mr. Williams testified that the building maintained by The Peace Centre at 505 Calvary Road is used as a place of religious worship. 16. The property of The Peace Centre is located in the Campus Industrial Zone (I-I) which does not provide for churches or places of worship as a permitted use, conditional use, or use by special exception. 17. Mr. Williams testified that The Peace Centre would not be agreeable to a zone change to Suburban Residential Zone (R-l) because that would impose limitations on the ability of The Peace Centre to engage in a bed and breakfast accommodation or other commercial venture. 18. Mr. Williams offered no testimony as to whether or not the requested zone change to Highway Commercial Zone (HC) would be consistent with the zoning of the neighboring properties, particularly adjoining properties to the south. In addition, Mr. Williams did not offer any testimony as to what economic impact, if any, the Applicant's requested zoning change would have on the values of the adjacent properties or, further, the general effect on the neighboring properties. Finally, Mr. Williams offered no testimony as to the sufficiency of ingress and egress to and from 6 Calvary Road to The Peace Centre, either under its present usage or expanded usages as proposed. 19. Margaret Knox and Tanna Clipp, both residing in the Township, asked questions concerning the relief requested by the Applicant and the type of courses taught at The Peace Centre and whether or not there is a tuition charge. DISCUSSION The Application/Petition of The Peace Centre for an Amendment to the North Middleton Township Zoning Map, said Application being referred to in the Findings of Fact, is not appropriate and should be denied. A change in the zoning of property owned by The Peace Centre from Campus Industrial Zone (I-I) to Highway Commercial Zone (HC) is not warranted, based upon the testimony presented. The Applicant has not presented sufficient evidence by way of the impact of the proposed zoning change on contiguous properties, the change, if any, to the neighborhood and economic impacts, if any, that would result from the proposed zoning change. The requested zoning change would not be consistent with the adjacent zoning classifications and present utilization of properties in those zones. Although property located to the 7 north of the Applicant's property is zoned Highway Commercial (HC), that property is clearly and substantially separated from the property owned by the Applicant by the Pennsylvania Turnpike. The Board is mindful of the fact that The Peace Centre, or any other owner of this property, could utilize the property in any manner allowed under the Highway Commercial Zone (HC). As Mike Williams testified, The Peace Centre contemplates exploring commercial endeavors. By granting the requested zoning change, the Highway Commercial Zone (HC) would jump over the pennsylvania Turnpike and would continue south along the Cavalry Road. With the exception of the Applicant's property, all property located off of and adjoining Cavalry Road, between the pennsylvania Turnpike and the Harrisburg (Carlisle) Pike, is zoned Suburban Residential (R-l). The Applicant's property, as compared to all of the other properties along the Cavalry Road, has a small frontage or access to the Cavalry Road. The bulk of the Campus Industrial Zone (1-1) is located to the west of the Applicant's property and to the west of the Suburban Residential Zone (R-l) that presently exist along both sides of Cavalry Road. But for the Applicant's property, general access to the Campus Industrial Zone (1-1) in this area is to and from the Harrisburg (Carlisle) Pike. 8 DECISION The Board of Supervisors of North Middleton Township hereby decides by a majority vote, with four (4) members voting in the affirmative (Vice-Chairman Shearer, Member Painter, Member Hurley and Member Bucher) and one member not participating by virtue of a voluntary recusal (Chairman Myers), that the Application! Petition for Zoning Amendment as submitted by The Peace Centre, same requesting a zoning designation change from Campus Industrial Zone (1-1) to Highway Commercial Zone (HC) , for all that certain tract of real estate consisting of approximately 4.024 acres as defined and set forth in the Application, is hereby denied. Resolved and approved this 18th day of August, 2005. ATTEST: NORTH MIDDLETON TOWNSHIP BOARD OF SUPERVISORS ~rleY, Me er Ct~--- Richard A. Bucher, Member 9 l'UV.IU. LUUU q.LLrM I~O,JbLO ~. I , ."':., ' NORTH MIDDLETON ToWNSHIP CUMBERLAND COlWrY , PENNSYLVANIA ZONING HEARING APPLICATIoN 1. I hereby apply for: (identify request and complete Ordinance section.) Alternative a.) Relief Variance x Ordinance section 204-21 (E) b. ) Special Exception Ordinance section Primary Relief c.) Appeal .tram. Zoning Officer, other Municipal body or official. X ordinance Section-2040-2T'i!l1 d.) S~bstantive Challen~e: VaHdi.ty.,.c.:fo Hap/Zoning or<;!inance Ordinance section Phone No. Tl1e l:'e'lce Centre 505:CavalxY'~ Carlisle, PA ~7013 (717 ) 243-]~47 2, Applicant's NaJI1e Address 3. Owner I s. NaJl1e Address Sane Phone No. ( 4. Applicant's Attorney Carl c, Risch, ES<;l. 10 East Hiah Stree!: Carlisle. PA 17013- 5. Location of Property kffected 505 cavalIy Road 6. Detailed Description of Use of Land: a.) Zoning District I-I b.) Present Use spil;"itual center, Islamic schOOl and (according to the Township). a pla.ce of wor"hip. Same as current use c- ) Proposed Use Expected Period of TilDe of TJ$e: petiIBiJent .- d. ) ~ EXHIBIT " w ~ ~Y '" -' ~ 4: IVU Y . 1;.1, LUU;.I if, LLrlYl I~ 0 ' J 0 L 0 ~. J ~ ~ 7. Reason for Request: (Insert Attach1nellt if Necessary) See attached letter. 8. All. required additional. infomation and exhibits in cOlIlpl.i.ance with SECTION 6Q-4 - ZONING m:A.RDlG BOARD'S l!'lJNCTIONS of the North ~iddleton Township Zoning ordinance. $I. FEES: a.) Special Use or variance Request in; (~) Conservation District . (2) Agricultural District (3) Agricultural Ho!dinq Dis~rict (4) Suburban Residential District (S) Hi-Density Res.i.dential District Amount Due: $ 200.00 b.) .special Use or v~.i.ahce Request in: . (1)" N"eiqhliorhood- Cominercial District (2) Highway Commercial District (3) Campus Industrial Dj,!i.1::~ic"t: (4) Industrial District (6) Scenic River District Amount lhl.e; $ 300.00 Z'EE OP $ '. RECEl:VED: r certify the above information and sulmUt-f::ed exhibits to be true, correct and complete. Any infor1llation I have failed to supply may be grounds tor the zoning Hearing board to dismiss application. ~ownShip Official r or We agree the HeaJ;ing by the Boaxd on this Application may be Tape Recorded rather than Stencxp;-aphicallY Recorded. (strike out i< not A<;Te..) iSlf) Applicqnt - owner - Agent \ \-\C;-\)~ Dat:e Date -. NOY. I~, LUU~ ':LL~M . , , . LIST OF ADJOINING PROPERTY OWNERS 1. Margaret B. Bushey, Trusteee c/o The Carlisle Kitchen Center 29-07-0467-003 1034 Harrisburg Pike Carlisle, PA 17013 2. Robert Frey & Linwood B. Phillips, Jr. c/o Frey & Tiley 5 South Hanover Street Carlisle, PA 17013 3. The Commonwealth ofPelUlsylvania National Guard Armory 504 Cavalry Road Carlisle, P A 17013 NO.JOLb p, 4 I~OV.". LOO, ~,LaM NO.!oLO ~,O .. ... 16/21/2005 17:67 7172561&96 MICHAaWILLIAMS PAGE 62 NORTH IDDLETO OWNSHI NORTH MIDDLETON TOWNSHIP 2051 Spring Road, Carlisle, PA 17013-1059 OFFICE (717) 243.8550 . FAX (717) 243-1135 . POUCE (717) 243-7910 -October 20, 2005 PL4 CERTtFIEDMAILNO. 7Q04 2$lO 00031243 8066 MiI:beI Wil!illuu 1125 I>ov8JasDrivo Cirtlisle P A 11013 Tho Peace Co.atct A/ln: Midlael WUJilllllB 50s CavIIry Road CadisIe P A 17013 RE: Bnformlltlllt Notioe Orcliumwe VlO!aliOll nw Mr. W"1llliIms: You arc the 8lIthorized repteSCllratiw (or ~ The Peace ~ OWDllJ ofIefll esllde lOOlPd ill NOlth MiddlelDll TOWDShip (her~ the "Townsf!1p"). Il8IIIO beiq bown aod numbered as Tho Peace Ceulm' 1ocatec18l: 505 ClMlhy Road. The Tal(. Pan:el Nml>bot offlxil1 roal..sfafe is 29-18.1367-021. The TOWIIIbip is of the bclieflhat, after reasoll3b~ iDvcdtigatiOll, Tho Peace ~ is in violation of1hc TOWIlIhip Zc4liD. 0rdiDaw:e. This violalion ll1dsIs cd is m.;"l3incd OIl the obQVI' miomloed roa1 ptOpeI1Y t<<which you IIl'll xesjlOllSible. Tho D3lIIRI of tile violatiOll is as fonows; ill a Campus Jndu$trial Zone (I-I) a pJac. of wonhip is not allowed. You were previously llod1i~ oflhis violalion on May 11, .200s. As SIIcb, ~ aCtivities are ill violstiOll otlhe Code oftb.e Townsbip of'North Middleton. CIaptllr 204 (Zoning OrdiIIlII1CC), Sedion 21. This dJapw Is kDom1 and cited lIS tho "North Middletol1 TOMlIblp ZoDiDg~,' S~caIIy. these activilies are ill violalion of Zoning 0nIiJJancc Scc:tion 204-21(B) (J'e.u.;u..J Uses ill the Campus Industrial ZOIIe). We ""' {VA ....din&.. copy of Zcmms OIdmance ~OD ;204-;21, A tun aad oompl~ copy ofthls~...., i. available upoII request. You are advised, beiJIg: the representative of The Pca<:e CelItc;r, that the above activity mmt he 8balod wifhin thirty (30) days of r~pt of t!WI Nafi= Failure to CODlply witll the tlmgoing or to filo an AptllieaaO.ll with the North Middleton Township ZoDing Hearing Board will.resu1t in the Township taking fiadu:r action 10 == ttllIt the provisions of the Zoning Oldinance are met. I~ V Y . I iJ' t.. U U V 't ' t.. L r IVI I~ U . v U L \Jr. U . 1~/21/2005 17:07 7172581698 MICHIIELWIL.LIAMS PIlGE 83 Should you elect to IDo lID Application with the Zoning Hear.b1g Board, said appliC8lion mu&t be Iiled within ihirty (SO) dayJ of the date of lhia notice. Failure to COlllpIy withiJllhe tlrlrty (SO) day period, UD.less mend~ by the ZoDiDg Hearing Board, may re5UIt in legal action by the T~hip. please be advlsed that any person, plIl1lIel"ship or coq>oration wlw sba11 violalie lIIIY provision of die North Middlotvu ToWll$hip Zoning~. as cited above, shall be lisble, in a civil eaforcemcnt proccec!iog, WIlDIlenced by die To'l'lllShip. to pay a judgment of not more rlIIm $$00.00, pius all CObIt CQSIS, I_able all"OlIlC)'s' fees incurred by die ToWDSllip. No jadsmtltt shall ~ or be lmpOlled, levied or be payablo IIIIlil the dare of the dcterIninallOll of a violation by the District Justice. If the de!aIdant neither pays nor timely 8ppe8I5 the F.tv-. the: T 0WlIIbip IIlIIY cut'otce die judpem pIll"iUam: to the appliCllble rn1e.s of clvil poo..tdme. ElIC1I day CCIltIDuaDoe of 8 vio/aliOll of dI. provisious of tht North MicIdIetoIIl'ownsbip Z~ ~ shall CODSlitate " seplQIO viQlatiOll, v.uless lb. D18lrict Justice ddl!l'mini"8 that Ihm has bee a viO/aliOlllUrthc;r dde.ttniIIl'$ that ~ WlIS a sood 1llidI basis for die persall, par1Daship or corporaIioI1 viol8liDg !be ~ce tn hive believed dlar 1IIe.re was IlO SIaCb vio181l00, in which event dJeno iball be deemed only one mch viol8tion 1lOll1lhe fiAll day tb110Mas tho date I)f deWm4nAllOO of. violation by tM District llt1li"" aad thereafter, eadl day that a v:Iolalion 00DtinlIe8 shaD COlIItiInle a ~ violalioD.. An jndgu''''ItS, eoSlS, aad rct50lIable auomey feH eoDected for tlle violatUm of the ZaoiJlg OIdiunoe IIIuIll b. paid 0VIll" to ~ Townsbip. Xi yw h_ aJrf lluestiollf ~. this Notice of thc: ~ of NOrth Middlctoo Township for comctive acdoD... pIaa> $e1 free to COIIIact dle NonIJ Middleton TO'MI.Bhip M:Jmieipal Oftke, 2051 SpriDg Road. Carlisle, PA 17013 or teleplI<me (717) 24341550. It is the desl!e of North Middleton ToWDShfp to wOlle wilh YOll amlalbIy aad t""SOlI"hly reaolve tflis majjer at quickly :II poMible. AccordiosJy, YOU1 ~0lI is llPJl,I'fCialcd Sincemy, ~~ 'vS--~ Nonh MIddleton T<no:llIhip Codes !'.nforceInc:ot 0fJi= EllcI08lII"C Co: Board of Supervisors 1_0. Bogar, Solicitor C1 ~\' \ c) ;'.! ,-., FFILES\DAT AFILE\General\Current\t J754.1.First Amended Complaint THE PEACE CENTRE, Plaintiff :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :CIVIL ACTION v. :NO.05-5831 THE TOWNSHIP OF NORTH MIDDLETON, Defendant NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGffiLE PERSONS AT A REDUCE FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, P A 17013 (717)232-7536 :y~RFFWILLIAMS & OTTO Carl C. Risch, Esquire LD. No. 75901 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff Date: November 22, 2005 THE PEACE CENTRE, Plaintiff :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :CIVIL ACTION v. :NO. 05-5831 THE TOWNSHIP OF NORTH MIDDLETON, Defendant FIRST AMENDED COMPLAINT AND NOW, comes the Plaintiff, THE PEACE CENTRE, by and through its attorneys, MARTS ON DEARDORFF WILLIAMS & OTTO, and avers as follows: I. Plaintiff is a non-profit, non-stock Pennsylvania corporation with an address of 505 Cavalry Road, North Middleton Township, Carlisle, Cumberland County, Pennsylvania 17013. 2. Plaintiff is a religious institution which qualifies for exemption from taxation under Section 501(c)(3) of the Internal Revenue Code of 1996. 3. Defendant is a municipal corporation with an address of2051 Spring Road, North Middleton Township, Carlisle, Cumberland County, Pennsylvania 17013. 4. Plaintiff is the owner of 505 Cavalry Road, North Middleton Township, at which Plaintiff operates an Islamic school and spiritual center. Plaintiff also offers prayer services, including Friday prayer services, to Muslims at the Peace Centre. 5. On October 20,2005, the Defendant, by and through its zoning officer, sent a letter to the Plaintiff directing it to cease using the facility located at 505 Cavalry Road as a "place of worship." A copy ofthis letter with attachments is attached hereto as Exhibit "A." 6. Defendant contends that, since "places of worship" are not permitted in the Industrial, or I-I, zone, Plaintiff is in violation of the Township's zoning ordinance by holding prayer services at the Peace Centre. 7. Defendant's letter acts as a "governmental action intended to interfere with religious exercise" which has the "effect of substantially burdening the free exercise of religion" as defined by the Pennsylvania Religious Freedom Protection Act, 71 P.S. SS 2402 and 2403. 8. Defendant's letter imposes or implements a land use regulation in a manner that imposes a substantial burden on the religious exercise of Plaintiff and its members as prohibited by the federal Religious Land Use and Institutionalized Persons Act, 42 U.S.c. S 2000cc. 9. Defendant's letter represents the implementation of a land use regulation or system of land use regulations under which the Defendant makes, or has in place formal or informal procedures or practices that permit the Defendant to make, individualized assessments of the proposed uses for the property involved. 10. Defendant's prohibition on religious assembly and worship in the Township's Industrial (I-I) zone treats religious assembly on less than equal terms with nonreligious assembly in violation ofthe federal Religious Land Use and Institutionalized Persons Act, 42 U.S.C. S 2000cc. 11. Defendant's prohibition on religious assembly and worship in the Township's industrial (I-I) zone unreasonably limits religious assembly and/or institutions in violation of the federal Religious Land Use and Institutionalized Persons Act, 42 U.S.c. S 2000cc. 12. Defendant's prohibition on religious assembly violates Plaintiffs rights under the First, Fifth, and Fourteenth Amendment to the Constitution of the United States and is a violation of Plaintiffs right to free exercise of religion and its rights to due process and equal protection. 13. Section 4 ofthe Pennsylvania Religious Freedom Protection Act, 71 P.S. S 2404(a), prohibits North Middleton Township from substantially burdening Plaintiffs, and Plaintiffs member's, free exercise of religion. 14. Defendant's actions are not justified as furthering a compelling state interest and, if so, are not the least restrictive means of furthering a compelling state interest. 15. Once Plaintiff proves by clear and convincing evidence that Defendant's acts have the effect of substantially burdening the free exercise of religion, Defendant has the burden of proving by the preponderance ofthe evidence that its acts further a compelling state interest in the least restrictive means possible. 71 P.S. S 2405(f) and S 2404(b); see also 42 US.C. S 2000cc-2. 16. Plaintiff is asserting a claim against Defendant under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 US.c. S 2000cc-2, and this Court has concurrent jurisdiction to hear this claim under S 2000cc-2. Plaintiff also asserts a claim in this Court's concurrent jurisdiction under 42 US.c. S 1983, and demands attorneys fees and costs under 42 U.S.C. S 1988, since Defendant's actions violate federal law (RLUIP A) and Plaintiffs rights under the First, Fifth, and Fourteenth Amendments to the Constitution of the United States. 17. This Court has jurisdiction to hear this case under 71 P.S. S 2405(e) as an action against a non-Commonwealth agency as well as under 71 P.S. S 2405(a) and S 2406(a). 18. Because North Middleton Township's exercise of governmental authority imminently threatens to substantially burden Plaintiffs, and its member's, free exercise ofreligion, Plaintiff is relieved of its obligation to provide thirty (30) days notice of this action under 71 P.s. S 2405(c). 19. North Middleton Township has directed Plaintiffto cease holding religious services at 505 Cavalry Road and has threatened legal action against the Plaintiffiffails to obey. This action has had a "chilling effect" on Islamic worship at the Peace Centre and is presently, and substantially, interfering with religious exercise at the Peace Centre in violation ofthe laws of the Commonwealth and of the United States. 20. Plaintiff avers that Defendant's exercise of governmental authority in this case is so outrageous and constitutes such a fundamental rejection of the laws of this Commonwealth that it has risen to the level of "obdurate" and "vexatious" under 71 P.S. S 2405(f), and therefore justifies the award of attorneys fees and costs. 21. Plaintiff is entitled to injunctive and declaratory relief under 71 P.S. S 2405(f) ifit proves a substantial burden on the free exercise ofreligion. Plaintiff is also entitled to injunctive relief, declaratory relief, money damages, and attorneys fees under 42 U.S.C. 2000cc, 42 US.C. S 1983, and 42 US.C. S 1988. WHEREFORE, this Court is requested to enjoin Defendant from prohibiting the use of 505 Calvary Road, North Middleton Township, as a "place of worship" under 71 P.S. S 2405(f), and for injunctive relief, declaratory relief, money damages, and attorneys fees under 42 U.S.C. 2000cc, 42 US.C. S 1983, and 42 US.C. S 1988. Respectfully submitted, MARTS ON DEARDORFF WILLIAMS & OTTO By (ffi)O Carl C. Risch, Esquire LD. No. 75901 Ten East High Street Carlisle, P A 17013 (717) 243-3341 Attorneys for Plaintiff Date: November 22, 2005 lA/21/2005 17:07 71 72581598 MICHAELWILLIAMS PAGE 02 NORTH IDDLETO OWNSHI NORTH MIDDLETON TOWNSHIP 2051 Spring Road, Carlisle, PA 17013-1059 OFFICE (717) 243-8550 . FAX (717) 243-1135 . POLICE (717) 243-7910 October 20, 2005 VIA CERTIFIED MAlL NO_ 70042510 0003 1243 8066 Michael Williams 1725 Douglas Drive Carlisle PA 17013 The Peace Center Attn: Michael Williams 50S Cavalry Road Carlisle P A 17013 RE: Enforcement Notice Ordinance Violation Dear Mr. Williams: You are the authorized representative for the The Peace Center, owner of real estate located in North Middleton Township (hereinafter the "Township"), sllll1e being known and numbered as The Peace Center located at 505 Cavahy Road_ The Tax Parcel Number of this real eState is 29-18-1367-021. The Township is of the belief that, after reasonable investigation, The Peace Center is in violation of the Township Zoning Ordinance_ This violation exists and is maintained on the above referenced real property for which you are responsible. The nature of the violation is as follows; in a Campus Industrial Zone (I-I) a place of worship is not allowed. You were previously notified oftbis violation on May 11,2005_ As such, these activities are in violation of the Code of the Township of North Middleton, Chapter 204 (Zoning Ordinance), Section 21- This cbapter is known and cited as the "North Middleton Township Zoning Ordinance." Specifically, these activities are in violation of Zoning Ordinance Section 204-21(B) (Permitted Uses in the Campus Industrial Zone). We are forwarding a copy of Zoning Ordinance Section 204-21. A full and complete copy of this Ordinance is available upon request. You are advised, being the representative of The Peace Center, that the above activity must be abated within thitty (30) days of receipt of this Notie<:. Failure to comply with the foregoing Or to file au Application with the North Middleton Township Zoning Hearing Board will result in the Township taking fintber action to ensure that the provisions of the Zoning Ordinance are met. W/21/2005 17: 07 71 72581598 MICHAELWILLIAMS PAGE 03 Should you elect to file an Application with the Zoning Hearing BolU"d, said application must be filed within thirty (30) days of the date of this notice, Failuxe to comply within the thirty (30) day period, unless extended by the Zoning Hearing Board, may result in legal action by the Township. Please he advised that any person, pmtnership or corporation who ,hail violate any provision of the North MiddletoJ;l Township Zoning Ordinance, as cited above, shall be liable, in a civil enforcement proceeding, commenced by lhe Township, to pay a judgntent of not illore than $500.00, plus all coUrt costs, reasonable attorneys' fees incurred by lhe Township. No judgment shall conunence or be imposed, levied or be payable until the date of the determination of a violation by the District Justice. If the defendant neither pays nor timely appeals the judgment, the Township may enforce the judgment pursuant to the applicable rules of civil procedure. Each day continuance of a violation of the provisions of the North Middleton Township Zoning Ordinance shall constitute a separate violation, unless the District JuStice determining that there has been a violation further determines that there was a good faith basis for the person, partnership or corpotlltion violating the QTdinance to hllVe believed that there was no such violation, in which event there shall be deemed only one such violation until the fiflh day following the date of determination of a violation by the District Justice, and thereafter, each day that a violation continues shaIJ constitu1e a separate violation. All jndgulents, coSts, and reasonable attOrney fees collected for the violation of the Zoning Ordinance shall be paid over to the Township. If you have any questions regarding this Notice of the directives of North Middleton Township for corrective actions, please reel free to contact the North Middleton Township Municipal Office, 2051 Spring Road, Carlisle, PA 17013 or telephone (711) 243-8550. It is the desire of North Middleton Township to work wilh you amicably and reasonably resolve this matter as quickly as possible. Accordingly, your cooperation is appreciated. Sincerely, -=t~ ~ ~~<r North Middleton Township Codes Enforcement Officer Enclosure Cc: Board of Supervisors James D. Bogar, Solicitor 1~121/2005 17:07 71 72581598 MICHAELWILLIAMS PAGE 04 H. Off-street parking. Off-street parking shall be provided as specified in S 204-36 of this chapter_ I. Signs, Signs shall be permitted as specified in S 204-39 of this chapter. J. Access drive requirements. All access drives shall be in accordance with S 204-35 of this chapter. K. Screening. Screening must be provided along any adjoining lands within a residential zone, regardless of whether or not the residentially zoned parcel is developed. (See S 204-38 of this chapter,) L. Landscaping. Any portion of the site not used for buildings, structures, parking compounds, loading areas, outdoor storage areas and sidewalks shall be maintained with a vegetative ground cover and other ornamental plantings. (See S 204-38 of this chapter.) M. Outdoor storage and display_ Within this zone, outdoor storage is permitted, provided all outdoor storage areas are screened from any abutting residential zone and the outdoor storage areas comply with the setbacks imposed within this section. Outdoor display areas need not be screened from adjoining roads, if they are located within the front yard. Section 204--48 of this chapter also lists other outdoor storage and display requirements. N_ Waste products. Dumpsters used for domestic gartlage may De permitted within the side or raar yard, provided such dumpsters are screened from any adjoining roads or properties. All dumpsters shall be set back a minimum of 50 feel from any adjoining residentially zoned properties. All waste receptacles shall be completely enclosed. O. Commercial operations standards. Ail industrial operations shail be in compliance with any Commonwealth of Pennsylvania and/or federal govemment regulations, as required by the most recent regUlations made available from these govemmental bodies. P. All uses shall comply with the applicable general provisions contained within Article III of this chapter. ~ 204-21. Campus Industrial Zone (1-1). A. Purpose. The purpose of the Campus Industrial Zone is to provide for limited business activities within a campus-like setting. The types of use permitted within this zone are meant to promote an attractive and seif-contained employment activity center. Strict design and landscaping requirements have bean imposed to assure an attractive appearance from within the zone, as weil as from adjoining roads. Finally, significant buffering techniques are used to protect adjoining residential areas. B. Permitted uses_ (1) Agriculture, subject to the standards listed in S 204-14 of this chapter. (2) Banks and other financial institutions, L0/21/2005 17:07 71 72581598 MICHAELWILLIAMS PAGE 05 (3) Business, professional and financial offices. (4) Health and fitness clubs. (5) Laboratories for medical, scientific or industrial research and development (6) Manufacturing and p<lckaging of the fOlloWing: (a) Scientific. specialiZed and technical instruments and equipment. (b) Hardware and software for audio-video components, computers, vending machines, electronic equipment and video games. (c) Finished textile products. (d) Brushes, brooms and combs. (e) Jewelry and other precious metals. (I) Photographic, lighting and timekeeping equipment (9) Small household appliances, excluding major appliances. (h) Musical instruments and sporling equipment. (I) Cosmetics, toiletries and pharmaceuticals. (j) Optical, dental and medical supplies and equipment. (k) Small or novelty products from prepared materials (excluding the use of sheet metals). (7) Medical, dental or veterinary offices and clinics. (8) Photocopying, bookbinding, printing and publishing operations. (9) Retail sale of office supplies, office furniture, art and drafting equipment and computers. (10) Public, private, commercial and/or vocational and mechanical trade schools. (11) Public uses and playgrounds, subject to the applicable design standards listed in 9 204-14F ofthis chapter. (12) Accessory uses customarily incidental to the above permitted uses. C. SpeCial exception uses (subject to the review procedures listed in 9 204-125C of this chapter). (1) Commercial day-care facilities (see 9 204-64). 1~/21/2005 17:07 , 7172581598 MICHAELWILLIAMS PAGE 05 (2) Hotels. motels and related uses (see ~ 204-85). D. Conditional uses (subject to the review procedures listed in ~ 204-134 of this chapter). (1) Convention centers (see S 204-69). (2) Hospitals and reiated uses (see S 204-84) E. Lot design requirements. Unless otherwise specified, all uses shall comply with the lot design requirements contained within the following table: Minimum Lot Area Maximum Lot Minimum Lot Width Covurage 2 Beres 200 ft. 70% Maximum Pennltted Height 35ft. ' NOTES: 1 The maximum permitted height may be extended up to 60 feet, if adequate fire protection is assured to all floors of the building and the building is set back a horizontal distance at least equal to its height from each property line. Prior to approval of building height exceeding 35 feet, Ihe applicant must submit a letler from the Fire Chief of the company with primary service area responsibility for the site, attesting to adequate fire protection. F. Minimum required setbacks. Unless otherwise specified, all uses shall comply with the setbacks contained within the following table. Edhor's Note: Table a is included at the end of this chapter. G. Off-street loading. Off-slreet loading shall be provided as specified il1 ~ 204-37 of this chapter. In addition, no off-street loading area shall be permitted on any side of a buiiding facing adjoining lands with a residential zone unless appropriately screened as provided here in at !l 204-3B. H. Off-street parKing. Off-street parking shall be prOVided as specified in S 204-36 of this chapter. I. Signs. Signs shall be permitted as specified in S 204.39 of this chapter. J. ACcess drive requirements. All access drives shall be in accordance with !\ 204--35 of this chapter. K. Screening. Screening must be provided along al1Y adjoining lands within a residential zone, regardless of wllether or not the residentially zoned parcel is developed. (See ~ 204-38 of this chapter.) L Landscaping. Any portion of the site not used for buildings, structures, parking compounds, loading areas, outdoor storage areas and sidewalks shall be maintained with a vegetative ground cover and other ornamental plantings. (See !i 204-38 of this chapter.) ~9/21/2005 17:07 71 72581598 MICHAELWILLIAMS PAGE 07 M. Outdoor storage and display. Within this zone, no outdoor storage nor display shall be permitted. N. Waste producls. Dumpsters used for domestic garbage may be permitted within the side or rear yard, provided such dumpsters are screened from any adjoining roads or properties. All dumpsters shall be set back a minimum of 50 feet from any adjoining residentially zoned properties. AU waste receptacles shaU be completely enclosed. O. Commercial operations standards. All industrial operations shall be in compliance with any Commonwealth of Pennsylvania andlor federal government regulations, as required oy the most recent regulations made available from these governmental bodies. P. All uses shall comply with the applicable general provisions contained within Article III of this chapter. ~ 204-22. Industtial Zone (1-2). A. Purpose. This zone provides for a wide range of industrial activities that contribute to the well-being of the township by diversifying its economy and providing valuable employment opportunities. The required lot sizes have been Kept small 10 accommodate the start-up industries that are likely to emerge; however, larger and heavier industries have also been permitted. Thi~ zone provides for light industrial uses as permitted by right, but requires acquisition of a conditional use for heavier and potentially more- Objectionable types of industrial uses. These areas have been located near existing public utility service areas and aiong major roads. Design standards have been imposed to create ~ractive site designs and moderate the objectionable impacts associated with industrial uses. Substantial setbacks are used to protect adjoining residences. S. Permitted uses. (1) Agricultural support businesses, including: (a) Facilities for the commercial processing and warehousing of agriCUltural products. (b) Facilities for the warehousing, sales and service of agricultural equipment, vehicles, feed or supplies. (c) Commercial stockyards or feedlots. (d) Veterinary offices, animal hospitals or kennels. (2) Agriculture, excluding commercial mushroom operations, subject to the standards listed in ~ 204-14 of this chapter. (3) Laboratories for medicel, scientific or industrial research and development. (4) Machine shop. (5) Manufacturing. packaging, storage and/or wholesaling of the following: 71 n43t B5B MDWO page 2 PAGE: ~U61 NOV 2~,2005 04:37P 11/22/2665 lG:32 8772262108 v. :IN THE COURT OF COMMON PlEAS OF :CUMBERLAND COUNTY, PENNSYLV ANlA :CIVIL ACTION as" - S<f,1 \ :NO. THE PEACE CENTRE, Plaintiff THE TOWNSHIP OF NORTH MIDDLETON, Defendant VERIFICATION I, Mi~hael William~, President of the Peaoe Centre, hereby verify that, to tm: best of my knowled8e, information, and believe, all averments in this docwnent lIfll tnle and oorrect, and that I have ilie authority to make this verification. This statement ofverification is made BUbject 10 the penalties of 1 g Pa.C.S. Section 4904 relating to unsworn falsifications to authorities, which provides tbaI if! make knowingly talse avennenlll, I may be slLbject to criminal penalties. Date: November 22, 2005 THE PEACE CENTRE, Plaintiff v. THE TOWNSHIP OF NORTH MIDDLETON, Defendant :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :CIVIL ACTION :NO. 05-5831 CERTIFICATE OF SERVICE I, Carl C. Risch, do hereby that the foregoing was served by First Class Mail and/or facsimile and/or hand delivery as follows: James D. Bogar, Esquire Jennifer B. Hipp, Esquire 1 West Main Street Shiremanstown, PA 17011-0637 Steven K. Ludwig, Esquire Fox Rothschild, LLP 2000 Market St., 10th Floor Philadelphia, PA 19103-3291 (JfJjj) Carl C. Risch Dated: November~ 2005 M ("i f.':' (...) ""-1 ';0-,\ :--J _, {-\ . -.' ,', " -, WI THE PEACE CENTRE, Plaintiff :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :CIVIL ACTION v. :NO. 05-583 I THE TOWNSHIP OF NORTH MIDDLETON, Defendant PLAINTIFF'S AMENDED MOTION FOR PRELIMINARY OR SPECIAL INJUNCTION AND NOW, comes the Plaintiff, The Peace Centre, by and through its attorneys, Martson Deardorff Williams & Otto, and hereby amends its motion to this Court for a preliminary injunction under Pa.R. c.P. 1531 enjoining and restraining Defendant pending final hearing and determination ofthis action from prohibiting Plaintiff from using its property located at 505 Cavalry Road, North Middleton Township, as a "place of worship," and in support avers as follows: I. The First Amended Complaint filed on November 23, 2005, is hereby incorporated herein as if fully set forth. 2. Unless Defendant IS effectively restrained and enjoined, as described with particularity in the Complaint filed in this case and in this Motion, Plaintiff will suffer immediate, substantial, and irreparable harm by a governmental action which substantially burdens Plaintiff's free exercise of religion in violation of71 P.S. S 2404,42 U.S.C. S2000cc, 42 U.S.C. S 1983, and the First, Fifth, and Fourteenth Amendments to the Constitution of the United States. 3. The issuance of a preliminary injunction will not cause undue inconvenience or loss to the Defendant, but will prevent irreparable injury to the Plaintiff. 4. This Court is specifically authorized to award injunctive relief by 71 P.S. S 2405(f). This Court has concurrent jurisdiction to provide injunctive relief under 42 U.S.c. S2000cc, 42 . U.S.c. 9 1983, and the First, Fifth, and Fourteenth Amendments to the Constitution of the United States. 5. Plaintiff is likely to succeed in proving its case at trial. 6. Because Plaintiff is proceeding under 42 U.S.C. 9 1983 and the Religious Land Use and Institutionalized Persons Act, Plaintiff is not required to exhaust any administrative remedies before seeking judicial relief. See Murohv v. Zoning Comm'n of the Town of New Milford, 148 F.Supp.2d 173 (D. Conn. 2001). Plaintiffis also not required to exhaust any administrative remedies under the Pennsylvania Religious Freedom Protection Act. 7. In view of the fundamental right to freedom of worship at issue in this case, Plaintiff avers that a bond is unnecessary in this case. WHEREFORE, Plaintiffs respectfully request that this Court enter an Order preliminarily enjoining and restraining Defendant and its employees, agents, assigns, and successors in interest from prohibiting Plaintifffrom using 505 Cavalry Road, North Middleton Township, as a "place or worship." :yARTS~flF WILLIAMS & OTTO Carl C. Risch, Esquire PA Attorney LD. No. 75901 Ten East High Street Carlisle, P A 17013 (717) 243-3341 Attorneys for Plaintiff Date: November 23, 2005 THE PEACE CENTRE, Plaintiff v. THE TOWNSHIP OF NORTH MIDDLETON, Defendant :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :CIVIL ACTION :NO.05-5831 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served by Facsimile as follows: Date: November 23,2005 James Bogar, Esquire Jennifer Hipp, Esquire 1 West Main Street Shiremanstown, PA 17011 Steven K. Ludwig, Esquire Fox Rothschild, LLP 2000 Market St., lOt" Floor Philadelphia, PA 19103-3291 By (11) Carl C. Risch ^_.,.---- /~ r-,..) (-~; (': (,,"" - IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA THE PEACE CENTRE, Plaintiff, CIVIL ACTION No.: 05-583! v. THE TOWNSHIP OF NORTH MIDDLETON, Defendant. ENTRY OF APPEARANCE To the Prothonotary: Kindly enter my appearance on behalf of Defendant The Township of North Middleton in this matter. J~"~.~;re~}) ./ Attorney 1.D. # 40417, Fox Rothschild, LLP 2000 Market Street, Tenth Floor Philadelphia, PA 19103-3291 (215) 299-2164 (215) 299-2150 Counsel for Defendant Dated: November 23,2005 . CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing entry of appearance was served on counsel of record, via hand delivery on the 23rd day of November, 2005, addressed as follows: Carl C. Risch, Esquire Martson DeardorffWiIIiams & Otto Ten East High Street Carlisle, PAl 70\3 Counsel for Plaintiff Jr' ( ~~ J/( !~L{;1 gt ven K. Ludwig \ ./ Dated: November 23, 2005 C~I , r-.....,) C":? ,:-~:, C,/1 n .:"1-' :=! ,$ "" (..,) i',.) c., THE PEACE CENTER, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW THE TOWNSHIP OF NORTH MIDDLETON, Defendant DOCKET NO. 05-5831 PRAECIPE TO WITHDRAW APPEARANCE TO THE PROTHONOTARY: please withdraw the appearance of Jennifer B. Hipp, Esquire and James D. Bogar, Esquire, as attorneys for the Defendant, North Middleton Township. Date: NovemberZ"If, 2005 it.u?D~ JAMES D. BOGAR, quire Pa. LD. #19475 One W. Main Street Shiremanstown, PA 17011-0637 (717) 737-8761 I JENN Pa. I. One W. Main Street Shiremanstown, PA 17011-0637 (717) 737-8761 \~ Esquire Attorneys for Defendant North Middleton Township . CERTIFICATE OF SERVICE I, Jennifer B. Hipp, Esquire, hereby certify that I am this day serving the foregoing Praecipe upon the following named individual this day by facsimile transmission and by depositing same in the United States Mail, First Class, postage prepaid, at Shiremanstown, Pennsylvania, addressed as follows: Carl C. Risch Martson Deardorff Williams & Otto 10 East High Street Carlisle, PA 17013 Facsimile 717-243-1850 Date: Novernbert'if', 2005 J~~~PP' Esquire ~2 r" C) c:"! c".' -n ,:_.1"1 :::::l C" ,,-..- r--;' ",.0 " , , ~, , THE PEACE CENTRE, Plaintiff VS. TOWNSHIP OF NORTH MIDDLETON, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNS YL VANIA CIVIL ACTION - LA W NO. 05-583 I IN RE: PETITION FOR PRELIMINARY OR SPECIAL INJUNCTION S. AND NOW, this BEFORE HESS, J. ORDER day of December, 2005, the motion of the plaintifffor Preliminary or Special Injunction is DENIED, without prejudice. /" ....eirrl C. Risch, Esquire For the Plaintiff ~ven K. Ludwig, Esquire For the Defendant :rlm BY THE COURT, AJ '.' ,_.:.:J ::',.-\ , ,~" " THE PEACE CENTRE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 05-5831 TOWNSHIP OF NORTH MIDDLETON, Defendant IN RE: PETITION FOR PRELIMINARY OR SPECIAL INJUNCTION BEFORE HESS, J. MEMORANDUM OPINION AND ORDER The plaintiff, The Peace Centre, commenced this action, sounding in part in equity, on November 9,2005. The plaintiff has also requested the entry ofa preliminary injunction pursuantto Pa.R.C.P. 1531. The Peace Centre is located in a so-called "Campus Industrial" zone (I-I). The Peace Centre is a nonprofit Islamic center which hosts facilities for education and for worship. On October 20, 2005, the defendant, Township of North Middleton (hereinafter the "Township") sent a letter to the plaintiff indicating that a place of worship is not allowed in a Campus Industrial zone. The letter further directed the plaintiff to cease and desist the operation of The Peace Centre. The same letter, however, invites the plaintiff to "file an Application" with the Township.! On or about November IS, 2005, the plaintiff filed a request with the Zoning Hearing Board for a variance to operate a place of worship at the site of The Peace Centre. The parties 1 The letter, itself. does not delineate the specific application to be filed but the parties are in general agreement that it is for a variance. NO. 05-5831 agree that the filing of this application automatically stays the Township's authority to take any action against the plaintiff. The plaintiff has initiated this action against the Township under the relatively recently adopted Pennsylvania Religious Freedom Protection Act, 71 P.S. 2401 et seq. The Act provides, in pertinent part, as follows: S 2404. Free exercise of religion protected (a) General rule. - Except as provided in subsection (b), an agency shall not substantially burden a person's free exercise of religion, including any burden which results from a rule of general applicability. (b) Exceptions. - An agency may substantially burden a person's free exercise of religion if the agency proves, by a preponderance of the evidence, that the burden is all of the following: (l) In furtherance of a compelling interest of the agency. (2) The least restrictive means offurthering the compelling interest. 71 P.S. 2404. At our recent hearing, the plaintiff made a case for the proposition that the exercise of their religion would be substantially burdened by the closure of The Peace Centre. Moreover, they observed that many of the uses permitted in the I-I zone allow for the assembly of people, albeit for sectarian and/or commercial purposes. While The Peace Centre acknowledges that it has pending a request for a variance, it contends that the mere suggestion by the Township that its operation violates the Zoning Ordinance entitles it to a preliminary injunction. We disagree. 2 NO. 05-5831 The grant of a preliminary injunction is a harsh and extraordinary remedy to be entered only when the criteria therefore have been fully and completely established. Pleasant Hills Const. Co., Inc. v, Public Auditorium Auth of Pittsburgh, 782 A2d 68 (Pa.Cmwlth. 2001). The criteria include: (1) That the preliminary injunction is necessary to prevent immediate and irreparable harm which cannot be compensated for by money damages; (2) greater injury will result from the denial of the preliminary injunction than from the granting of it; and (3) the entry of a preliminary injunction will operate to restore the parties to the status quo as it existed prior to the alleged wrongful conduct. In addition, the plaintiff must show that the alleged wrong is manifest and the right to relief is clear. ld. citing Committee of Seventy v. Albert, 381 A2d 188, 190 (Pa.Cmwlth. 1977) and T W Phillips Gas and Oil Co. v. Peoples Natural Gas Co., 492 A2d 776 (Pa.Cmwth. 1985). As previously noted, the plaintiff has requested that the Zoning Hearing Board grant a variance to operate a place of worship at their site. The filing of this application automatically stays the Township's authority to take any action against the plaintiff. In short, the plaintiff is not being prevented from operating an Islamic school and spiritual center nor from conducting prayer services at the site. We are satisfied, for today, that the plaintiff cannot establish a threat of immediate and irreparable harm nor that there is some need to restore the parties to the status quo ante. If the sought-for variance is denied in this case, then it may well be that we will again be called upon to consider preliminary injunctive relief. By the same token, if the variance is granted, then the request for a preliminary injunction will become moot. In the meantime, we will deny the request for a preliminary injunction but without prejudice. 3 NORTH ~IDDLETO 'OWNSHI NORTH MIDDLETON TOWNSHIP 2051 Spring Road, Carlisle, PA 17013-1059 OFFICE (717) 243-8550 . FAX (717) 243-1135 . POLICE (717) 243-7910 May 11,2005 The Peace Center 505 Calvary Rd. Carlisle Pa. 17013 RE: The Peace Center Dear Sirs, The property known as the "Peace Center" located in North Middleton Township, at 505 Calvary Rd., Carlisle, P A, Paroel No. 29-18-1376-021 is looated in the Campus Industrial Zone (I-I). The North Middleton Township Codes Department is of the understanding that the Peaoe Center is being used as a place of worship and as a sohooL Both of these uses are not allowed in the I-I zone. The Peace Center is hereby on notioe that, by allowing this . property to be used as a plaoe of worship and as a sohool, it is in violation of the Code of the Township of North Middleton, Chapter 2004 (Zoning Ordinance), Section 22 - Industrial Zone (I-2). At this point, it would appear that the Peace Center has the following available options: (1) Abandon the present uses. (7) Re(lllest tPat this property bo rezonorl +0 0 70"0 tho+ "o=;+s +h;S nmnorty \- ~ '"'1-. ~ ~ ... ...... ................. ~ J..J....... ......lLl.1- J:--',-,-'..l..I..u... w...u. l:-'.lvl-'..... to be used as a place of worship and as a sohooL As an example, the Suburban Residential Zone (R -1) allows for churches and related uses by way of special exception. For your convenience, we are attaching a copy of the uses permitte(i in the Suburban Residential Zone (R -I), being uses by right, permitted uses, special exception uses and conditional uses. Also attached are copies of applications for rezoning and special exceptioD- We strongly suggest that you or your advisor review the North Middleton Township Zoning Ordinance. By so doing, you will be fully advised as to all available options. It is possible that you and/or your advisor might conclude that other options are available. . Should you elect to request a rezoning, completed applications for rezoning and special exception, along with the appropriate fees, must be returned to North :Middleton Township on or before May 27,2005. Alternatively, please communicate, in writing, to the undersigned on or before May 27,2005 as to the course of action that you will take in RESPONDENT'S EXHIBIT .. order to come into full compliance with the applicable provisions of the North Middleton Tovffiship Zoning Ordinance. Should the Township not receive the applications and fees, or a written co=unication, "yMa" 27 2nn< +J-,e T~"-sJ-,;~ "~illl ,,~"'~ t"L--;~~ L~ol a^"M +^ J-,";~^ +J-,~ ~~^_~,.;v ;~+^ u ..l..l J ,. vV..J, WJ. V"I'.l..l. _LUl-" I"~ 1.I'-'5J.ll u..u"..LL.l.5 .L'-'Su..l v\...Lva l.-V UJ..l.ll5 1..lJ.L> pJ.vp.....J.l.-J J.J..ll.V compliance with the zoning. If you have any questions, the Codes Department can be reached at 243-8550, Monday tbroughFriday8:00 am to 5:00 pm. Sincerely, ~ ~~,~~~\j North Middleton Township ._ Gode,P,nf-orcement-Gmcer _..__ Cc: Board of Supervisors Township Manager James D. Bogar Esq. CUMBERLAND COUNTY PLANNING COMMISSION 18 North Hanover Street, Suite 102 Carlisle, PA 17013 Fax (717) 240-6517 www.ccpa.netiplanning Planning (717) 240-63 77 (717) 240-6 I 71 (717) 240-5381 August 18, 2005 /Z;-;". 'fl, .!':;" - ~({.;':r;::.> .1/.'", "-'::":J<j'::.T>:-f~ '-"U&, n t;.;/ "1/'" '" <:;J. '--Sl o ~.... ""I r. "f.. -.. '-U!J:" -', ,j " -, " " ..-......... " Open Space- Preservation (717) 240-5383 Farmland Preservation (717) 240-6537 Ryan Hovis North Middleton Township 2051 Spring Road Carlisle, P A 17013 RE: Proposed zoning map change - The Peace Center Dear Ryan, The Cumberland County Planning Commission reviewed the aforementioned zoning map change at their meeting on August 18,2005. The CCPC recommends that the map change be disapproved for the following reasons: 1. The subject parcel is bounded to the north by the Pennsylvania Turnpike and the west and south by a substantial R-I zone that- includes numerous existing dwelling units. The HC designation would be incompatible with these uses. 2. The HC use should be focused on P A 34 which already is better suited to accommodating HC development than Cavalry Road. 3. North Middleton should consider rezonmg the subject parcel to R-l where religious institutions are permitted by special exception. Furthermore, the R-I designation is consistent with surrounding zoning districts. lfthe map change is approved, please forward a copy of the updated North Middleton Township zoning map to the Cumberland County Planning Commission so we may update our records. Feel free to contact me should you have any further questions. Regards, /f<<tl4f- KirkD. Stoner, AICP Executive Director RESPONDENT'S EXHIBIT ~ It Id3[oS" j,.--F'l~ Page 5 Public Hearing Co=ercial but did support the change to Residential. Supervisor Shearer added . could be used for banks, retail sales etc. iitherczomIi.CT i,:\Tas chang:-ed to :Hi2:hy{~ COillJILercial , ~ ~ ~ Mr. Risch noted gOl.c--:tg from Industrial to llighway Co=ercial was 311 in::i.port t change 311d he did note the board's concern. Supervisor Hurley nott";'d he was reluctant to change a zone to some plan. Supervisor HurleY added the intended uSe is ill the realms of a afer use. Supervisor Hurley noted he would not change the rezoning without knowing the inte ed uses. Supervisor Shearer noted the property should be rezoned for use not potential. Tawna Clipp of20 Northvit";'w Drive questioned if student were charged a fee to attend the school Mr. Williams noted the Peace Centre was not char . a a fee at this time. Supervisor 8h=(:[ questioned if the school was just a religious in ctrination school. Mr. Williams noted the Arabic husauage was taught. r articulated the zoning perfectly. Supervisor Bucher d fit. Testimony Closing The testimony and evidentiary portion of the h Deliberation Supervisor Bucher noted Supervisor She discussed how the church and school co Conclusion Supervisor Bucher moved to deny e Peace Centre rezqning request from Campus Industrial (I-I) to Highway Commercial (H ). Supervisor Painter seconded the motion, and the motion carried with a 4-0 vote. Sup . r Myers abstained from the vote. The board authorized Solicit Bogar to prepare a decision ofllie hearing. The public hearing was co eluded at 7:05 p.m Respectfully submitted, Mary Ann Hays Townsbip Secreta..-y Lori A Cole Recording ecretary PETITION BY INTERNATIONAL FEllOWS ATTENDING US ARMY WAR COllEGE The Peace Genter in North Middleton Township is providing spiritual guidance and help to the Muslim community of Garlisle and the surrounding area, including the International Fellows, attending the US Army War Gollege. The location of the Peace Genter is particularly suitable as it permits use during the US War Gollege lunch break. If the Peace Genter is closed, it will make it very difficult for us to attend to the daily prayers, especially the Friday noon prayers, for which we will have to go to the Harrisburg mosque. We strongly request that the Peace Genter be allowed to continue operations at its present location and facilitated to provide services to the Muslim community in the area. Signed by: BRIG GEN Elsisi, Egypt BRIG GEN Mahfooz, Bangladesh BRIG GEN Gilani, Pakistan ~ ' GOl Alfadhala, Bahrain ---- Gal Sukarto, Indonesia ~~ Gal Karam, Iraq ~aJp ~ tf .?~ Gal AI-Qudah, Jordan 1l!i11eJ111l/1 . Gal Al Bagami, Saudi Arabia ~ Gal AI Mazrooei r ~ :=-' - Gal Saleh, Yemen l T Gal Shahbazkhil, Afghanistanp:; ! l T Gal Hannache, Algeria / (/ l T Gal Zamani, MOroc~ ,.---- l T Gal Verinli, Turkey ~~ PETITIONER'S EXHIBIT 1\\~3IO; d i..Ff-( f MDW&O INFORMATION. ADVlCE . ADVOCACY ArrORNEYS & COUNSELLORS AT LAW TELEPHONE FACSIMILE IN1'ERNET (717) 243-3341 (7\7) 243-IS50 www.mdwo.com WILLIAM F. MARTSON JOHN B. FOWLER ill DAN1EL K. DEARDORFf THOMAS 1. W1LLIAMS. Ivo V. Om III GEORGE B. FALLER JR. * CARL C. RISCH DAVID A. FITZSIMONS CHRISTOPHER E. RICE JENNIFER L. SPEARS HILLARY A DEAN 10 EAST HIGH STREET CARLISLE, PENNSYLVANIA 17013 ~BOAJU) CERTIfiED CIVIl-TRIAl. SPECIAliST November 15, 2005 Zoning Hearing Board of North Middleton, Township. 2051 Spring Road Carlisle, P A 17013 RE: ThePeace Centre: Appeal oftJecisiol)- of Zoning Officer in 1-1 Zoning Di;trict and, alternatively, a Reqilest for Yilrial}ce. .. . 505C<liv~Road,NorthMiddleton To~ship,Pennsylvania. Tax Parcel No. 29-18,1367,021-EX To whom 'it may concern: . . . , ' . , Please be a4vised that thi~Iaw firm represents The Pea~eC"ntre. }Snclosedareseven (7) .. copies of aZoning Hearing Appliclliion,tlle pOO.OO applicatiollc fee, and a list ofadjoiningprop~rt)' owners. The. Peace Cen~re is primarilY appeiilhJg frbm a decision of the Zoning Qfficcruhder 53 P.S. S 10909: 1 (a)(3). HoweVer, as alternative relief, the peace Centrc is requesting thafthe Zoning . Hearing Board grant the applicant a variance to operate a place of worship at th~ above address. Simply put, prohibitiqn$ on religiousdssemlJly in the TO\VIiship 'sI, I zoning district\fiolate . the federal Religious Land Use and lpstitutionalized Persons Act 0[2090 (42 0;~.C.J2000cPJ,the . First Amendment to the Constitution of the United States; and the Cpnstitutiqnofthe Commonwealth of Pennsylvania. Thep~n:nitted al}d tonditional uses listed for the I' lzoliedearly permit non-religious assembly of persons inthatzonc, To pennitnon-religiotj,i ~ssemblywherlthe Township prohibits religious assembly is a clear violation of the law , This appeal t() the Zoning Hearing Board is theTownship' sopporturUty to correct its position and .~voida S 1983 aciionbeing . commenced with the United States I/istriCt Court for the Mi.4dle mstrict of Pennsylvania. . While the prohibition of religious assembly also viohtesthe PeunsylvaniaReligious Freedom Protection Act, this matter is currently hefore the Court of Common Pleas of Cumberland County, which properly has original juiisdiction to consider that claim. Very truly yours, . MARTS ON DEARDORFF WILLIAMS & OTTO ~OO Carl C. Risch cc: James Bogar, Esquire Mi.chael Rllildle, Esquirc Enclosure l'-\HLES\DATAFILE\GeneraJICufTenIIJ J 754. I.mbl INFORMATION; AOVICE . AOVOCACY SM RESPONDENT'S EXHIBIT 11(;;l3ioS" lrF rl , / '"'"..... NORTH MIDDLETON TOWNSHIP CUMBERLAlID COUNTY, PENNSYI,VANIA ZONING B:EARING APPLICATION 1. I hereby apply for: (identify request and complete Ordinance section.) Alternative Relief a. ) variance x ordinance section 204-2;1. (B) b. ) special Exception ordinance Section Primary Relief c. ) Appeal from Zoning Officer, other Municipal body or officiaL X ordinance Sectionc;U)~2Pl') d~) Substantive. Cha~le!lge:. Val-idi:ty..-,c~. Map/ZcnL~g ordinance. Ordinance Section Phone No. The )?ea.ce Centre 505....CaV;3.l.rvRoad Carlisle, PA 17013 (717 ) 243-B47 2, Applicant's NaJlle Address 3. Owner's Name Address Sama Phone No. ( 4. Applicant's Atto=ey Ca.r:l C. Risen, Esq. 10 East Hiah StreClt Carlisle, PA 17013 5. Location of Property Affected 505 Cava.lry Road 6 _ Detailed Description of Use of Land: a.) Zoning District I-I b. ) Present Use Spidtual centeri Islandc school and. (according to the Township), a . p:Lace of )-IOrshi);>. Same as =rent use c.) Proposed Use Expected Period of Time of Use: pein1aI)ent . . d.} ~" 7. Reason for Request: (Insert Attachment if Necessary) See attached letter. S. All required additional infonnation and exhibits in compliance with SECTION 604 - ZONING HEARING BOARD'S FUNCTIONS of the North Middleton Township Zoning Ordinance. 9. FEES: a.) Special Use or Variance Request in; el} Conservation District (2) AgricultUral District (3). Agricultural Holding District (4) Suburban Residential District (5) Hi-Density Residential District .i\.1nount Due: $ 200.00 b.) . Special Use or Vari<l-nce Reauest in: (1)' Neigliliarhood- CtJJ1lIDercj;l District (2) Highway Commerci<l-l District (3) Campus Industrial District (4) Industrial District (5) Scenic River District Amount Due; $ 300.00 FEE OF $ . . RECEIVED. I certify the above information and submitted exhibits to be true, correct and complete. Any information I have failed to supply may be grounds for the Zoning Hearing board to dismiss application. I or We agree the Hearing Board on this Application Tape Recorded rather Stenographically Recorded. ont if not Agreed) by the may be than ( strike Township Official Applicant - cro Olffler - Agent Date \\-\S-Ij-s' Date LIST OF ADJOINING PROPERTY OWNERS 1. Margaret B. Bushey, Trusteee c/o The Carlisle Kitchen Center 29-07 -0467 -003 1034 Harrisburg Pike Carlisle, PAl 70 13 2. Robert Frey & Linwood B. Phillips, It. c/o Frey & Tiley 5 South Hanover Street Carlisle, PA 17013 3. The Commonwealth of Pennsylvania National GuardAnnory 504 Cavalry Road Carlisle, PA 17013 NOV-23-05 WED 08:54 AM JAMES D BOGAR FAX NO, 717 737 2086 P. 02/03 ':dll-',,: (lj':I'.CF: CF1\1",ilER, Pji"JinUU IN 'I'll!:: COURT OF COMMON I'LEAS CUHBERLAND COUNTY, PF.NNSYINANTA v. CIVI.L ACTION - LAW ~L'il'r'~ 11IOVIN~3HJ. P OV NOJ('l'H ~nD))LE'l'ON, D~;;tc}nr,~nnt DOCKE'r NO. 05.-5831 :>\~~1!F,~J;!,~_---'1,'rLW,J;~+:~!:(?J:!-jItj'LAl?l'EAllANc;K 'I'D ''C Il I': PROTll0NO']'AHY: [>10,-u:;(> \.)i.thdl,:'C\.W tlw appe,'lnmco of ,Tenl1;,fe'l:" B. lLipp, Esq\l1_I:\o (~tlcl ~'HA.~ll\?f:, D. fJOgdY, g[-)Cf\..drc, dB attor-neys tor the Defendnnt( N.,-,.d,b HJddlelrm 'f'ownsldp. 0"1;,',, Novomb'.rc ,yj, 200!j \.\l>1'YLQ1) )). J30 :j{VL (,QJJI (_1------.---.....-------' .,,--,.,......,,------- JAMES P. BOGAR, Es(:~ire 1:'". LD. 1t19<175 Or18 W. MaIn Street ShirernanstOWl1, Pi\. 17011-0637 (7171 737-.8761 21.~~~~!~~' .B __J~:~!:R.e ~~,.;_. ,JENNIFER B. !lIFP, BSqltiro pC). I.D, #86556 One W. Main 8treet ~,hiremilm,t.O\'m, PA 17011-0637 ('J17) 737.-8761 Attorneys fot" Defendant North Middleton 'l'01NTlBhip NOV-23-05 WED 08:54 AM JAMES D BOGAR FAX NO, 717 737 2086 p, 03/03 Q~~!l,!,_IFI.t;:,Il"T.<;_Q!LflE;~Yri;E 1, ,TenniJ'(n; B. HipI', Esquire, heroby cerl:ify that I "1m t_hi,/; (lClY Dl'l:ving the, ["wegoin,j 1'1'''8ci po upon l:11e ::ollowing namcc1 indiv:l(lU<11 thin c1i;'Y by fuc~j,mi1c tral1l,mission and by dQPo:oH:ln(J rWmc~ in Lho United St[.~t.es Mlii.l j First Closs, posta~Jo prepaid, nt~ Sht1'~'mn~H;~t.ownJ P0.IH1fJylvania, Cl.dtlre5Bed ,1S follow!;: C,uel C. Risch Mi'\.n~'Wll Doanlor.f.f Wil11anm & Otto 10 Rase High Stroet C"diBlo, Pl\ 1'7013 FBcaimilo 717-243-1850 )) l !if ,c._ r) 'j "00" l'l .(]: ovom,.l(")I ,., -, ... ;J S2:~!L~M:~:~/3 "",,! (L.pp _._~< 0 -_'d"__ ,Tf.mnifcr ll. Ilip[l, J;;f,quire THE PEACE CENTRE, Plaintiff :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :CIVIL ACTION v. :NO. 05-5831 THE TOWNSHIP OF NORTH MIDDLETON, Defendant PLAINTIFF'S PRE-HEARING MEMORANDUM OF LAW L Purpose of Memorandum The purpose of this Memorandum of Law is to set forth those legal tests and precedents that should be used by the Court in determining whether Plaintiff is entitled to preliminary injunctive relief under Rule 1531 after presenting testimony to the Court on November 23, 2005. II. Case Summary Plaintiff, the Peace Centre, commenced this action on November 9, 2005, by filing a complaint against the above Defendant, the Township of North Middleton (hereinafter, the "Government"). Simultaneous to commencing the action by complaint, the Peace Centre moved for a preliminary injunction pursuant to Pa.R.C.P. 1531. AI! of the relevant facts are set forth in the Peace Centre's Complaint. Simply put, the Government has directed the Peace Centre, a charitable Islamic spiritual center, to cease using its facility located at 505 Calvary Road as a "place of worship." A copy ofthe relevant letter is attached to the Complaint as Exhibit "A." The Government reasons that, since "places of worship" are not listed as permitted uses in the I-I (industrial) zone, religious assembly can be prohibited by the 1 Government at Plaintiffs facility. The Government has not defined "worship" nor has it identified what, exactly, the Peace Centre and its members have done to offend the Government. Plaintiff initiated this action against the Government under the Pennsylvania Religious Freedom Protection Act (RFPA), 71 P.S. SS 2401-2407, a relatively new and untested law enacted by the General Assembly in 2002. As eXplained below, RFP A requires that the Peace Centre prove by clear and convincing evidence that the Government has substantially burdened the Peace Centre's, or its members' , free exercise of religion, including any burden which results from a rule of general applicability. 71 P.S. SS 2404(a) and 2405(1). If the Peace Centre carries its burden, it is entitled to injunctive and declaratory relief unless the Government can prove by the preponderance of the evidence that its actions further a compelling interest in the least restrictive way. 71 P .S. S 2404(b). As further explained below, the Peace Centre avers that the Government's letter, which unambiguously and expressly prohibits the use of the Peace Centre's facility as a "place of worship," substantially burdens the free exercise of religion. The Peace Centre will also present testimony at the hearing further elaborating on the "chilling effect" Government's actions have had on Islamic activities at the Centre. III. Issue Are Plaintiffs entitled to preliminary injunctive relief under Pa.R.c.P. 1531 and relevant case law? Suggested answer: Yes 2 IV. Discussion Pennsylvania courts have granted preliminary injunctions e~oining actions taken bypolitical subdivisions. Moscatiello v. Whitehall Borough, 848 A.2d 1071 (Pa. Commw. 2004). Moreover, a court has granted a preliminary injunction enjoining a political subdivision from infringing upon a Muslim's religious rights under the Pennsylvania Religious Freedom Protection Act. Deveaux v. Citv of Philadelphia, 2005 WL 1869666 (Phila. 2005). A trial court may preliminarily enjoin a political subdivision when the moving party demonstrates: (1) that relief is necessary to prevent immediate and irreparable harm which cannot be compensated for in damages; (2) that greater injury will occur from refusing the injunction than from granting it; (3) that the injunction will restore the parties to the status quo as it existed immediately before the wrongful conduct; (4) that the alleged wrong is manifest, and the injunction is reasonably suited to abate it; and (5) that the plaintiff's right to relief is clear. Moscatiello v. Whitehall Borough, 848 A.2d 1071, 1074 (Pa. Commw. 2004). A. Plaintiff will be irreparablv harmed if a preliminary iniunction is not !!ranted Plaintiffs are requesting that this Court grant a preliminary injunction enjoining Defendant from prohibiting the Peace Centre's use of 505 Calvary Road as a "place of worship." Limitations on the free exercise of religion inflict irreparable injury that cannot be compensated by money damages. See Tenaflv Eruv Ass'n v. Borough of Tenaflv, 309 F.3d 144 (3d Cir. 2002) (cited in 3 Deveaux, sunra). Irreparable harm is inflicted even ifthe limitation is for "minimal periods oftime." Nichol v. ARIN Intermediate Unit 28, 268 F.Supp. 536 (W.D. Pa. 2003) (citing Tenaflv). Therefore, the harm caused by the Government's action is ner se irreparable since it clearly and unambiguously limits religious expression and assembly. B. Greater iniury will occur from refusine: the iniunction than from e:rantine: it As explained above, Plaintiff contends that the Peace Centre and its members will be irreparably harmed ifthe Government is not enjoined from prohibiting worship at 505 Cavalry Road. Conversely, the Government and the public will not be harmed at all if this Court grants the preliminary injunction. The Government has not made any allegations that the Peace Centre and its members have been disruptive or otherwise harmful to the public in their participation in religious assembly at the Centre. In fact, the Government has not even specifically defined what actions it is seeking to prohibit other than "worship." Therefore, the greater injury will occur from refusing the injunction. h The injunction will restore the oarties to the status QUO as it existed immediatelv before the wrone:ful conduct. As explained above, Plaintiffis seeking an injunction narrowly crafted to maintain the status quo and to protect the Plaintiff from irreparable harm. .!!..... The wrone: is manifest and the iniunction is reasonablv snited to abate it As explained above, the Government has taken affirmative steps to prohibit Plaintiffs right to religious assembly. These steps have been direct and unambiguous, and the result has been 4 immediate and harmful by discouraging adherents to Islam from participating in any prayer or worship at the Peace Centre. The injunction, however, is suited to abate this wrong by simply prohibiting the Township from taking steps to prevent the Plaintiff from using its facility as a "place of worship." The Plaintiff asks for nothing other than judicial protection of its rights under the Pennsylvania Religious Freedom Protection Act. E.c. Plaintifrs ril!ht to relief is clear In order to prove their entitlement to a preliminary injunction, Plaintiff must demonstrate that its right to relief is clear. In this case, the Pennsylvania Religious Freedom Protection Act (RFP A) requires the Peace Centre prove by clear and convincing evidence that the Government has "substantially burdened" its free exercise of religion. 71 P.S. S 2404(a); S 2405(f). The phrase "substantially burden" is defined in 71 P.S. S 2403, and includes significant constraints on religious conduct or expression, curtailment on the expression of religious faith, and restrictions on reasonable opportunities to engage in religious activities. Once Plaintiff has carried its burden of proof, the burden shifts to the Government to prove by the preponderance of the evidence that it has a "compelling interest" in substantially burdening the Peace Centre's religious expression and that this interest has been furthered in the least restrictive means possible. See 71 P.S. S 2404(b). In this case, the Peace Centre can prove by clear and convincing evidence that the Government is substantially burdening religious expression. The Government's letter dated October 20,2005, and attached to Plaintiffs Complaint as Exhibit "A," clearly orders the Peace Centre to cease using 505 Cavalry Road as a "place or worship" (which is certainly religious conduct, a religious activity, and the expression of religious faith) and threatens legal action ifthe Peace Centre 5 fails to follow this order. While the letter does not clearly define "worship," the letter is crystal clear on one very important point - North Middleton Township considers organized worship and prayer at the Peace Centre's facility to be illegal and threatens the Centre and its members with civil penalties ifthey fail to obey. The position of the Government, as explained in the October 20th letter, "substantially burdens" the Peace Centre's (and its members') right to assemble and pray at the Centre in direct violation of RFP A. The Peace Centre will present testimony proving that the Government's letter has actually curtailed Islamic prayer and assembly at the Peace Centre, and, therefore, has had a "chilling effect" on Islamic worship generally. This Court is specifically vested with jurisdiction by RFPA to consider the Peace Centre's claims since North Middleton Township is a "non-Commonwealth Agency" as defined in the Act: [A] person alleging a violation of[92404] by a non-Commonwealth agency may bring an action in the court of common pleas for the county where the non-Commonwealth agency's office is located. 71 P.S. 9 2405(e). Moreover, this Court is vested with the power to provide injunctive and declaratory relief and, if the Government's actions are found to be vexatious or obdurate, to award attorneys fees. See 71 P.S. 9 2405(f).1 IThe RFPA'sjurisdictionallanguage is quite broad, and it fully empowers this Court to consider Plaintiffs claims without any obligation to exhaust administrative remedies before a zoning hearing board, a Board of Supervisors, or any other administrative tribunal: A person whose free exercise ofreligion has been burdened or likely will be burdened in violation of[92404] may assert that violation against an agency as a claim or defense in any judicial or administrative proceeding. 71 P.S. 92405(a) (emphasis added). This act shall apply to any State or local law or ordinance and the implementation of that law or ordinance, whether statutory or 6 Since the Township's zoning hearing board does not have the power to grant injunctions or attorneys fees, this Court could properly consider Plaintiffs Complaint within its equity jurisdiction even if the RFP A did not so unambiguously vest it with original jurisdiction. See, generallv, ~ v. Citv of Monongahela, 526 A.2d 170, 948 (Pa. 1991 )(Plaintiff may pursue equity action against Township, even though it failed to exhaust remedies before zoning board, because zoning board lacked the delegated jurisdiction to grant injunctions or impose penalties as requested by Plaintiffs); Empire Sanitary Landfill. Inc. v. Commonwealth, 684 A.2d 1047, 1054 (Pa. 1996) (explaining that, where legal or equitable remedies are unavailable or inadequate, or an administrative tribunal is unable to provide the requested relief, a Plaintiff has no obligation to exhaust administrative remedies). Therefore, this case is properly before this Court under both RFP A and Pennsylvania law generally.' otherwise.... 71 P.S. S 2406(a). It is important that the RFP A, in its lengthy "exceptions" subsection does not except land use oriented proceedings from this Court's original jurisdiction. 71 P.S. S 2406(b). 'It must be noted that the Defendant has filed preliminary objections to the Peace Centre's complaint alleging three defects. The first defect, failure to exhaust administrative remedies, is fully explained above. Plaintiff is under no obligation to seek relief from the Zoning Hearing Board under RFP A. Second, Defendant alleges that Plaintiff s appeal to the Zoning Hearing Board is a "prior pending action." Since the ZHB appeal was filed after the action currently pending before this Court, Defendant's objection has no merit. Moreover, the Supreme Court has stated that, where two actions are consistent with each other, no election ofremedies would be required. See~, 584 A.2d at 949. Third, Defendant alleges that Plaintiff has failed to provide the Township with 30-days notice of this action as required by RFP A. 71 P.S. S 2405(b). As explained in the Complaint ('1[12), Plaintiff is relieved of this obligation by 71 P.S. S 2405(c) since North Middleton Township's exercise of governmental authority burdening the Peace Centre's free exercise ofreligion is "imminent." In fact, the burden is contemporaneous to this action and ongoing. As explained by the Third Circuit in the Tenafly case, even a minimal infringement on religious expression constitutes irreparable harm. 7 In summary, Plaintiff respectfully requests that this Court enjoin North Middleton Township from prohibiting the Peace Centre from using its facility as a "place of worship" until a final decision is made by this Court. v. Conclusion For the reasons stated above and based on the evidence to be presented at the Preliminary Injunction hearing, Plaintiff maintains that it is entitled to the relief requested in the Motion for Preliminary or Special Injunction. Respectfully submitted, MARTSON DEARDORFF WILLIAMS & OTTO /) By Carl C. Risch, Esquire LD. No. 75901 Ten East High Street Carlisle, P A 17013 (717) 243-3341 Attorneys for Plaintiff Date: November 22, 2005 8 CERTIFICATE OF SERVICE I, Carl C. Risch, do hereby that the foregoing was served by First Class Mail and/or facsimile and/or hand delivery as follows: James D. Bogar, Esquire Jennifer B. Hipp, Esquire I West Main Street Shiremanstown, PA 170\1-0637 C Q);0D Carl C. Risch Dated: November 22, 2005 9 NOV 2 3 2U05 t~1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA THE PEACE CENTRE, Plaintiff, CIVIL ACTION No.: 05-5831 v. THE TOWNSHIP OF NORTH MIDDLETON, Defendant. ORDER AND NOW, this day of November, 2005, upon consideration of Plaintiff s Motion for Preliminary or Special Injunction, Defendant's response thereto, and following a hearing, said motion is DENIED. BY THE COURT: Kevin A. Hess, J. PHI 778377vl 11/23/05 . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA THE PEACE CENTRE, Plaintiff, CIVIL ACTION No.: 05-5831 v. THE TOWNSHIP OF NORTH MIDDLETON, Defendant. MEMORANDUM OF LAW IN RESPONSE TO PLAINTI FF'S MOTION FOR PRELIMINARY OR SPECIAL INJUNCTION I. INTRODUCTION This equitable action arises from the filing of a Complaint in Equity accompanied by a Motion for Preliminary or Special Injunction by Plaintiff The Peace Centre against The Township of North Middleton. Plaintiff seeks an order to enjoin North Middleton from prohibiting plaintiff from using 505 Cavalry Road as a place of worship. This memorandum oflaw supplements the preliminary objections filed with the Court on Friday. Plaintiff has and continues to operate an Islamic school and spiritual center and to conduct prayer services at 505 Cavalry Road. As such, plaintiff cannot meet the immediate and irreparable harm requirement necessary to establish a claim to special injunctive relief. Plaintiff also has failed to exhaust its administrative remedies. Plaintiffs cannot establish any ofthe other elements of injunctive relief, including that they would prevail on the merits and/or that greater injury will OCCUr if the injunctive relief is not granted. Accordingly, plaintiffs Motion for Preliminary or Special Injunction should be denied. PH 1 7783 77v I 11/23/05 . II. Argument A. Plaintiffs' Motion For A Preliminary Injunction Should Be Denied As Legally Insufficient 1. Standard for a Motion for Preliminary Injunction. A preliminary injunction is "a most extraordinary fonn of relief which is to be granted only in the most compelling cases." Goodies Olde Fashion Fudge Co. v. Kuiros, 408 Pa. Super. 495, 501, 597 A.2d 141, 144 (1991). The court may grant the injunction only if the moving party has sufficiently established the following elements: (1) that relief is necessary to prevent immediate and irreparable harm that cannot be compensated by damages, (2) that greater injury will occur from refusing the injunction than by granting it, (3) that the injunction will restore the parties to the status quo as it existed immediately before the alleged wrongful conduct, (4) that the wrong is actionable and an injunction is reasonably suited to abate that wrong, and (5) that the plaintiffs right to relief is clear. School District of Wilkins burg v. Wilkinsburg Education Association, 542 Pa. 335, 337-38 nol, 667 A.2d 5, 6 n.2 (1995); New Castle Orthopedic Associates v. Burns, 481 Pa. 460, 464,392 A.2d 1383, 1385 (1978). These requisite elements "are cumulative, and if one element is lacking, relief may not be granted." Norristown Municipal Waste Authoritv v. West Norriton Township Municipal Authority, 705 A.2d 509,512 (Pa. Cmwlth. 1998). Plaintiff cannot establish the requisite elements for a preliminary injunction. 2. Plaintiff Cannot Establish Immediate and Irreparable Harm. The Superior Court of Pennsylvania has stated that: The purpose of a preliminary injunction is to preserve the status quo as it existed be fore the acts complained of, and 2 PHI 778377vl 11/23/05 thereby prevent irreparable injury or gross injustice. Slott v. Plastic Fabricators Inc., 402 Pa. 433,167 A.2d 306 (1961). East Hills TV, 366 Pa. Super. at 460,515 A.2d at 509. On or about November 15,2005, Plaintiff requested that the Zoning Hearing Board grant a variance to operate a place of worship at the site. See Exhibi t D to Preliminary Objections. The filing of this application automatically stays the Township's authority to take any action against plaintiff. The only exception to the stay is when the Township makes application to a court of ZHB seeking a determination that the stay would cause imminent peril to life or property. 53 P.S. S 10915.I(a). Here, plaintiff are not being prevented from operating an Islamic school and spiritual center and conducting prayer services at the site. The Township is precluded from taking action against plaintiff. Accordingly, plaintiffs' Motion for Preliminary Injunction should be denied. 3. Plaintiffs' Complaint Is Barred By Their Failure To Exhaust Administrative Remedies Because plaintiff has failed to exercise or exhaust other remedies, Defendants' motion should be denied. Under Pennsylvania law, where a statutory remedy or method of procedure is provided, the directions of such statute must be strictl y followed and the remedies or procedures required are exclusive. Bartron v. Northampton County, 342 Pa. ] 63, 19 A.2d 263 (1941); Vogt v. Borough of Port Vue, 170 Pa. Super. 526, 85 A.2d 688 (1952). Where a remedy is provided by statute, the directions of the legislation must be strictly pursued and such remedy is exclusive. Luriv v. Republican Alliance, 412 Pa. 6J, J92 A.2d 367 (J 963). When an act creates a right or liability or imposes a duty and 3 PHI 7783 77v I 11/23/05 prescribes a particular remedy for its enforcement, such remedy is exclusive and must be strictly pursued, and one who fails to exhaust his statutory remedies may not thereafter raise an issue which could have or should have been raised in the proceeding afforded by his statutory remedy. City ofPhila. v. Sam Bobman Deo't Store Co., 189 Pa. Super. 72, 149 A.2d 518 (1959). Both at common law and under this statute, a statu tory remedy is exclusive and must be strictly pursued. Curran v. Delano, 235 Pa. 478, 84 A. 452 (1912); Harcourt v. General Accident Ins. Co., 419 Pa. Super. 155,615 A.2d 71 (1992), appeal denied, 534 Pa. 648, 627 A.2d 179. In particular, equity has no jurisdiction to inquire into a controversy where to do so would obviate a statutory procedure provided by the legislature for the resolution. Calabrese v. Collier Townshio Mun. Auth., 430 Pa. 289, 240 A.2d 544 (1968). The fact that a court of equity may be capable of achieving an expeditious resolution of a dispute does not warrant its intrusion where there is a statutory process for dispute resolution. Mercv Hoso. of Pittsburgh v. Pennsylvania Human Relations Comm'n., 499 Pa. 132,451 A.2d 1357 (1982). Plaintiff relies upon Frye v. Monongahela, 526 Pa. 170, 584 A.2d 946 (1991) for the proposition that the Court may exercise its equity jurisdiction even though relief is available from the ZHB. ~ is inapposite because the plaintiff, a neighboring landowner, could not get the equitable relief sought from the ZHB. In contrast, the ZHB can provide plaintiff with the full relief sought - approval to operate a place of worship. Plaintiff also relies upon Empire Sanitary Landfill. Inc. v. Commonwealth, 546 Pa. 315, 684 A.2d 1047 (1996). This case supports the Township. The Pennsylvania Supreme Court held that there was a failure to exhaust administrative remedies. Emoire, 4 PHI 778377vl 11/23/05 546 Pa. at 329, 684 A.2d 1054-1054. Since the equitable relief sought from the Court is identical to the relief sought from the ZHB, the failure to exhaust administrative remedies dooms plaintiffs request for injunctive relief. III. CONCLUSION For all of the foregoing reasons, North Middleton Township respectfully requests that this Honorable Court enter the proposed form of Order denying plaintiffs motion for a preliminary or special injunction. , Stev n . Ludwig, E , Attorney LD. # 40417 Fox Rothschild LLP 2000 Market Street, Tenth Floor Philadelphia, PA 19103-3291 (215) 299-2164 (215) 299-2150 Counsel for Defendant North Middleton Township Dated: November 23, 2005 5 PHI 778377vl 11/23/05 . CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing pleading was served on counsel of record, via hand delivery, on the 23rd day of November, 2005, addressed as follows: Carl C. Risch, Esquire Mattson Deardorff Williams & Otto Ten East High Street Carlisle, P A 17013 Counsel for Plaintiff , I ^ Slqf I Dated: November 23, 2005 .) PHI 778377vl 11/23105 10/21/2005 17:07 7172581598 MICHAELWILLIAMS PAGE 02 NORTH IDDLETO OWNS HI NORTH MIDDLETON TOWNSHIP 2051 Spring Road, Carlisle, PA 17013-1059 OFFICE (717) 243-8550 . FAX (717) 243-1135 . POUGE (717) 243-7910 October 20, 2005 VIA CERTIFIED MAIL NO. 70042510000312438066 Micl1ae1 Williams 1725 Douglas Drive ClIrlislePA 17013 The Peaco Center Attn: Michael Williams 505 Cavahy ~""" Catlis1ePA 17013 RE: Enforcement Notice Ordinance VioWion Dear Mr. Williams' Yon are the autborized representative for the The Peace Center, owner of reIll estate located in North Middleton Township (hereinafter the "Township"), sar:ne being 1cn0Wll and numbered as The Peace center located at 505 Cavalry Road. The Tax Parcel Nutnber of this reIll estate is 29-18-1367-021. The Township is ofilie bclieftbat, afler reasonable investigation. The Peace Center is in violation of the Township zoning Ordinance. TIlis violation e:cists and is maintained on the above referenced real property for which you are rellpoosible. The nature of the violation is as follows: in a Camp\!s fndustrialZone (I-I) a place ofworslllp is not allowed. You were previously notified oftbis violation on May 11,2005. As such, these activities are in violation of the Code of the Township of North Middletoo, Chapter 204 (Zoning Ordinance), Section 21. This chapter i. known and cited as the "North Middleton Township Zoning OrdiIumce." Specifically, these activities lite in violation of Zoning Ordinance Section 204-21 (B) (pmnitted Uses in the Campus Industrial Zone). We are folWatding a copy of Zoning Ordinnri"" Section 204-21. A full and complete copy of this Ordinance is available upon requeSt. You are advised, being the represenllltive of The Peace Cellter, that the above activity must be abated within thirty (30) days of receipt of this Notice. Failure to comply with the foregoinll or to tile an Application with the North Middleton TO"MlShip Zoning Hearing Board will result in the Township taking further action to ensure that the provisions of the Zoning Ordinance ate tuet. PETITIONER'S EXHIBIT i\I~3IoS l---F"H , 18/21/2005 17:07 7J 72581698 MICHi\ELWILLIi\MS PAGE 03 Should YOlL elect to llle lU1 Application with the Zoning Healing Board, said application must be liled within tbirty (30) days of the date of lhis notice. Failuxe to comply within the tbirty (30) day period, unless Clttended by the Zoning Hearing Board, may result in legal action by the Township. Please be advised that any person, partnership or cmporation woo shall violate ally provision of the North MiddletOl;l Township Zoning Ordinance, as cited above, shall be lial>le, in a civil enforcetUCllt proceeding, colllll1enced by the Township, to pay a judgment of not more than $SOO.oo, plus aU court costs, reasonable attorneys' fees inourred by the Township. No judgmenlshall ~ce or be imposed, levied or bo payable until the date of the detmnination of a violation by the District Justice. If the defendant neither pays nor timely appeals the jmlg>"ent, the Township may enforce the judgment pursuant to the applicable rule$ of clvil procedure_ Each day continuance of a violarlOl;l of the provisiOllS of the North Middleton Township ZOlIing 0tdinaA0e. shall constitute a se~ violation, uuleSll the District Justice ~ that there has been a violation further determines that there Wll5 a good faith basis for the person, partnership or corpotution violating the ~ce to l:utve believed that there was no 8llCh violation, in which event there shall be deemed only one such violation until the fiflb day foUowmg the date of detmninatioo of a violation by the District Justice, and thereafter, each day that a violation coutinI1es sball coostilUle a separate violation. AU .Jud8xnents, co$!$, and reasonable attorney fees collected for the violation ofilie Zoning OI"diuance shall be paid over to the Township. If you have. any questiOllS regarding this Notice of the directiv<:s of North Mlddleron TOwnship for corrective actions, pI_ feel free to contact the Norlh Middletoo Township Muuicipul Office, 2051 Spring Road, Carlisle, PA 17013 or telephone (717) 243-8550. It ~ the desire of Norlh Middleton Township to work with yon amicably and IlllLSOnably resolve this matter as quickly as possible. Accordingly. your cooperation is appreciated. - Sincerely, -=e~ ~\~ North Middleton Township Codes Enfurcement Officer Enclosure Co: Board of Supervisorn James D. Bogar, Solicitor , 1~!21!2005 17:07 7172581698 MICHAELWILLIAMS PAGE 04 H. Off-street parking. Off-street parking shall be provided as specified in ~ 204-36 of this chapter. I. signs. Signs sh,lIl be permitted as specified in S 204-39 of Ihis chapter. J. Access drive requirements. All access drives shall be in accordance wilh !} 204-35 of this chapter. K. Screening. Screening must be provided along any adjoining land$ within a residential zone, regardless of Whether or not the residentially zoned parcel is developed. (See S 204-38 of this chapter.) L Landscaping. Any portion of the site not used .for buildings, structures, parking compounds, loading areas, outdoor storage areas and sidewalks shall be maintained with a vegetative Qround cover and other ornamental plantings. (S!l8 !i 204-38 of this chapter.) M. Outdoor storage and display. Within this zone, outdoor storage Is permitted, provided all outdoor storage areas are .screened from any abulting residential zone and the outdoor storage areas comply with the setbacks imposed within this sec1ion. Outdoor display areas need not be screened from adjoining roads, It they are located within the front yard. Section 204-48 of this chapter also lists other outdoor storage and display requirements. N. Waste products. oumpsters used for domestic garbage may be permitted wtthln the side or rear yard, provided such dumpsters aJ'$ screened from any adjoining roads or properties. All dumpsters shall be set back a mInimum. of 50 feel from any adjoining residentially zoned properties. All waste receptacles Shall be completely enclosed. O. Commercial operations standards. All industrial operations shall be in compliance with any Commonwealth of Pennsylvania andlor federal government regulations, as required by the most recent regulations made available from these governmental bodies. P. All uses shall comply with the applicable general provisions contained within Article III or this chapter. 9 204-21. Campus Industrial Zone (/-1). A. Purpose. The purpose of the Campus Industrial Zone is to proVide for limited business activities within a campus-like setting. The types of use permitted within this zone are meant to promote an attractive and self-contained employment activity center. Strict design and iandscaping requirements have been Imposed to assure an attractiVe appearance from within the zone, as wall 8e from adjoining roads. Finally, significant buffering techniques are used to protect adjoining residential areas. B. Permitled uses. (1) Agriculture. subject to the standards lisled in!} 204-14 of this chapter. (2) Banks and other financiai institutions. 10/21/2005 17:07 71 72581698 MICHAELWILLIAMS PAGE 05 (3) Business, professional and ftnancial offices. (4) Health and fitness clubs. (5) Laboratories for medical, scientific or industrial research and development. (6) Manufacturing and packaging of the following: (a) Scientific. specialized and technical instruments and equipment. (b) Hardware and software for audio-video components, computers, vending machines, <i>lectronlc equipment and video games. . (c) Finished textile products. (d) Brushes, brooms and combs. (e) Jewelry and other precious metals. (l) Photographic. lighting and timekeeping equipment. (g) Small household appllllnc"", excluding major appliances. (h) Musical instruments and sporting equipment. (I) Cosmetics, toiletries and pharmaceuticals. 0) Optical, dental and medical supplies and equipment. (k) Small or novelty products /rom prepared materials (excluding the use of sheet metals). (7) Medical, dental or veterinary offices and clinics. (8) Photocopying, bookbinding, printing and publishing operations. (9) Retail sale of office supplies, office furniture. art and drafting equipment and computers. (10) Public, private, commercial and/or vocational and mechanical trade schOOl... (11) Public uses and playgrounds, sUbjecllo the applicable design smndards listed in ~ 204-14F of this chapter. (12) Accessory uses customarily incidental to the above permitted uses. C. Special exception uses (subject to the review procedures listed in ~ 204-125C of lhis chapter). (1) Commercial day-care facilities (see 11 204-64). 1~/21!2005 17:07 7172581598 MICHAELWILUAMS PAGE 06 (2) Hotels. molels and related uses (see 9 204-85). D. Conditional uses (subject to the review procedures listed ill !l 204-134 of this. chapter). (1) .Convention centers (see!} 204,69). (2) Hospitals and related uses (see 9204-84). E. Lot design requirements. Unless otherwise specified, all uses shall comply w/tl1 the lot design requirements contained within the following table: Maximum Lot Minimum Lot AI''''' Minimum LolWidlh Covurage 2 acres 200 n. 70% Maximum Permitted Height 35ft. ' NOTES: 1 The maximum permitted height may be extended up to 60 feet, if adequate fire protection is aS$ured to all floors of the building and the building is set back a horizontal distance at least equal to its height from each property line. Prior to approval of building height exceeding 35 feet, the <Jpplicant must subrnU a letter from the Fire Chief of the company with primary service area responsibility for the site, attesting to adequate fire protection. F. Minimum required setbacks. Unless otherwise specified, all uses shall comply with the setbacks contained within the following table. Editor's Note: rable 8 is included at tl1e end 01 thi$ eMpter. G. Off.street loading. Off-street loading shall be provided as specified In 9 204-37 of this chapter. In addition, no off-street loading area shall be permitted on any side of a building facing adjoining lands with a residenllal zone unless approprlately screened as provided here In at !l 204-38. H. Off-street parl<ing. Oft-street parking shall be provided as specifled in !l204.36- of this chapter. I. Signs. Signs shall be permitted as specified in ~ 204-39 of this chapter. J. Access drive requirements. All access drives shall be in accordance with 9 2Q4..35 of this chapter. K. Screening. Screening must be provided along any adjoining lands within a residential zone. regardless of whether or '101 the residentially zoned parcei Is developed. (See !l 204-38 of this chapter.) L. Landscaping. Any portion of the Site not used for buildings, structures. parking compounds, loading areas, outdoor storage areas and sidewalks shall be maintained with a vegetative ground cOYer and other ornamental plantings. (See 9204-38 of this chapter.) 1~/21/2005 17: 07 7172581598 MICHAELWILUAMS PAGE 07 M. Outdoor storage and display. Within this zone, no outdoor storage nor display shall be permitted. N. Waste products. Dumpsters used for domestic garbage may be permitted within the side or rear yard, provided. such dumpsters are screened from any adjoining roads or properties. All dumpsters. shall be set back a minimum of 50 feet from any adjoining residentially zoned properties. All waste receptacles shall be completely enclosed. Q. Commercial operations standards. All industrial operations shall be in compliance with any. Commonwealth of Pennsylvania andlor federal govemment regulations, as required by the most recent regulations made available from these governmental bodies. P. All usas shall comply with the applicable general provisions containad within Article III of this chapter. ~ 204-22. Industrial Zone (1-2). A. Purpose. This zone provides for a wide rang!> of industrial acbvities that contribute to the weR-being of the township by diversifying its eConomy and providing valuable employment opportunities. The required 101 sizes have been kept small to accommodate the start-up Industlies that are likely to emerge; however, larger and heavier industries have also been permitted. This zone provides for light industrial UIleS a5 permitted' by right, but requires acquisition of a conditional use for heavier and potentially more- objectionable types of industrial uses. These areas have been located near existing public uUlity service areas and along major roacJs. Design standerds have been Imposed to create attractive site designs and moderate the objectionable Impact9 associated with industrial uses. Substantial setbacks are used to protect adjoining residences. B. Permitted uses. (1) Agricultural support businesses, InclUding: (a) Facilities for the commercial processing and warehousing of agricultural products. (b) Facilities (or the ware/'lousinQ. sales and service of agriou~ural equipment, vehicles, feed or supplies. (cJ Commercial stOCkyards or feedlots. (d) Veterinary offlces, animal hospitals or kennels. (2) Agricuiture, excluding commercial mushroom operations, subject to the standards listed In ~ 204-14 of this chapter. (3) Laboratories for medioal, scientific or industrial research and development. (4) Machine shop. (5) Manufacturing, packaging, storage and/orwholesaling of the following: .. " ~ .. " ;; " ",-" ,,'- ","" ~ -et") ","'" ,~q 1/1 ~'C~~ _...~O elOO~ ..'" . ~~q~. (GGlGnt'- ::E<'C'llCl N ~ U; " -0 E '" &. E .. (,} -0 " c R. /\ ~ " 'c " z. ;:;- c " " "" '0-0" -,,"'" ~o'" ~ttg 4)~' t1I ~_cr64) ~ ~'~ ~ E.~~dl Eocrql!'l;, oocno 0~t"4"Cl:' ~ ~ ~ OJ " " -0 .;;; ~ " " " '" " " '" -0 " " R. Fox Rothsch i i d LLP Fax:2152992150 Nov 22 2005 15:22 P.01 FOX + ROTH S CHI L D L L P ATTORNEYS AT LAW .. 2000 MARKET STREET, TENTH FLOOR PHILADELPHIA, PA 19103-3291 VOICE.. (215)299-2000 FAX (215) 299-2150 DATE: NOVEMBER 22, 2005 FACSIMILE TRANSMITTAL SHEEt TO: COMPANY: 'The Honorable K:evitI A. Hess CC!?/Cumberland County FAX NUMBER: 717-24D-6462 ... PHONE NUMBERo 717-240.-6200 FROM: Steven K I..udwig PHONE NUMBER:EMAIL: (215) 299-2164 sludwig@foxtothschild.cOtn BILLING NUMBER, 474 NUMBER OF PAGES: L( CHARGE FILE #: PRIORITY, 27275-00001 REGULAR LOG NUMBF.] R: .. ~k> IF YOU DO NOT RECEIVE ALL OF THE PAGES, PLEASE CALL (215) 299-2790 AS SOON AS POSSIBLE. ORIGINAL DOCUMENT WILL FOLLOW BY MAIL o URGENT 0 FOR REVIEW 0 PLEASE COMMENT 0 PLEASE REPLY o FOR YOiJR INPORMATION NOTES/COMMENTS.. IRS CIRCULiIR 230 DISCLOSUllE PlJR.'>1J4Nf ro TRBASWY REGULAUONS, ANY rAX ADVICE CONrAINED 11'1 TI-1IS COMMUNICATION (!Ncr,.uP!NG &NY ATIAClWENi:S) 1S Nor INTENDED OR:wRITIE1>: TO BE USED, AND CANNOT BE USED OR RELIED lm)NIJYYOU Ol\ANY OTHER:PER.SON, FOR n-lE PURPOSE OF(iJ AVOIDING PENALTIES UNDER TIlE IN'IERNALFEVEc"UE CpDli, OR (ti) PROMOTING, MARKB'I1NG ORl\ECOMMENDING 'IQ ANOTHER PARTY ANYTAX ADVICE ADDRESSED 1lERElN. . Ttlf lNFORMA nON CONTAINED IN TlflS F ACSIMlLE M~SSJ\GE IS I'RlVILEGED AND CONFIDENTIAL INFOlIMjI; .ION IN1:ENDJiD ONLY FOR TH:t USE OF TIlE INDIVIDUAL OR ENTITY NAMED ABOVE. IF TIlE READER OF TIllS MESSAGE IS NOT TIlE INTENDED RECIPIENT. YOU ARE HBI\EBY NOTIFiED TIlA.T Am' DISSEMINATION, DISTRlBUTlON OR COPYING Of nus COMMONlCli.nrM IS STRlCTJ. Y noHllll1~. IF .You w. V:E RECElVED THIS COMMUNlCATION IN ERROR. PLEASE lMMEPIA TliLY }10TlFYJJ~B.Y TELEPHONE AND llE"iUIU'l TIlE ORlGINALMJiS$AGE TO US AT THE ABOVE ADDRESS VIA TIlE U.S. POSTAL SERVICE TIlANJ< mu.' Fox Rothsch i i d LLP Fax:2152992150 Nov 22 2005 15:23 P. 02 FOX · ROTHSCHILn.. ATTORNEYS AT LAW 2000 MARx..ET STREET . TENTH FLOOR ~ PHILADELPHIA, PA 19103-3291 215.299.2'000 . FAX 215..299.2150 . .......-ww.foxrothschild.com Steven lC. Ludwig Direct Dial, (215) 299-2164 Internet Mdress: sludwig@foxrothschiId.com November 22, 2005 VIA FACSIMILE The Honorable Kevin A. Hess Cumberland County Court of Common Pleas I Courthouse Square Carlisle, PA 17013 Re: The Peace Centre v. The Township of North Middleton Court of Common Pleas of Cumberland County Civil Action No. 05-5831 Dear Judge Hess: Enclosed.is a courtesy copy of an Entry of Appearance which I will be filing tomorrow with the Prothonotary of the Court of Common Pleas of Cumberland County. Res ctfully, S_KLiJ!~ SKL:yyp Enclosure cc: Jennifer B. Hipp, Esquire (via e-mail w/encl.) Carl C. Risch, Esquire (via e-mail w/encl.) P.Ji.M'IlSYLV.ANlA . NEW JERSEY . OELAWMU . NEw YORK . FLOR.IDA fox Rothsch i i cl LLP fax: 2152992150 Nov 22 2005 15:23 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA 1lIE PEACE CENTRE, " Plaintiff, v. THE TOWNSHIP OF NORTH MIDDLETON, Defenda:ut. . To.the Prothoaotary: CIVIL ACTION No.: 05-5831 ENTRY OF APPEARANCE P.03 Kindly enter my appearance on behalf of Defend8l1t The Township of North Middleton in this matter. Dated: November 23,2005 t ven K. Ludwig, Esquire AttorneyI.D. #40417 Fox Rothschild, LLP 2000 Market Street, Tenth Floor Philadelphia, PA 19103-3291 (215) 299-2164 (215) 299-2150 Counsel for Defendant Fox Rothsch i i d LL? Fax:2152992150 Nov 22 2005 15:23 ?04 CERTIFICATE OF SERVICE I hereby certify tlwt a true and correct copy of the foregoing entry of appearance was se.r.v~d on cquns,,! of record, via hand delivery on the 23rd day of November, 200~ addressed as follows: Carl C. Risch, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 Counsel for Plaintiff bl/k / :~ Dated: November 23, 2005 NOV-23-05 WED 08:54 AM JAMES D BOGAR FAX NO, 717 737 2086 p, 01/03 ,JMII';S D. BOGAl< XfTOnNEY AT LAW ON)'; WI';ST MAIN STHEET ~mlnEMANSTOWN, l'J';NNSn,vAN1A 17011 ('.~m::\ll H\;ll\@hbt\l)tlaw.(:om Tr::I,I::(lllONJ]~ ('l) 71 '/~'1'87" I vAf;.!-;!MH,t<: ('71'1) 7:J'I,~06(; ,l/\Mf:;;'; p, llflOAI' .nwNll"\W p. 1111'1'. "\~:"I".("$\!\,\\,,Nt'\>J,J".Wl'l:.I\' \ '\f\'~'.\ r 1'l\'~ II j\ lIT') ""-$; 'i,'.' ll~(1\V r.o, \' l November 23, 2005 ViA I<'AC81'NH.E mn,'{ (J,dO-6iJ62) 't'hr; nt.)no-ran)o "Kovin A. HQ,HS COl)t"t of COTi','rrV)l:1. Plf;[1;, of C~n'ni')(~rJz.1nd County J. COil r. LhoLH,C: S(lUa)~'C! CI.'iY'1:i.r.:le, PJ\ J.'I013 Ho: 'llhG ~f.,~acc Con tI.'C v. North Middleton 'l'ownship Docket No. 05-5831 P("n r;' ,J11019C Jje'DG: Ploasu bo i:lchri:JUCJ that StCV(~I\ K. LUllwiU, 1i:squiro, will bn J;(:,pr:m;onUno NOl:I;h Mickl1.el~on 'l'own811';'p in the above-captioned maLLet'. W(-;l ~:!r{:J enGloni.l\~1 a copy of our Prnecipe to Wi thdraw Appearanc~e for youc ;t-f,2.cox-ch'l. Pl eaDO conU,Cl us .if we are able t.o provide you witl. nrklitionnl ,inf()):'rl".,tiClJ1. Ve.ry truly S,\Q,Yill ,}.Q.A. ej- V Y01U'S, kl )() . I..JJ..{- \;t<-cf 6 ,l'ENNXFEJ{ 13. lII!'P, Solicitor North Middloton 'l'owIlship ;ml(lllh1 "\H;lo:';lu-e CG: N01.'l.h Mi.<]t1l0l:0n 'l'ownshi.p, Attn: BOilrd of Supervisor13 and Dd'Xn'dl'i A. F:i:\lor' , l1anagor (w! onclo1Jm'o) (via facsirnilo ' 2<13-113', ) SLevon '~~. 1,\.dlwiO / ESJtJ,uLro {w/()nclo.sur(~ l (vio' L,c8ill1.ile ... 215'29~..21501 em:'J c, IHlJctl, f:.~;quix'", (w/,mclo(oure) (via facsimile ... 243,..Ul50J MARTSON DEARDORFF WILLIAMS & OTTO MDW&'O INFORMATION. ADVICE. ADVOCACY ATTORNEYS & COUNSELLORS AT LAW TELEPHONE FACSIMILE I'NTERNEl (717) 243-3341 (717) 243- J 850 www.mdwo.com WILLIAM F. MARTSON JOHN B. FOWLER III DANIEL K. DEARDORFF THOMAS 1. WILLlAMS* [Vo V. OTTO lJj GEORGE B. fALLER JR.* *[lOARD CERTIFIED CIVIL TRIAL Sl'f'CIALfSi CARL C. RJSCH DAVID A. FITZSIMONS CHRISTOPH.ER E. RJCE JENNIFER L. SPEARS HILtARY A. DEAN to EAST HIGH STREET CARLISLE, PENNSYLVANIA 17013 November 28, 2005 The Honorable Kevin Hess Cumberland County Court of Common Pleas 1 Courthouse Square Carlisle, P A 17013 RE: The Peace Centre v. North Middleton Township, No. 05-5831; Our File No. 11754.1 Dear Judge Hess: As discussed at the hearing on Wednesday, November 23,2005, you requested that we prepare a Memorandum of Law regarding this Court's authority to enjoin North Middleton Township from prohibiting the Peace Centre from using its facility as a "place of worship" even though there is an appeal pending before the Zoning Hearing Board of North Middleton Townhip. Given that our Memorandum of Law submitted on Tuesday, November 22, 2005, provides authority for the proposition that a Court may entertain equity actions against municipalities when administrative remedies are inadequate to remedy the alleged wrong, we are sending this letter in lieu of a second Memorandum of Law. We also provided authority in our Amended Motion for Special Injunction explaining that, under the Religious Land Use and Institutionalized Persons Act, the sending of a cease and desist letter by a municipality can constitute irreparable harm that is ripe to enjoin even in the absence of any enforcement by the municipality. The Peace Centre recognizes that the Township has agreed not to enforce its cease and desist letter until after the Peace Centre has exhausted its appeals under the Municipalities Planning Code. This position, however, does not change the fact that an illegal infringement, even a minimal infringement, on the Peace Centre's freedom of religious assembly constitutes irreparable harm. We respectfully requestthat this Court (1) recognize thatthe Township's position is absolutely unsupportable under both the Pennsylvania Religious Freedom Protection Act and the federal Religious Land Use and Institutionalized Persons Act: and (2) that behavior inconsistent with these laws is so fundamentally inconsistent with our laws, traditions, and rights as Pennsylvanians that the judiciary should not tolerate such behavior for even a minimal period of time. Exhaustion of administrative remedies is not an absolute doctrine, and this Court is free to use its discretion to enjoin behavior that inflicts irreparable harm. Very truly yours, cc: Steven Ludwig, Esquire F\FILES\DAT AFlLEIGeneraIICurrentI11754.1.kh 1 INFORMATION ADVICE. ADVOCACY SM F:\FILES\DATAFlLE\General\Current\117.S4.1.Firat AnEnded Complaint THE PEACE CENTRE, Plaintiff :IN THE COURT OF COMMON PLEASDF :'.~ ~,~ :CUMBERLAND COUNTY, PENNSYL V ANJA-; r-:' :CNIL ACTION ,,~ G.:. ,") .', v. :NO. 05-5831 C-) c; :':::"1 .< THE TOWNSHIP OF NORTH MIDDLETON, Defendant ,-, NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. TIDS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, TIDS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGffiLE PERSONS AT A REDUCE FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717)232-7536 MmRFFWILLIAMS & OTTO By: Carl C. . sch, Esquire J.D. No. 75901 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff Date: November 22, 2005 THE PEACE CENTRE, Plaintiff :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :CIVIL ACTION v. :NO. 05-5831 THE TOWNSHIP OF NORTH MIDDLETON, Defendant FIRST AMENDED COMPLAINT AND NOW, comes the Plaintiff, THE PEACE CENTRE, by and through its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and avers as follows: 1. Plaintiff is a non-profit, non-stock Pennsylvania corporation with an address of 505 Cavalry Road, North Middleton Township, Carlisle, Cumberland County, Pennsylvania 17013. 2. Plaintiff is a religious institution which qualifies for exemption from taxation under Section 501 (c)(3) of the Internal Revenue Code of 1996. 3. Defendant is a municipal corporation with an address of 2051 Spring Road, North Middleton Township, Carlisle, Cumberland County, Pennsylvania 17013. 4. Plaintiff is the owner of 505 Cavalry Road, North Middleton Township, at which Plaintiff operates an Islamic school and spiritual center. Plaintiff also offers prayer services, including Friday prayer services, to Muslims at the Peace Centre. 5. On October 20,2005, the Defendant, by and through its zoning officer, sent a letter to the Plaintiff directing it to cease using the facility located at 505 Cavalry Road as a "place of worship." A copy of this letter with attachments is attached hereto as Exhibit "A." 6. Defendant contends that, since "places of worship" are not permitted in the Industrial, or I-I, zone, Plaintiff is in violation of the Township's zoning ordinance by holding prayer services at the Peace Centre. 7. Defendant's letter acts as a "governmental action intended to interfere with religious exercise" which has the "effect of substantially burdening the free exercise of religion" as defined by the Pennsylvania Religious Freedom Protection Act, 71 P.S. 1111 2402 and 2403. 8. Defendant's letter imposes or implements a land use regulation in a manner that imposes a substantial burden on the religious exercise of Plaintiff and its members as prohibited by the federal Religious Land Use and Institutionalized Persons Act, 42 U.S.C. 11 2000cc. 9. Defendant's letter represents the implementation of a land use regulation or system of land use regulations under which the Defendant makes, or has in place formal or informal procedures or practices that permit the Defendant to make, individualized assessments of the proposed uses for the property involved. 10. Defendant's prohibition on religious assembly and worship in the Township's Industrial (I-I) zone treats religious assembly on less than equal terms with nonreligious assembly in violation of the federal Religious Land Use and Institutionalized Persons Act, 42 U.S.C. 11 2000cc. 11. Defendant's prohibition on religious assembly and worship in the Township's industrial (I-I) zone unreasonably limits religious assembly and/or institutions in violation of the federal Religious Land Use and Institutionalized Persons Act, 42 U.S.C. g 2000cc. 12. Defendant's prohibition on religious assembly violates Plaintiffs rights under the First, Fifth, and Fourteenth Amendment to the Constitution of the United States and is a violation of Plaintiff's right to free exercise of religion and its rights to due process and equal protection. 13. Section 4 of the Pennsylvania Religious Freedom Protection Act, 71 P.S. 92404(a), prohibits North Middleton Township from substantially burdening Plaintiffs, and Plaintiffs member's, free exercise of religion. 14. Defendant's actions are not justified as furthering a compelling state interest and, if so, are not the least restrictive means of furthering a compelling state interest. IS. Once Plaintiff proves by clear and convincing evidence that Defendant's acts have the effect of substantially burdening the free exercise of religion, Defendant has the burden of proving by the preponderance of the evidence that its acts further a compelling state interest in the least restrictive means possible. 71 P.S. 92405(1) and 9 2404(b); see also 42 U.S.C. 92000cc-2. 16. Plaintiff is asserting a claim against Defendant under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 9 2000cc-2, and this Court has concurrent jurisdiction to hear this claim under 9 2000cc-2. Plaintiff also asserts a claim in this Court's concurrent jurisdiction under 42 U.S.C. 9 1983, and demands attorneys fees and costs under 42 U.S.C. 9 1988, since Defendant's actions violate federal law (RLUIP A) and Plaintiffs rights under the First, Fifth, and Fourteenth Amendments to the Constitution of the United States. 17. This Court has jurisdiction to hear this case under 71 P.S. 9 2405(e) as an action against a non-Commonwealth agency as well as under 71 P.S. 9 2405(a) and 9 2406(a). 18. Because North Middleton Township's exerciseofgovemmental authority imminently threatens to substantially burden Plaintiffs, and its member's, free exercise of religion, Plaintiff is relieved of its obligation to provide thirty (30) days notice ofthis action under 71 P.S. 92405(c). 19. North Middleton Township has directed Plaintiff to cease holding religious services at 505 Cavalry Road and has threatened legal action against the Plaintiff if fails to obey. This action has had a "chilling effect" on Islamic worship at the Peace Centre and is presently, and substantially, interfering with religious exercise at the Peace Centre in violation of the laws ofthe Commonwealth and ofthe United States. 20. Plaintiff avers that Defendant's exercise of governmental authority in this case is so outrageous and constitutes such a fundamental rejection of the laws of this Commonwealth that it has risen to the level of "obdurate" and "vexatious" under 71 P.S. S 2405(f), and therefore justifies the award of attorneys fees and costs. 21. Plaintiff is entitled to injunctive and declaratory relief under 71 P.S. S 2405(f) ifit proves a substantial burden on the free exercise of religion. Plaintiff is also entitled to injunctive relief, declaratory relief, money damages, and attorneys fees under 42 U.S.C. 2000cc, 42 U.S.C. S 1983, and 42 U.S.C. S 1988. WHEREFORE, this Court is requested to enjoin Defendant from prohibiting the use of 505 Calvary Road, North Middleton Township, as a "place of worship" under 71 P.S. S 2405(f), and for injunctive relief, declaratory relief, money damages, and attorneys fees under 42 U.S.C. 2000cc, 42 U.S.c. S 1983, and 42 U.S.C. S 1988. Respectfully submitted, MARTS ON DEARDORFF WILLIAMS & OTTO By mn 0 Carl C. Risch, Esquire I.D. No. 75901 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff Date: November 22, 2005 IB(21(2005 17:07 7172581G98 MICHAELWILLlAMS PAGE 02 NORTH IDDLETO OWNSHI NORTH MIDDLETON TOWNSHIP 2051 Spring Road, Carlisle, PA 17013-1059 OFFICE (717) 243-8550 . FAX (717) 243-1135 . POUCE (717) 243-7910 October 20, 2005 VIA CERTIFIEDMAJLNO- 70042)10 0003 1243 8066 Michael Williams 1725 Douglas Drive Carlisle FA 17013 The PelICe Center Attn: Michael Wllli81l1$ 50S Cavahy Road carlislePA 17013 RE: Enforcemeot Notice OrdinAnce Violstion Dear Mr. Willi801S: You arc the authorized tepresc:ntalive for the The Peace Center. 0_ of real estate located in North Middleton Township (hereinafter the "Township"), same being known and numbered as The Peace Ce.oter located at 50S Cavaky Road- The Tlllt Parcel NUll1ber oftbis real e~ is 29-18-1367-021- The Township is of the belief'that, after reasonabk investigatioo. The Peace CeIltet is in violation of the Township Zoning (),rl;n....",. This violatioo exists and is maintained on the above referenced real pl<>y.aty fur which you an: respoosible. Tho Datm'e of the violldion is as follows; in a Campus Industrial Zone (I-I) a place of wonbip is not aI1owcd. You were previously notified of this violation on May II, 2005_ As such, dlese activities 8{B in vio1ation of the Code of the Township of North Middletoo, ~ 204 (Zoning Ordinance), Section 21- This chapter is known aod cited as the "North Middleton Township Zoning OrdiIwice." Specifica1ly, these activities ll{C in violation of Zoning Ordimmce Section 204-21(B) (penni.tted Uses in the Campus IndustrW 2MB). We are forn'lll'ding a copy of Zoning QrdinaQce Section 204-21. A full and complete copy of this Orrlin",r.e is available upon request. Yon are advised. being the represenlDtive of lbe Peace Center, that the above activity must be abated within thirty (30) days of receipt of this Notice. Failute to comply with the foregoing or to file an Application with the North MiddletOll Township Zoning Hearing B08l'd will result in the ToWllBhip taking further action to ensure that the provisioos of the Zoning Ordinance are met. 10/21/2005 17:07 7172581598 MICHAELWILLIAMS PAGE 03 Should you elect to me IlIl Application with the Zoning Hearing nOlll'd, said application must be filed witbin thirty (30) days of the date of this notice. Failwe to comply within the thirty (30) day period, unless extended by the ZOning Hearing Board, may reBllll in legal action by the Township. Please be advised that any persoo, partnership or corporation wilD shall violate any provision of the North Middleton Township Zoning Ordinance, as cited above, shall be liable, in a civil enforcemenl proceeding, commenced by the Township, to pay a judgu1ell.t of not more than $500.00, plus all court costs, reasonable attorneys' fees incurred by the Township. No judgmeot shall ~ce or be imposed, levied or be payable wrti1 the date of the determination of a violation by the District Justice. If the defendant neither pays nor timely appeab the judgrneut, the Township may enfoxce lhe judgment pursuant to the applicable rules of civil prO<;edure. Each day continuance of a vio1arion of the provisions of the North Middlclon ToWl1ship ZOlling ~ shall constitute a seplIIlIkI vjolatiOll, Ulll_ lhe District J1IStice detmnilIing that there has been a violation further deteJlJ.lines lhat there was a good fiIith basis for the person, partnership or corporation vioIaling die ordinstIce to lmve beli~ed that there was no SIldl violatiOll, in which event there shall be tleeol1l"! only ooe such viobltion uutil the fitlh day foUowiDg lhe date of dettmlimIlion of a violation by the District Justice, 8Ild thereafter, eadt day that a violation continues shall consti1nte a separate violation. AU j"~ts, costs, and reasonable attorney fees collected for the violation of !he Zoning Ol'dinlmcc shall be paid over to Ib.e TOWlIBbip. If you have any questions Ie@IIl'ding this Notice of the dil'cctives of North MiddlctoIl TOWllBbip fur oorrective actions, please feel :tree to contact the North Middleton TOWIlSbip Municipal Office, 2051 Spring Road, Carlisle, PA 17013 or telephone (717) 243-8550. It is die desire of North Mldd1cto1l Towns.bip to work willl yon amicably and ftl88OJI8bly resolve this mat1el' as quickly a& possible. Accordingly, your cooperation is ~. Sincerely, -=t:~ ~ \~<r North Middleton Township Codes Enforcement Officer Enclosure Co: Board of Supervisors James D. Bogar, Solicitor 10/21/2005 17:07 71 72581698 MICHAELWILLIAMS PAGE 04 H. Off-street parking. Off-street parking shall be provided as specified in !i 204-36 of this chapter. I. Signs. Signs shall be permitted as specified In !i 204-39 of this chapter. J. Access drive requirements, All access drives shall be in accordance with !i 204-35 of this chapter. K. Screening. Screening must be provided along any adjoining lands within a residential zone, regardless of whether or not the residentially zoned parcel is developed. (See !i 204-38 of this chapter.) L. Landscaping. Any portion of the site not used for buildings, structures, parking compounds, loading areas, outdoor storage areas and sidewalks shall be maintained with a vegetative ground cover and other ornamental plantings. (See Ii 204-38 01 this chapter.) . M. Outdoor storage and display. Within this zone, outdoor storage is permitted, provided all outdoor storage areaS! al'$ sc....ned from any abutting residential zone and the outdoor storage areas comply with the setbacks imposed within this section. Outdoor display areas need not be screened from adjoining roads, if they are located within the front yard. Section 204--48 of this chapter also Iislll other outdoor storage and display requirements. N. Waste produclll. Dumpsters used for domestic garllage may be permitted wfthln the side or r&ar yard, provided such dumpsters are screened from any adjoining roads or properties. Ail dumpsters shall be set back a minimum of 50 feet from any adjoining residenUally zoned properties. AU waste receptacles shall b& completely enclosed. O. Commercial operations standards. All industrial operations shall be in compliance with any Commonwealth of Pannsylvania and/or federal government regulations, as required by the most recent regUlations made available from these governmental bodies. P. Ail uses shall comply with the applicable general provisions contained within Article III of this chapter. Ii 204-21. Campus Industrial Zone (I-i). A. Purpose. The purpose of the Campus Industrial Zone is to provide for limited business activities within a campus-like settIng. The types of use p&rmitted within this zone are meant to promote an attractive and self-contained employment activity center. Strict design and landscaping requirements have been imposecl to assure an attractive appearance from within the zone, as well as from adjoining roads. Finally, signi1icent buffering techniques are used to protect adjoining residential areas. B. Permitted uses. (1) Agriculture. subject to the standards listed in !i 204-14 of this chapter. (2) Banks and other financial institutions. 1~/21/2005 17:07 7172581598 MICHAELWILLIAMS PAGE 65 (3) Business, professional and financial offices. (4) Health and fitness clubs. (5) Labofiltories for medical, scientific or industrial researoh Elnd development. (6) Manufacturing and packaging of the following: (a) Scientific. specialized and 1echnical instruments and equipment. (b) Hardware and software for audio-video components, computers, vending machines, electronic equipment and video games. (c) Finished textile products. (d) Brushes, brooms and combs. (e) Jewelry and other precious metals. (f) Photographic, lighting and timekeeping equipment. (g) Small household appliances, excluding major appliances_ (h) Musical instruments and sporting equipment. (I) Cosmetics. toiletries and pharmaceuticals. OJ Optical, dental and mediCal supplies and equipment. (k) Small or novelty products from prepared materials (excluding the use of sheet metals). (7) Medical. dental or veterinary offices and cllnlcs_ (8) Photocopying, bookbinding, printing and publishing operations. (9) Retail sale of office supplies, office furniture, arl and drafting equipment and computers. (10) Public, private, commercial andlor vocational and mechanical trade schools. (11) Public uses and playgrounds, sUbject to the applicable deSign standards listed in ~ 204-14F ofthis chapter. (12) Accessory ~ses customarily incidental 10 the above permitted uses. C. Special exception uses (SUbject to tile review procedures listed in ~ 204-125C of this chapter). (1) Commercial day-care facilities (see 9 204-64). 1N21/2005 17: 07 7172581698 MICHAELWILLIAMS PAGE 06 (2) Holels. motels and related uses (see ~ 204-85). D. Conditional uses (subject to the review prOcedures listed in !3 204-134 of this chapter). (1) Convention canters (see !l204-69). (2) Hospitals and related uses (see !l204-84). E. Lot design requirements. Unless otherwise specified, all uses shall comply with the lot design requirements contained within the following table: 2 ac(es Meximum Lot Minimum Lot Width CCMlrag" 200 ft. 70% MlIXimum p..",ltted H"ight 3511. ' Minimum Lot Area NOTES: 1 The maximum permitted height may be extended up to 60 feet, if adequate fire protection is assured to all neors of the building and the bUilding is set back a horizontal distance at least equal to its height from each property fine. Prior to approval of building height exceeding 35 feet, the applicant must submit a letter from the Fins Chief of the company with primary service area responsibility for the site, attesting to adequate fire protection. F. Minimum required ..tbacks. Unle68 otherwise specified, all uses shall comply with the setbacks contained within the following table. EdiIot"s Note: Table 8 is included III the end 01 this chapter. G. Off-street loading. Off-street loading shall be provided as specified In ~ 204-37 of this chapter. In addition, no off-street loading area shall be permitted on any side of a building facing adjoining lands with a residential zone unless appropriately screened as provided here In at ~ 204-38. H. Off-street parking. OtI'-street parking shall be proVided 8$ specifJed in ~ 204-36 of this chapter. I. Signs. Signs shall be permitted as specified in !;2CJ4.39 of this chapter. J. ACcess drive requirements. All access drives shall be in accordance with ~ 204-35 of this chapter. K. Screening. Screening must be provided along any adjoining lands within a residential zone, regardless of Whether or not the residentially zoned parcel is developed. (See ~ 204-38 of thIs chapter.) L. Landscaping. Any portion of the site not used for buildings, structures, parking compounds, loading areas, outdoor storage areas and sidewalks shall be maintained with a vegetative ground cover and other omamental plantings. (S88 ~ 204-38 of this chapter.) 1P/21/2005 17:07 71 72581698 MICHAELWILLIAMS PAGE 07 M. Outdoor storage and display. Within this zone, no outdoor storage nor display shall be permitted. N. Waste products. oumpsters used for domestic garbage may be permitted within the side or rear yard, provided such dumpsters are screened from any adjoining roeds or properties. All dumpsters shall be set back a minimum of 50 feet from any adjoining residentially zoned properties. All waste receptacles shall be completely enclosed. O. Commercial operations standards. All industrial operations shall be in compliance with any Commonwealth of Pennsylv<lnia and/or federal govemment regulations, as required by the most recent regulations made available from these governmental bodies. P. All uses shall comply with the applicable general provisions contained within Article III of this chapter. t 204-22. Industrial Zone (1-2). A. Purpose. This zone provides for a wide range of industrial activitieS thai contribute to the well-being of the township by diversifying its economy and providing valu<lble employment opportunities. The required lot sizes have been kept small to accommodate the st<Jrt-up industries that are likely to emerge; however, larger and heavier industries have also been permitted. This zone provides for light industrial uses all permitted by right, but requires acquisition of a conditional use for heavier and potentially more- Objectionable types of industrial uses. These areas have been located near existing pUblic utility service areas and along major roads. Design standards have been imposed to crea1e attractive site designs and modera'- the objectionable Impact8 associated with industrial uses. Substantial setbacks are used to protect adjoining residences. B. Permitted uses. (1) Agricultural support businesses, including; (a) Facil"ies for the cornmercial processing and warehousing of agricultural products. (b) Facilities for the warehousing, sales and service of agricultural equipment, vehicles, feed or supplies. (c) Commercial stockyards or feedlots. (d) Veterinary offices, animal hospitals or kennels. (2) Agriculture, excluding commercial mushroom operations. subject to the standards listed in !i 204-14 of this chapter. (3) Laboratories for medioa/, scientifIC or industrial reeearch and development. (4) Machine shop. (5) Manufacturing, packaging, storage and/or whOlesaling of the following: NOV 22,2005 04:37P 11/22/2005 16:32 7172431656 8772262108 Mrx.JQ page 2 PAGE Bl/el THE PEACE CENTRE, Plaintiff v. :IN THE COURT OF COMMON PLEAS OF :CUMBEIU.AND COUNTY, PENNSYLV ANlA :CNIL ACTION 05 - 5'1>1 \ :NO. THE TOWNSHJP OF NORTH MIDDLETON. Defendant VERlF1:CAll0N 1, Michael Willilllll., President of the ~e Centre, hereby verify that, to the blllt of my knowlqe. information, and believe, all avel'lIlents in lhis document _ true and COIl'CCI, and that I have the authority to make this veriflWion. This statement or~on is madel1ll!ject kl the peoaItiesof18 Pa.C.s. Section 4904relatingto \IIISWOIII t'aleificatioDll kl authorities. wbic;h provides that if I make knowingly false avCl'l'Dtllb, I may be subject to criminal penalties. Date; No~ber 22, 2005 r THE PEACE CENTRE, Plaintiff v. THE TOWNSHIP OF NORTH MIDDLETON, Defendant :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :CNIL ACTION :NO.05-5831 CERTIFICATE OF SERVICE I, Carl C. Risch, do hereby that the foregoing was served by First Class Mail and/or facsimile and/or hand delivery as follows: James D. Bogar, Esquire Jennifer B. Hipp, Esquire 1 West Main Street Shiremanstown, PA 17011-0637 Steven K. Ludwig, Esquire Fox Rothschild, LLP 2000 Market St., 10th Floor Philadelphia, PA 19103-3291 cw:D Carl C. Risch Dated: November~ 2005 ~ THE PEACE CENTRE, Plaintiff :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :CIVIL ACTION v. :NO. 05-5831 r-...) (....) THE TOWNSHIP OF NORTH MIDDLETON, Defendant co C7) :-<. (J; PLAINTIFF'S AMENDED MOTION FOR PRELIMINARY OR SPECIAL INJUNCTION AND NOW, comes the Plaintiff, The Peace Centre, by and through its attorneys, Martson Deardorff Williams & Otto, and hereby amends its motion to this Court for a preliminary injunction under Pa.R.C.P. 1531 enjoining and restraining Defendant pending final hearing and determination of this action from prohibiting Plaintiff from using its property located at 505 Cavalry Road, North Middleton Township, as a "place of worship," and in support avers as follows: 1. The First Amended Complaint filed on November 23,2005, is hereby incorporated herein as if fully set forth. 2. Unless Defendant IS effectively restrained and enjoined, as described with particularity in the Complaint filed in this case and in this Motion, Plaintiff will suffer immediate, substantial, and irreparable harm by a governmental action which substantially burdens Plaintiffs free exercise of religion in violation of71 P.S. 9 2404, 42 U.S.C. g2000cc, 42 U.S.C. 9 1983, and the First, Fifth, and Fourteenth Amendments to the Constitution of the United States. 3. The issuance of a preliminary injunction will not cause undue inconvenience or loss to the Defendant, but will prevent irreparable injury to the Plaintiff. 4. This Court is specifically authorized to award injunctive reliefby 71 P.S. 9 2405(f). This Court has concurrent jurisdiction to provide injunctive relief under 42 U.S.C. ~2000cc, 42 () -11 .--1 ~:'~ :-) , .. \--~ U.S.C. S 1983, and the First, Fifth, and Fourteenth Amendments to the Constitution of the United States. 5. Plaintiff is likely to succeed in proving its case at trial. 6. Because Plaintiff is proceeding under 42 U.S.C. S 1983 and the Religious Land Use and Institutionalized Persons Act, Plaintiff is not required to exhaust any administrative remedies before seeking judicial relief. See Murphv v. Zoning Comm'n of the Town of New Milford, 148 F.Supp.2d 173 (D.Conn. 2001). Plaintiffis also not required to exhaust any administrative remedies under the Pennsylvania Religious Freedom Protection Act. 7. In view ofthe fundamental right to freedom of worship at issue in this case, Plaintiff avers that a bond is unnecessary in this case. WHEREFORE, Plaintiffs respectfully request that this Court enter an Order preliminarily enjoining and restraining Defendant and its employees, agents, assigns, and successors in interest from prohibiting Plaintiff from using 505 Cavalry Road, North Middleton Township, as a "place or worship." :yARTS~F WILLIAMS & OTTO Carl C. Risch, Esquire P A Attorney I.D. No. 75901 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff Date: November 23, 2005 THE PEACE CENTRE, Plaintiff v. THE TOWNSHIP OF NORTH MIDDLETON, Defendant :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :CIVIL ACTION :NO.05-5831 CERTIFICATE OF SERVICE I hereby certifY that a copy of the foregoing was served by Facsimile as follows: Date: November 23, 2005 James Bogar, Esquire Jennifer Hipp, Esquire I West Main Street Shiremanstown, P A 170 II Steven K. Ludwig, Esquire Fox Rothschild, LLP 2000 Market St., loth Floor Philadelphia, PA 19103-3291 By G)IX) Carl C. Risch JAMES D. BOGAR ATIORNEY AT LAW ONE WEST MAIN STREET SHlREMANSTOWN. PENNSYLVANIA 170 I I e-mail mail@bogarlaw.com TELEPHONE (717) 737-8761 FACSIMILE (717) 737-2086 JAMES D. BOGAH JENNIFER 8. HIPP. .Also admitted to New Jersey Bar Direct e-maJljhlpp@bogarlaw.com November 18, 2005 VIA HAND DELIVERY The Honorable Kevin A. Hess Court of Common Pleas of Cumberland County 1 Courthouse Square Carlisle, PA 17013 Re: The Peace Centre v. North Middleton Township Docket No. 05-5831 Dear Judge Hess: We are enclosing a copy of the Preliminary Objections of North Middleton Township in the above-captioned matter. A hearing regarding The Peace Centre's Motion for a Preliminary Injunction has been scheduled for November 23, 2005. We respectfully request that The Peace Centre's Motion for a Preliminary Injunction should be considered only after North Middleton Township's preliminary Objections have been resolved. Please contact us if you have any questions or if we can provide you with additional information. Ve yours, Enclosure cc: North Middleton Township, Attn: Board of Supervisors and Deborah A. Ealer, Manager (wi enclosure; via facsimile - 243-1135) Carl C. Risch, Esquire (wi enclosure; via facsimile - 243-1850) THE PEACE CENTER, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW THE TOWNSHIP OF NORTH MIDDLETON, Defendant n .--' <: '::~ , n ",1 DOCKET NO. 05-5831 ~'" c " PRELIMINARY OBJECTIONS OF DEFENDANT, NORTH MIDDLETON TOWNSHI1? TO PLAINTIFF'S COMPLAINT North Middleton Township, by and through its Solicitors, f'.^' Jennifer B. Hipp, Esquire, and James D. Bogar, Esquire, and pursuant to Pa. R.C. P. 1028 (a) (2), 1028 (a) (3), 1028 (a) (6) and 1028(a) (7), hereby makes the following Preliminary Objections to the Plaintiff's Complaint: 1. Plaintiff's Complaint alleges that North Middleton Township (hereinafter the "Township") violated certain provisions of the Pennsylvania Religious Freedom Protection Act, 71 P.S. S 2401 et ~ 2. By correspondence dated October 20, 2005, the Township issued an Enforcement Notice Ordinance Violation to the Plaintiff advising Plaintiff that its use of the real property at 505 Cavalry Road, North Middleton Township, Carlisle, Pennsylvania, is in violation of the Township Zoning Ordinance in that places of worship are not permitted in the Township's Campus Industrial Zone (I-I). A copy of the Enforcement Notice Ordinance Violation is attached hereto and incorporated herein as Exhibit "A". 3. The Plaintiff's real property at 505 Cavalry Road, North Middleton Township, Carlisle, Pennsylvania is located in the Township's Campus Industrial Zone (1-1). 4. By Application dated June 21, 2005, the Plaintiff filed a Petition for Amendment to the Township Zoning Map, requesting that the zoning for its real property be changed from Campus Industrial Zone (1-1) to Highway Commercial Zone (H-C). A copy of the Plaintiff's Petition for Amendment to the Zoning Map is attached hereto and incorporated herein as Exhibit "Bu. 5. At a public hearing conducted on August 18, 2005, the North Middleton Township Board of Supervisors considered the Plaintiff's Application for Amendment to the Township's Zoning Map. 6. At the August 18, 2005 hearing, Mike Williams, appearing on behalf of the Plaintiff, stated that the Peace Centre's primary purpose is to maintain and use the property located at 505 Cavalry Road, North Middleton Township, as a center of worship and education. A copy of the Decision of the North Middleton Township Board of Supervisors dated August 18, 2005 regarding the Plaintiff's Petition for Amendment to the Township's Zoning Map is attached hereto and incorporated herein as Exhibit "Cu. 7. By Application dated November 15, 2005, Plaintiff appealed the October 20, 2005 Enforcement Notice Ordinance 2 Violation to the North Middleton Township Zoning Hearing Board. A copy of Plaintiff's Zoning Hearing Board Application is attached hereto and incorporated herein as Exhibit "DU. 8. The pennsylvania Religious Freedom Protection Act requires that a complainant under the Act provide written notice to the Township by certified mail, return requested, of its intent to proceed with filing of a complaint. See 71 P.S. g 2405 (d) . 9. Plaintiff failed to provide the required written notice pursuant to the applicable provisions of the Pennsylvania Religious Freedom Protection Act. See id. 10. Plaintiff's failure to provide the required written notice to the Township constitutes a failure of the Plaintiff to conform to the requirements of the Religious Freedom Protection Act and the Township preliminarily objects to the Plaintiff's Complaint on such basis. See 71 P.S. g 2405(b) and Pa. R.C.P. 1028 (a) (2) . 11. Plaintiff's failure to provide the required written notice to the Township constitutes a legal insufficiency of the Plaintiff's Complaint and the Township preliminar~ly objects to the Plaintiff's Complaint on such basis. See 71 P.S. g 2405(b) and Pa. R.C.P. 1028(a) (3). 12. The matter of the Township's October 20, 2005 Enforcement Notice Ordinance Violation (~ Exhibit "AU) is 3 currently pending before the North Middleton Township Zoning Hearing Board. 13. The Township preliminarily objects to Plaintiff's Complaint on the basis that the Plaintiff's appeal of the Enforcement Notice Ordinance Violation is a prior action which is currently pending. See Pa. R.C.P. 1028(a) (6). 14. The Township preliminarily objects to Plaintiff's Complaint on the basis that the Plaintiff has failed to exhaust its appeal of the Enforcement Notice Ordinance Violation to the North Middleton Township Zoning Hearing Board prior to filing the instant Complaint. See 53 P.S. 55 10615, 10616.1 (c) (6) and Pa. R.C.P. 1028(a) (7). Date: November 18, 2005 AR, Esquire 475 One W. Ma' Street Shiremanstown, PA 17011-0637 (717) 737-8761 , B. HIPP, Esquire Pa. D. #86556 One W. Main Street Shiremanstown, PA 17011-0637 (717) 737-8761 Solicitors for North Middleton Township 4 CERTIFICATE OF SERVICE I, Jennifer B. Hipp, Esquire, hereby certify that I am this day serving the foregoing preliminary Objections upon the following named individual this day by depositing same in the United States Mail, First Class, postage prepaid, at Shiremanstown, Pennsylvania, addressed as follows: Carl C. Risch, Esquire Martson Deardorff Williams & Otto 10 East High Street Carlisle, PA 17013 Date: November 18, 2005 ~r Jen B. Hipp, Esquire . 1~/21/2005 17:07 7172581698 MICHAELwrLLIAMS PAGE 02 NORTH IDDLETO OWNSHI NORTH MIDDLETON TOWNSHIP 2051 Spring Road, Carlisle, PA 17013-1059 OFFICE (717) 243-8550 . FAX (717) 243.1135 . POLICE (717) 243-7910 October 20, 2005 VIA CERTIFIEDMA.lLNO. 7004 2s10 00031243 8066 Michael Williams 1725 D<luglas Drive Carlisle PA 17013 The pellC(> Center Attn: Michael Williams 505 Cavalry Road CarJislePA 17013 RE: Enforcement Notioe Ordinance Violaiion Dear Mr. Williams: You arc: the authorized representative for the The Peace Center, owner of real estare located in North Middleton Township (hereinafter the "Township"), same bcing know:nlllld numbered as The Peace Cemer located at 505 CavalIy Road. The Tax Parcel N1IQ1ber ofdris real estate is 29-18-1367-021. The Township is of the belief that, after reasonable investigation, The Peace center is in violatiOll of the Township Zonillg Ordinance. This violation exists and is maintained on the above referenced real property for which you,,", responsible. The nature of the violation is as follows: in a Campus Industrial Zone (l-1) a place of worship is not allowed. Yon were previously notified oftlris violation on May 11, 2005. As such, these activities are in violation of the Code of the Township of North Middleton, Chapter 204 (Zolling Ordinance). Section 2t This chapter is known and cited as the "North Middleton Township Zoning Ordinanoe." Specifically, these activities are in violarion of Zoning Ordinance Section 204-2 I (B) (Permitted Uses in the Cmnpus Industrial Zone). We are forwarding a copy of Zonillg OrdinOllC<> Section 204-21. A full lllld complete copy of this Ordirumce is available upon request. Yon 8l'e advised, being the representative of The Peace Center, that the above activity must be abated within t.biJ:ty (30) days of receipt of this Notice. Failure to comply with the foregoing or to file an Application with the North Middletoo Township Zoning Hearing Board will result in the Township taking finther action to ensure that the provisions of the Zoning Ordinance are met. ~ EXHIBIT " ~ A w " I;; ~ ;;!, . 18/21/2885 17:87 7172581698 MICHAELWILLIAMS PAGE 83 Should you elect to filQ lUl Application with the Zoning Hearing .BOll1'd, said application must be filed within thirty (30) days of the date of this notice. Failure to comply within the thirty (30) day period, WJ1ess extended by the Zoning Hearing Board, may result in legll1 action by the Township. Please be advised that any penon, partnership or corporation who sball violate any provision of the North Middleton Township Zoning Ordinance, as cited above, shall be liable, in II civil enforcement proceeding, cOJIlll1enced by the Township, to pay a judgment of not more than $500.00, plus all coun costs, reasonable attorneys' fees incUl1'ed by the Township. No judgment shall commence or be imposed, levied or be payable until the date of the determination of a violation by the District Justice. If the defendant neither pays nor timely appeals the judgment, the Township may enforce the judgment pursuant to the applicable rules of civil procedure. Each day continuance of II violation of the provisions of the North Middleton Township Zoning Ordinance shall constitute II separate violation, lI!lIess the District Justice determining that there has been a violation further determines that th= was a good fai1h basis for the person, partnership or COrpomtiOll violating the ordUtance to blrve believed 1hat there was no such violation, in which event there shall be deemed only one such violation unlil the fiflh day following the date of detennination of a violation by the District Justice, and thereafter, each day that a violation continues shall coostittlte a separate violation. All judgmentS, costs, and reasonable attorney fees collected fur the violation of the Zoning Ordinance shall be paid over to the Township. If you have any questions regarding this Notice of the di!'ectivcs of North Middleton ToWllllhip fur corrective actions, please feel free to contact the North .Middleton Township Municipal om"", 2051 Spring Road, Carlisle, PA 17013 or telephone (717) 243-8550. It is the desi1e of North Middleton Township to work with you amicably and reasonably resolve this matter as quickly as possible. Accordingly, your cooperation is appreciated. Sincerely, -=t:~ ~~~~ North Middleton Township Codes Enfurcell1ent Officer Enclosure Co: Board of SupervisOl'!l James D. Bogar, Solicitor '10/21/2005 17:07 7172581698 MICHAELWILUAMS PAGE 04 H. Off-street parking. Off-street parking shall be provided as specified in 9204-36 of this chapter. I. Signs. Signs shall be permitted as specified in S 204-39 of this chapter. J. Access drive requirements. All access driws shall be in accordance with s 204-35 of this chapter. K. Screening. Screening must be provided along any adjoining lands within a residential zone, regardless of whether or not the residentially zoned parcel is developed. (See 9204-38 of this chapter.) L. Landscaping. Any portion of the site not used for buildings, structures, parking compounds, loading areas, outdoor storage areas and sidewalks shall be maintained with a vegetative ground cover and other omamental p/antings. (See !l 204-:38 of this chapter.) . M. Outdoor storage and display. Within this zone, outdoor storage is permitted, provided all outdoor storage areas are screened from any abutting residential zone and the outdoor storage areas comply with the setbacks imposed within this section. Outdoor display areas need not be screenEid from adjoining roads, if they are located within the front yard. Section 204-48 of this chapter also lists other outdoor storage and display requirements. N. Waste products. Dumpsters used for domestic garbage may be permitted wltI1ln the side or rear yard, provided such dumpsters are screened from any adjoining roads or properties. Ali dumpsters shall be set back a minimum of 50 feet from any adjoining residentially zoned properties. All waste receptacies shall be completely enclosed. O. Commercial operations standards. All industrial operations shall be in compliance with any Commonwealth of Pennsylvania andfor federal government regulations, as required by the most recent regulations made available from these governmental bodies. P. All uses shall comply wnh the applicable general provisions contained wrthln Article III of this chapter. ~ 204-21. Campus Industrial Zone (1-1). A. Purpose. The purpose of the Campus Industrial Zone is to provide for limited business activities within a campus-like setting. The types of use permitted within this zone are meanl to promote an attractive and self-contained employment activity center. Strict design and landscaping requirements have been imposed to assure an attractive appearance from within the zone, as well as from adjoining roads. Finally, significant buffering techniques ara usad to protect adjoining residential areas. B. Permitted uses. (1) Agriculture, SUbject to the standards listed in 9 204-14 of this chapter. (2) Banks and other financial institutions. '1~/21/2005 17:07 7172581698 MICHAELWILLIAMS PAGE 05 (3) Business, professional and financial offices. (4) Health and fitness clubs. (5) Laboratories for medical, scientific or industrial research and development. (6) Manufacturing and packaging of the following: (8) Scientific, specialized and technical instruments and equipment. (b) Hardware and software for audio-video components, computers, vending machines, electronic equipment and video games. (c) FiniShed textile products. (d) Brushes, brooms and combs. (e) Jewelry and other precious metals. (f) Photographic, lighting and timekeeping equipment. (9) Small househOld appliances, excluding major appHances. (h) Musical instruments and sporting equipment. (I) Cosmetics, toiletries and pharmaceuticals. m Optical, dental and medical supplies and equipment. (k) Small or novelty products from prepared materials (excluding the use of sheet metals). (7) Medical, dental Of veterinary offices and clinics. (8) Photocopying, bookbinding, printing and publishing operations. (9) Retail sale of office supplies, office furnitun., art and drafting equipment and computers. (10) PUbliC, private, commercial and/or vocational and mechanical trade schools. (11) Public uses and playgrounds, SUbject to the applicable design standards Iisted;n 9 204-14F ofthis chapter. (12) Accessory uses customarily incidental to the above permitted uses. C. Special exception uses (SUbject to the review procedures listed in 9 2D4-125C of this chapter). (1) Commercial day-care facilities (s8e9 204-64). . 1f.l/21/2005 17:07 71 72581598 MICHAELWILLIAMS PAGE 05 (2) Hotels, motels and related uses (see 9 204-85). D. Conditional uses (subject to the review procedures listed in 9 204-134 of this chapter). (1) Convention centers (see S 204-69). (2) Hospitals and related uses (see 9 204-84). E. Lot design requirements. Unless otherwise specified, all uses shall comply with the lot design requirements contained within the following table: 2 acres Maximum Lot Minimum Lot Width Coverage :ZOO ft. 70% Maximum Permitted Height 35ft. ' Minimum Lot Area NOTES: 1 The maximum permitted height may be extended up to 60 feet, if adequate fire protection is assured to all floors of the building and the building is set back a horizontal distance at least equal to its height from each property tine. Prior to approval of buiiding height exceeding 35 feet, the applicant must submit a letter from the Fire Chief of the company with primary service area responsibility for the site, attesting to adequate fire protection. F. Minimum required setbacks. Unl",ss otherwise specified, all uses sheil comply with the setbacks contained within the following table. Edhor's Note: Table e is included at the end of this chapter. G. Off.street loading. Off-street loading shall be provided as specified in !l 204-37 of this chapter. In addition, no off-street loading area shall be permitted on any side of a building facing adjoining lands with a residential zone unless appropriately screened as provided here in at !l 204-38. H. Off-street parklng. Off-street parking shall be proVided as specified in 9204-36 of this chapter. I. Signs. Signs shall be permitted as specified in ~ 204-39 of this chapter. J. Access drive requirements. All access drives shall be in accordance with 9204-35 of this chapter. K. Screening. Screening must be provided along any adjoining lands within a residential zone, regardless of Whether or not the residentially zoned parcel Is developed. (See !j 204-38 of this Chapter.) L. Landscaping. Any portion of the site not used for buildings, structures, parking compounds, loading areas, outdoor storage areas and sidewalks shall be maintained with a vegetative ground cover and other ornamental plantings. (See 9204-38 of this Chapter.) . 1~/21/2005 17:fl7 71 72581698 MICHAELWILLIAMS PAGE 07 M. Outdoor storage and display. Within this zona, no outdoor storage nor display shall be permitted. N. Waste products. Dumpsters used for domestic garbage may be permitted within the Side or rear yard, provided such dumpsters are screened from any adjoining roads or properties. All dumpsters shall be set back a minimum of 50 feel from any adjoining residenlially zoned properties. All waste receptacles shall be completelY enclosed. Q. Commercial operations standards. All industrial operations shall be In compliance with any Commonwealth of Pennsylvania andlor federsl govemment regUlations, as required oy the most recent regulations made available from these governmental bodies. P. All uses shall comply with the applicable general proVisions contained within Article III of this chapter. g 204-22. Industrial Zone (1-2). A. Purpose. This zone provides for a wide range of industrial activities that COntribute to the well-being of the townShip by diversifying its economy and providing valuable employment opportunities. The required lot sizes have been kept small to accommodate the start.up industries that are likely to emerge; however. larger and heavier industries have also bean permitted. This zone provides for light industrial uses as penmitted by right, but requires acquisition of a conditional use for heavier and potentially more- objectionable types of industrial uses. These areas have been located near existing public uWlty service areas and along major roads. Design standards have been imposed to create attractive site designs and moderate the objectionable impacts associated with industrial uses. Substantial setbacks are used to protect adjoining residences. B. Permitted uses. (1) Agricultural support businesses, including: (a.) Facilities for the commercial processing and warehousing of agricultural products. (b) Facilities for the warehousing, s'des and servics of agricultural equipment, vehicles, feed or supplies. (e) Commercial stockyards or feedlots. (d) Veterinary offices, animal hospitals or kennels. (2) Agriculture, excluding commercial mushroom operations. subject to the standards listed in !l 204-14 of this chapter. (3) Laboratories for medicel, scientific or industrial research and development. (4) Machine shop. (5) Manufacturing. packaging, storage andlor wholesaling of the following' VU(' v. ~vvv ~.~~nm "0. /"4 Ie. i APPLICATIONIPETITION FOR AMENDMENT TO THE ZONING MAP AND/OR NORTH MIDDLETON TOWNSHIP ZONING ORDINANCE OF 1997 Name of Applicant: _T ~ r~~ G.J-r<. Address: ..) tJ S- &v(i\.-I yo,-/ J2J I G..".LsLt 11711 /7/)/3 7/7 - -2.4/- 'f!Ro() -- (fUI<..( :U,,J,()IJS / /k "P-btc.-e G~I-y< Telephone No.: Applicant Date: Name of Landowner of Record: Subject Property Address: 6"OS (awl"..; Ai; c....../;J'/-f Pi/- /70/3 Gw,~()S ]:I-t;l)$-!NA-( (:r - I) J C'~'- ~ !I/j4~1 ~~YC/~I U) (I\ti l~L..d LJ; Ii .~kM 17 ~r /Jot( (;01...5 1l,(, c.ub/p, IJJ 17 d /;;, I 7/7-2C? -/6C(1-~_ t1...,.~ ~ (Pl.. \ B - \..O!Jr '<- r'\~'I\- \...I)e~L Subject Property Zone: Nature of Request: Name, address, and telephone Dumber oCrepresentative or roasultant Attachmeots: . L Ld ~(A.llri-.. MA-v W ~ 2c."'IA.J )II/<<"f 2. J ~\' 1'0~.7 V"V-f> ~ EXHIBIT " "f r1. ~ '\-J L~ r,.''''I'fI1W~/Arvn rt't'f' Am~~rtn 7nnin~M.n -!(..({J b\Ciiv19oi V \.I I' V. '-VV \J oJ' '1"'1"1"1111 '" O. L ~4 I ~. J Reasons CbllDge Is Beneficial to Township: 1. PQ1-.f'< Pof~-tf,tJ..1 (;Y' I~Cf'~C(,J f'rurfy f;...X. 2. ;::"vfvr~ -toi.lrt~"-1. ("Ie" II;,). 3, 4, Signature: Date.: ~hfs I h=by certify that the infonnation submitted in accordance: with this Application is correct, and I further agree to pay for costs association with this Application. By$1 Date: ~Iz(~r , / n-n~t"'rr/AN'>f_ t...........Jm-wi....7,....in...Up.?> oJ OJ I' oJ_~.~.V_ ",'+vl"d~\ , . . ! lit .~~~~~ ~ ;. .~ >>Ii Iiii' ~ <.. . .~"" > ! 'I t ""~; .. z i ~ i" t lH\~~iiUt n~tii!miH iillllli..t..t..... :;1~~a ~!~lil>~i"1.;:!!' ...... 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'.. ."- {90 ~ (t',f' t ..:'. {L). .;\ _ ;,'; _ -~' (Lll '~_.. . --/' ,. \-.-:.:_----.--J.--..--.. ., .. ,,, .. .,.. . . :-.r' . ~ . . ...L . - " ZZ.' -~ , \ ~. ~~;.,. :, .. ~ ',.. .:;.,,:>-.j 9' -~. ..-_....---' \ \Y'- , y.'" .0 . ,. ,,\. . \ " \..>?; ,\~' :. ~,.-.:" \' \' \ . ~ ,.' ' . ,. > " A" . - \. " -" ,'" ,)' \7 .' .' . \ "\ a . \' ." ' . '" ,,,", ' " ," \i ,~; ~ _:: "'." _ ~.. . (PI .. \. .". . , - " \ u I ,\~' . ,," ~. .,' \ \ ' ----< " " 'I. ' ., . ." -~. ' 'j":: -: \\ ~"'. ' . ;~~~-C-:" \ . I"'" . ..-~ .; ., ,,"' .~. _ \ ;:-.' .. ".~, :k. -' ..,.~..:,-~. - ' :.' \ '- .,e---' ..' ..'" ...... " ..' ~ , . _ ~. _ ''':;; .:. "-""i':.'~;;'("''': .:. ."~. ' ,,> .' " . ,. ." .,;-J".' ~..,. '" -..,-. .' ,,' "." ..,.,.\ . .,' ., \. ,,' " ,-i;" ,~._, ",. 0 .\~;....., . ~ ....trf;..t::;7F:7.t:/":~ 'r/:~ ..~,"'" ~' '- ",."._.. \\ :~_,,,,,..' ..;..,.; '.' ,..... ,.. r ,. ,,, .... :'"",' .~,:" '. < ~~, .... , . ",;;;,,''''Z' .<-<(' y 10" .' ~ ~~~r~);l." . ,,' .,,' "11 4 lr" .. ~~\'\:t{:A~::!";' .' .'" '~ :t. .. '\.; ~ ~0 ',~, . ._ .: o' ..: . J "". ~ ~ . . ., ." .'.... .... ,~.' . .,"" '. ,~_...----~' ,- _...- ,~{, - '.... ..~ .- ," .. ~..:.i::.:, -.Y ..--...... -,'. ~ 1 ~: ---- " .~.._'_ n'. "-'~.'~:;:~~...,. ~ .;.""..,~- . .........t'""h""'l.l~~d--........-.-:.--_.-.:--.........--- ---~~_.--- ....... IN RE: APPLICATION AND PETITION OF THE PEACE CENTRE FOR ZONING AMENDMENT: BEFORE THE NORTH MIDDLETON TOWNSHIP BOARD OF SUPERVISORS CUMBERLAND COUNTY, PENNSYLVANIA APPLICATION NO. 05-02 APPLICATION ~RD PETITION FOR ZONING AMENDMENT DECISION OF THE NORTH MIDDLETON TOWNSHIP BO~~ OF SUPERVISORS The Peace Centre (hereinafter referred to as "Applicant") has submitted an Application and Petition for Zoning Amendment, requesting an amendment, change and modification of the North Middleton Township Zoning Map, which is a part of the North Middleton Township Zoning Ordinance. Specifically, the Applicant requests an Amendment to the Zoning Map to reflect the zoning designation of Highway Commercial Zone (HC) for all that certain tract of real estate consisting of approximately 4.024 acres, same being known and numbered as 505 Calvary Road, North Middleton Township, Cumberland County, Pennsylvania. The real estate is presently 'zoned Campus Industrial Zone (I-I). The real estate is owned by The Peace Centre. The Application consists of a completed North Middleton Township Application/Petition for Amendment to the Zoning Map I- Oi _\ :r"---J X UJ and/or North Middleton Township Zoning dated June 21, 2005 as submitted by the Applicant. Attached to the Application is a eWEl313.1'V.lS-lTlf portion of the Zoning Map of North Middleton Township and several other drawings depicting the location of the Applicant's property. The Board of Supervisors of North Middleton Township (hereinafter "Board") formally accepted the Application on July 7, 2005. The Board also set a date for the Public Hearing, same being August 18, 2005 and, further, requested the review and recommendations of the North Middleton Township Planning Commission and the Cumberland County Planning Commission. The Board held a Public Hearing on the Application on August 18, 2005, said Public Hearing taking place after proper and appropriate legal advertising and posting. The Board held its deliberations and rendered its decision concerning this matter at the Public Hearing on August 18, 2005. In addition to rendering its decision, the Board directed that a written decision, with appropriate findings of fact and conclusions be prepared. This decision follows accordingly. FINDINGS OF FACT The North Middleton Township Board of Supervisors makes the following Findings of Fact: 1. The Application submitted by The Peace Centre for Zoning Amendment consists of a completed North Middleton Township Application/Petition for Amendment to the Zoning Map and/or North Middleton Township Zoning dated June 21, 2005 as submitted by the 2 Applicant. Attached to the Application is a portion of the Zoning Map of North Middleton Township and several other drawings depicting the location of the Applicant's property. See TownShip Exhibit No.1. 2. The Application was submitted to North Middleton Township, along with the payment of the requisite application fee, on June 21, 2005. 3. The Application requests an amendment, change and modification to the North Middleton Township Zoning Map, which is a part of the North Middleton Township Zoning Ordinance, to reflect the designation of Highway Commercial Zone (HC) for all that certain tract of real estate consisting of approximately 4.024 acres, same being known and numbered as 505 Calvary Road, North Middleton Township, Cumberland County, Pennsylvania. The real estate is owned by The Peace Centre. 4. The tract of real estate in question is presently zoned Campus Industrial Zone (I-I). 5. The Application and petition for Zoning Amendment is submitted pursuant to The Code of the Township of North Middleton, 2001, Chapter 204, Section 133. 6. The North Middleton Township Planning Commission reviewed the Application at its regularly scheduled meeting on August 9, 2005. The Planning Commission, after lengthy debate and consideration, and with some apparent hesitation, recommended 3 that this tract of land be rezoned from the Campus Industrial Zone (1-1) to Highway Commercial Zone (HC). See Township Exhibit No.4. 7. The Cumberland County Planning Commission by letter dated August 18, 2005, recommended that the zoning map change request be disapproved. See Township Exhibit No.5. 8. After proper posting and legal advertisement, as required by the Pennsylvania Municipalities Planning Code and The Code of the Township of North Middleton, 2001, the Board of Supervisors conducted the Public Hearing on August 18, 2005. See Township Exhibit No.2, Legal Notice and Proof of Publication from The Sentinel confirming that publication occurred on July 29, 2005 and August 5, 2005 and Township Exhibit No.3, Correspondence from Ryan M. Hovis, Codes Enforcement Officer, confirming that the property was properly posted and the owners of all real property located in the area proposed to be rezoned were given notice of the Public Hearing. 9. All individuals who were in attendance at the August 18, 2005 Public Hearing of the Board of Supervisors were requested to sign their names and addresses on an attendance sheet. 10. At the hearing, the Applicant's representative, Carl C. Risch, Esquire, confirmed that the Applicant would not be making a stenographic record of the proceedings. The Applicant was 4 advised that the Township would not be making a stenographic record. 11. The Applicant introduced one exhibit into the record, same being a copy of a letter dated May 11, 2005 from Paul M. Fegley, North Middleton Township Codes Enforcement Officer to The Peace Center. See Applicant's Exhibit No.1. 12. Mr. Risch, in his introductory statement, stated that the requested zoning change to Highway Commercial Zone (HC) is consistent with other lands located to the north of the Applicant's property. This property is separated from the Applicant's property by the Pennsylvania Turnpike. 13. Mr. Risch stated that Robert Frey, the owner of property adjoining The Peace Centre's property was not opposed to the zoning change. Mr. Frey was not present at the Public Hearing. In addition, written correspondence from Mr. Frey was not introduced. 14. Mike Williams, appearing on behalf of the Applicant, stated that The Peace Centre was a non-profit organization whose primary purpose is to maintain and use the property located at 505 Calvary Road, North Middleton Township, as a center of worship and education for the local Muslim community. Mr. Williams is a member of The Peace Centre, serving as its representative and manager. 5 15. Mr. Williams testified that The Peace Centre may want to expand to provide for a bed and breakfast accommodation or other commercial venture. Mr. Williams testified that the building maintained by The Peace Centre at 505 Calvary Road is used as a place of religious worship. 16. The property of The Peace Centre is located in the Campus Industrial Zone (I-I) which does not provide for churches or places of worship as a permitted use, conditional use, or use by special exception. 17. Mr. Williams testified that The Peace Centre would not be agreeable to a zone change to Suburban Residential Zone (R-l) because that would impose limitations on the ability of The Peace Centre to engage in a bed and breakfast accommodation or other commercial venture. 18. Mr. Williams offered no testimony as to whether or not the requested zone change to Highway Commercial Zone (HC) would be consistent with the zoning of the neighboring properties, particularly adjoining properties to the south. In addition, Mr. Williams did not offer any testimony as to what economic impact, if any, the Applicant's requested zoning change would have on the values of the adjacent properties or, further, the general effect on the neighboring properties. Finally, Mr. Williams offered no testimony as to the sufficiency of ingress and egress to and from 6 Calvary Road to The Peace Centre, either under its present usage or expanded usages as proposed. 19. Margaret Knox and Tanna Clipp, both residing in the Township, asked questions concerning the relief requested by the Applicant and the type of courses taught at The Peace Centre and whether or not there is a tuition charge. DISCUSSION The Application/Petition of The Peace Centre for an Amendment to the North Middleton Township Zoning Map, said Application being referred to in the Findings of Fact, is not appropriate and should be denied. A change in the zoning of property owned by The Peace Centre from Campus Industrial Zone (1-1) to Highway Commercial Zone (HC) is not warranted, based upon the testimony presented. The Applicant has not presented sufficient evidence by way of the impact of the proposed zoning change on contiguous properties, the change, if any, to the neighborhood and economic impacts, if any, that would result from the proposed zoning change. The requested zoning change would not be consistent with the adjacent zoning classifications and present utilization of properties in those zones. Although property located to the 7 north of the Applicant's property is zoned Highway Commercial (HC), that property is clearly and substantially separated from the property owned by the Applicant by the Pennsylvania Turnpike. The Board is mindful of the fact that The Peace Centre, or any other owner of this property, could utilize the property in any manner allowed under the Highway Commercial Zone (HC). As Mike Williams testified, The Peace Centre contemplates exploring commercial endeavors. By granting the requested zoning change, the Highway Commercial Zone (HC) would jump over the Pennsylvania Turnpike and would continue south along the Cavalry Road. With the exception of the Applicant's property, all property located off of and adjoining Cavalry Road, between the Pennsylvania Turnpike and the Harrisburg (Carlisle) Pike, is zoned Suburban Residential (R-1). The Applicant's property, as compared to all of the other properties along the Cavalry Road, has a small frontage or access to the Cavalry Road. The bulk of the Campus Industrial Zone (1-1) is located to the west of the Applicant's property and to the west of the Suburban Residential Zone (R-1) that presently exist along both sides of Cavalry Road. But for the Applicant's property, general access to the Campus Industrial Zone (1-1) in this area is to and from the Harrisburg (Carlisle) Pike. 8 DECISION The Board of Supervisors of North Middleton Township hereby decides by a majority vote, with four (4) members voting in the affirmative (Vice-Chairman Shearer, Member Painter, Member Hurley and Member Bucher) and one member not participating by virtue of a voluntary recusal (Chairman Myers), that the Application/ petition for Zoning Amendment as submitted by The Peace Centre, same requesting a zoning designation change from Campus Industrial Zone (I-l) to Highway Commercial Zone (HC) , for all that certain tract of real estate consisting of approximately 4.024 acres as defined and set forth in the Application, is hereby denied. Resolved and approved this 18th day of August, 2005. ATTEST: NORTH MIDDLETON TOWNSHIP BOARD OF SUPERVISORS j'{j (j~ 'lw' ~'r Township S cretary --------- ~o/;i~~ Richard A. Bucher, Member :l 9 ~ - . ~. NORTH MIDDLETON TOWNSHIP ClMBERLAND COmITY, PENNS'lLVANIA ZONING HEARING APPLICATIoN 1. I hereby apply for: (identify request and complete Ordinance section_) Alternative } a. Relief Variance x Ord.i.nance section 204-21 IE) b. ) Special Exception Ordinance section Prinary Relief c_) Appeal from Zoning Of:ficer, other MUnicipal body or official. X ordinance section-20~2I'IJl) d.) S'-los'tantive Challer.9'''': 'i!a1-idi.ty.,.c.~ Map/Zoni..'lc;1 Or<;l.in2.l1ce Ordinance section Phone No_ The l;'e'lce Cen.t.re 505'. Caval.l:Y 'Road Carlisle, FA U013 (717 ) 243-B47 2. Applicant's Name Address ;3. Owner's: NalIle Address Sane Phone No. ( 4. Applicant's: Atto=ey carl c. Risch, Esq. 10 East Hiah Street Carlisle. PA 17013. 5. Location of Property Affected 505 cavalry Road 6. Detail-ed Description of Use of Land: a.) zoning District 1-1 b-l Present Use Spil."itual center, Islaroic school and (a=rdfnq to the Township), a plRC"e of l<<"Jyship. c _ ) proposed Use Same as current use Expected Period of Time of Use: PetiIEiJent. .. . d. ) ~ EXHIBIT '" w ~ ~Y "' ~ ~ < ~~ . .. 7. Reason for Request: (Insert AttachJnent if Necessary) See attached letter. s. All required additional infoJ;1llation and eXhibits in cOJnpliance with SECTION 60.( - ZONING llEARD1G BOARD'S FUNCTIONS of the North ~iddleton Township Zoning Ordinance. 9_ FEES: a.) Special Use or Variance Request in; (~) Conservation District (2) Agricultural District (3) Agr.lcultural Holding District (4) Suburban Residential District (5) Hi-Density Residential District kmount Due: $ 200.00 b.) .special Use or V~iance Request in: . (l)" Neig-hCorJic=.od" COl1llllercial District (2) Highway Commercial District (J) Campus Industrial. D...i!>J::r::.i<::'t:.. (4) Industrial. District (6) Scenic River District Amount Due; $ 300.00 .FE2 OP ~ '. RECt::IVED; I certify the above information and submitted exhibits to be true, correct and complete _ Any in.tonnation I have failed to supply may be grounds for the zoning Hearing board to dismiss application. TownShip Official I or We agree the Hearing by the Board on this Application may be Tape Recorded rather than Stenogt'aphicallY Recorded_ (Strike out if "ot '"""ed) ~ Applicqnt - Owner - Agent \ \-\<;-\jC;- Da-ce Date -. . , LIST OF ADJOINING PROPERTY OWNERS 1. Margaret B. Bushey, Trusteee c/o The Carlisle Kitchen Center 29-07-0467.003 1034 Harrisburg Pike Carlisle, PA 17013 2. Robert Frey & Linwood B. Phillips. Jr. c/o Frey & Tiley 5 South Hanover Street Carlisle, P A 17013 3. The Commonwealth ofPellllsylvania National Guard Annory 504 Cavalry Road Carlisle, PA 17013 "v' v V 1..<.1 r. 'l- . , 16/21/2005 17:67 7172581698 M!CHAELWILLIAM6 PAGE: 62 NORTH IDDlETO OWNSHI NORTH MIDDLETON TOWNSHIP 2051 Spring Road, Carlisle, PA 17013.1059 OFFICE (717) 243-B~~O . FAX (717) 243-1135 . POLICE (7171243-7910 'October 20, ;!OOS n4. CERTlFlEDMAILNO. 7Q(4)Slo00()J 12438066 Mieh3el WilU-s 1725 Doug1as DriVQ CarlislePA 17013 1bb p~ CelItIlt AilIl: Micllael Wi1Iilllll8 505 Cavaltr Road CatIisIe P A 17013 RE: EafOl'QllllleQl :Notice Ordizumoe VIOlation DClIt'Mr. 'Williams: You arc the anthorWld repres=latiVll tor the: Tiul Peace Centeo-, owner ofreal. esllde l~ ill North Middleton TawJlsbip (hereinsfttr!he "Toumhip"), ~ bein3 tnown and numbered as The Poore Center loollled 8! 505 ClmIlzy Road. The Tal( Pa=/. NmnbGl: of1llis real_ is 2Sl-1t-1367-021. The TOWJI.Sbiv is oldie belief~ atler reasooabkl invcstigatiOll, The Peace ~ is In violstiolt of1ll. Township ZoniDg 0ccliDaw;e. This violation lIXisls Slld is m.m',.;"...!. on !he abaVI' ~c<<l real ptOperty for ....hich )'OIl arc ~espoIISible. :rhe JJature of~ 'I'iolationis as fOllows: ill a Campus Jndusttial Zone (I-I) a placo of worship is not allowed. Yon were previously llOtified of this viollltion on May 11, 2005. As socll, 1IIt:le activities are u. violsiion otthe CoM of!be TOWIJsbip ofNorlh Middletoo, Olaptcr 2~ ~ Ordill=), Section 21. This chap*, Is known and c.ited lIS the "North Middleton Township Zoning OtlliluRlce. . Spccl1ically, ~ activilm arc in violation of Zoning Ordiwmcc Scefion 204...21(B) (l'enniUed Uses in the Campus Industrilll Zone). We are forwvding a oopy of ZoIling 0rcIman.,. ~OXI ~04.Z1. A fiill and complete copy of this Ordiluln", is available upon ttqlIest. You !Il:Il advised, being the repreaeatlltive of TIle Peace Center, !bat the above !Illtivity JnUSt be abatod within thirty (30) days of r=ipt of IiiJI Notice. rsn.ure to COIl1ply with the fotegoing or to tile an Application wilh the North MidOleton Township Zoning Hearing BOlIfd will result in the ToWllSh.ip taking fiatI= action to =e that the provisions of the Zoning Ordinance are met. , 1~/21/2aa5 17:07 7172581698 MICHAEL.WILLIAMS PAGE a3 Should you elll(;t to filo iIJI Application with the Zoning Helllin$ Bolll:d, said application tllU<t b.l iiled willtin 1hitty (SO) days of the datD of !his notice. FPilure to comply within the thirty (30) dstj period, 11Dless ~ed by the Zonblg Hearing .BOard, may re5lll1 in legal action by the TOWIl$hip. please he advised that any person, ~ship or coq>oration who <ball violate any JlI'OvisiOIl of the North MiddloloI;t Township Zoning~. as cited aOOve, Jhall he liable, in a civil euforcement proceediog, COOIlI1~ced by the To'lYllShit>. to pay a judgmllllt of not more tlIan $$00.00, plus all CObn 1'QSlS, reasonable lIIlOrll.eys' fees in.cw:red by fli. TowDSlUp. No ju.dgmut man _~e or be imposed, levied or bo payable UIl1il the date of the dmminllliOD of II violation by the District Jwtice. rf the defendant neik pays nor Iimely appeals the jn'W'~ !be:: ToWD$bip 1JJJJ'f enfoJw the judgmel1t pursuam to tile applioable ru1es of civil procedure. ElICb day CI:lIItinu1mce of a vioWiOll of tho provisions of the North Middleton Township Z~ ~. shall ~tule IIllCpl1I'slo viellllio.n, llllIess the Pl6lrict Justice detl!l'mini"8 that thew has bee.n a viOJaliOll funhc:r dcte.m:Jines that thm was a aood 1llith basis for the person. p8<1nersbip or oorpomtiolI violating !be ordinsl1ce to h4ve l1elieved tbat there was 110 SWlll violatlOll. in which CVellt d1ere shall b. d....-l only on. 1I1c:h violati<m IUltiIlhe fifth day fol1owhl8 th. dIIle of defpnnillerion of a violation by ~ District Juati~ IIIllI th<<eatm, ead1 day that a violalion 00IIlimlef sIWI COllStilllte a ~e violarian. All judgmen!$, costs, and rea&o1l4ble attorney fees conected for ~ violation of tbc Zoniug Ordillance shalll:le paid 0Vf1t to the Township. If Y01J have aD}' quesliOllJ regarding this Notice of the ~ of NOrth Middleton Township :for comctive ac:d0ll&, please *'" :free in ~ 1he North Middleton TOWI18hip MWJieipal Office, 20$1 Spring Road, CarlWe, FA 17013 or lOlepb<w.,(711) 243-8550. It is the desire of North Mlddietoll Township 10 work With YOlI 8IIIleably aJId ~ly reaoh-c this ~ M quickly u po$8ible. Aceotdinslr. your ~011 is ~ Sin~11. -=t:~ ~ \~ Nordl MJddleton T<l"1lShip Codes F.nf=entent 00ker EnclO8llrC Cc: SOlltd of SlIJ"'lVisors J /lIDOS D. Bogar, Solicitor ~'\FJLES\DA TAFJI-E\GeneraIlCurrent\] 1754, J-petitionforattomeysfees,wpd THE PEACE CENTRE, Plaintiff :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :CNIL ACTION v. :NO.05-5831 THE TOWNSHIP OF NORTH MIDDLETON, Defendant PETITION TO RECOVER ATTORNEYS FEES PURSUANT TO 42 U.S.C.A ~ 1988(b) AND NOW, comes the Plaintiff, THE PEACE CENTRE, by and through its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and avers as follows: 1. P1aintiffis anon-profit, non-stock Pennsylvania corporation with an address of 50S Cavalry Road, North Middleton Township, Carlisle, Cwnberland County, Pennsylvania 17013. 2. Plaintiffis a religious institution which qualifies for exemption from taxation under Section 501(c)(3) of the Internal Revenue Code of 1996. 3. Defendant is a municipal corporation with an address of2051 Spring Road, North Middleton Township, Carlisle, Cumberland County, Pennsylvania 17013. 4. Plaintiffis the owner of 50S Cavalry Road, North Middleton Township, at which Plaintiff operates an Islamic school and spiritual center. Plaintiff also offers prayer services, including Fridayprayer services, to Muslims at the Peace Centre. 5. On October 20, 2005, the Defendant, by and through its zoning officer, sent a letter to the Plaintiff directing it to cease using the facility located at 505 Cavalry Road as a "place of worship." A copy of this letter with attachments is attached to Plaintiffs First Amended Complaint. 6. Defendant contended that, since "places of worship" are not permitted in the Industrial, or 1-1, zone, Plaintiff was in violation ofthe Township's zoning ordinance by holding prayer services at the Peace Centre. 7. Defendant's letter substantially burdened the Peace Center's free exercise of religion by creating a chilling effect on Islamic worship and practice at the Peace Center. 8. On November 23, 2005, Plaintiff Peace Centerirutiated the above-captioned 42 U.S.C.A. 1983 action seekingreliefunderthe Pennsylvania Religious Freedom Protection Act, 71 P .s. 992402 and 2403; the federal Religious Land Use and Institutionalized Persons Act, 42 U.S.c. 9 200Occ; and the First, Fifth, and Fourteenth Amendments to the Constitution of the United States. 9. In addition to filing this action, the Peace Center appealed the October 20,2005 cease and desist letter to the Zoning Hearing Board ofNorth Middleton Township and simultaneously applied for a variance to permit the Peace Center to operate a place of worship despite the 1-1 zoning regulations. 10. On January 5,2006, after a duly advertised public hearing, the Zoning Hearing Board sustained the Peace Centre's appeal of the cease and desist letter and granted the application for a variance. A copy of this decision is attached hereto as Exhibit "A." 11. At the January 5th hearing, the Township's representative testified that the Township was not intending to enforce the October 20th cease and desist letter; however, the Township never rescinded the letter. 12. Additionally, the Township sent a letter dated January 4, 2006, to the Zoning Hearing Board ofNorth Middleton Township supporting the Peace Centre's application for a variance; however, the Township did not rescind its October 20th cease and desist letter nor did it amend its zorung ordinance to erase its illegal treatment of religious and non-religious assembly in the I-I zoning district. 13. It is believed, and therefore averred, that this current litigation and parallel zoning action persuaded North Middleton Township that its position on the Peace Center and its compliance with the local zoning ordinance was not only incorrect, but illegal, under state and federal law. 14. It is further believed, and therefore averred, that this persuasion inspired the Township to both publicly disclaim the cease and desist letter of October 20, 2005 and publicly support the grantofthe requested variance permitting the Peace Center to operate as a place of worship. 15. The disclaiming of the cease and desist letter as well as the sustaining of the Peace Center's appeal marks "a material alteration of the legal relationship of the parties" sufficient to justify the characterizing of the Peace Center as a "prevailing party" for the purposes of attorneys fees. See Buckhannon v. West Virginia Department of Health, 532 U.S. 598 (2001); Tuesdell v. Philadelphia Housing Authority, 290 F.3d 159 (2002) (holding that the touchstone of the prevailing party inquiry for the purposes of awarding attorneys fees in 1983 actions is that there must be some "alteration of the legal relationship of the parties"). 16. Pursuantto 42 U.S.C.A. 9 1988(b), the Peace Center is entitled to the attorneys fees it occurred in securing its rights pursuant to the federal Religious Land Use and Institutionalized Persons Act, 42 U.S.c. 9 2000cc; and the First, Fifth, and Fourteenth Amendments to the Constitution ofthe United States. 17. Pursuant to 71 P.S. 9 2405( f) ofthe Pennsylvania Religious Freedom Protection Act, the Peace Center is also entitled to attorneys fees because the Townships' conduct in this case was dilatory, obdurate, and vexatious. 18. The Townships' conduct was dilatory in that it sent the Peace Center a cease and desist order that it later said it had no intention of enforcing. 19. The Townships' conduct was obdurate in the sense that it required taking the Township to court in order for the Peace Center to protect its constitutional right to gather in worship. 20. The Townships' conduct was vexatious in that the Peace Center was singled out by the Township in its cease and desist letter. 21. The attorneys' fees that the Peace Center incurred in this action are reflected in itemized statements that are attached to this Petition as Exhibit "B." The prevailing hourly rates for shareholder attorneys for specialty litigation and practice at Martson Deardorff Williams & Otto is $21 0.00 per hour, $150.00 for associate attorneys, and $40.00 for paralegals. WHEREFORE, Petitioner Peace Center prays this Court to grant arule upon Defendant to show cause why the Peace Center should not be awarded attorneys fees in an amount in accordance with the itemized statements attached as Exhibit B and the prevailing hourly rates contained in Paragraph 21 of this Petition. Respectfully submitted, MARTSON DEARDORFF WILLIAMS & OTTO ~~l;;~ft1k LD. No. 75901 Michael J. Collins, Esquire LD. No. 200427 Ten East High Street Carlisle, PAl 7013 (717) 243-3341 Attorneys for Plaintiff Date: February 8, 2006 DECISION OF NORTH MIDDLETON TOWNSHJP ZONING HEARING BOARD APPLICANT'S NAME: APPLICANT'S ADDRESS: OWNER'S NAME: OWNER'S ADDRESS: LOCATION OF PROPERTY: CASE NO: DATE OF APPLICATION: DATE OF HEARING: DATE OF DECISION: BOARD MEMBERS PRESENT: SOLICITOR: The Peace Center 505 Cavalry Road, Carlisle, Pennsylvania The Peace Center 505 Cavalry Road, Carlisle, Pennsylvania 505 Cavalry Road, Carlisle, Pennsylvania 05-13 November 15, 2005 January 5,2006 January 5, 2006 H=y Weeks, Chairman; J. Wolford Herman; Chester Billman Michael R. Rundle, Esquire DECISION L The Applicant's appeal of the determination of the Codes Enforcement Officer as set forth in the letter of October 20, 2005 is sustained. 2. The Applicant's request for a variance to Section 204-21.B of the Zoning Ordinance to permit the use of a "Church and Related Uses" as defined in Section 204-12.C of said ordinance on the subject property located in the Campus Industrial Zone (I-I) is granted with the condition that the Applicant comply with all applicable federal, state and local laws rules and regulations. NORTH MIDDLETON TOWNSHJP ZONING HEARING BOARD ~ By: Henry Week, Chairman ( NOTICE: ANY PERSON AGGRIEVED BY T DECISION OF THE ZONING HEARING BOARD MAY APPEAL TO THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. THE APPEAL MUST BE TAKEN WITHIN THIRTY (30) DAYS FROM THE DATE OF THIS DECISION. February 7, 2006 STATEMENT OF SERVICES 08/04/05 CCR Call from M. Williams re: Peace Centre zoning matter; meet with Mr. Williams; review zoning change documents. 1.2 08/05/05 CCR Call to 1. Hipp; call from 1. Bogar, Township Solicitor. .2 08/05/05 PL4 Open file; check assessment record. .3 08/08/05 CCR Call to J. Bogar, Solicitor for North Middleton Township re: zoning change; call to R. Frey re: Peace Centre zoning change. .4 08/09/05 CCR Prepare for Planning Commission meeting; travel to North Middleton Township Municipal Building; attend Meeting; return travel. 4.2 08/18/05 CCR Calls from and to J. Bogar; call to M. Williams re: call from Solicitor; prepare for hearing; travel to North Middleton Township; attend zoning change hearing; return travel. 2.4 08/] 9/05 CCR Further research re: appeal of zoning officer letter; conference with 1. Otto re: zoning appeal and/or text amendment to zoning officer. .5 08/19/05 IVO Office conference with CCR; 8/18 and 8/19. .5 10/24/05 CCR Review letter received from North Middleton Township; research re: RLUIP A of 2000 and exhaustion of administrative remedies; email to M. Williams. .6 10/25105 CCR Exchange of emails with client re: Township appeal. .2 Statement of Services February 7, 2006 Page 2 10/26/05 CCR Email to client; review P A RFP A. .2 IlI08/05 CCR Meet with M. Williams re: action against Township; review Pennsylvania Religious Freedom Protection Act and relevant case law in preparation for drafting Complaint against North Middleton Township; draft Complaint; research re: compelling state interest in context of zoning law. 2.0 11/09/05 CCR Finalize Complaint; draft Motion for Preliminary Injunction; call to M. Williams; edit Complaint; file Complaint; meet with Court Administrator re: judicial assignment; deliver to Judge Hess; prepare affidavit of service; arrange for service of process on Township. 2.7 Ill09/05 IVO Office conference with CCR re: appeal process. .3 11/09/05 PLIO Serve North Middleton Township with papers; filing the 1.1 papers; and mailing the papers. IlI10/05 CCR Outline potential witnesses and needed testimony; prepare zoning application. .4 11/11/05 CCR Review Zoning Hearing Board schedule; obtain fee schedule for zoning application; report incident to CAIR; draft report to CAIR re: RLUIP A violation; draft letter to U.S. Department of Justice re: Peace Centre and RLUIP A violation by Township; call to contact in Lancaster re: religious liberty support; prepare letter for Becket Fund, D.C. based organization dedicated to Protection freedom of religious expression for all religions; draft letter to commandant of the Army War College re: Peace Centre and involvement of War College students. 3.8 11/11/05 PLIO Reviewing with CCR. .5 11/13/05 CCR Email correspondence with client. .1 11/14/05 CCR Call to North Middleton re: zoning fees; finalize zoning application. .3 Statement of Services February 7, 2006 Page 3 11/14/05 PLIO Making a tax map; review with CCR and Tax Assessment sheets. .9 11/1 5/05 CCR Draft letter to North Middleton Township in support of zoning appeal; prepare list of adjoining property owners for application to zoning hearing board; review court order; prepare Notice to Attend and Testify. 1.2 11/15/05 PL4 Type info and envelopes; deliver appeal to North Middleton Township office .6 11/15/05 PL8 Prepare Notice to attend and certificate of service. .3 11/16/05 CCR Call from and to J. Hipp re: continuance of hearing; review correspondence. .3 11/16/05 PL8 Finalize notice to plead. .2 11/1 8/05 CCR Call from D. Miller; review preliminary objections; confirm P A law re: appropriateness of affirmative defenses being raised in context of preliminary objections; begin drafting pre-hearing Memorandum of Law. 1.3 11/20/05 CCR Research re: attorney-client privilege (solicilor and township) and exhaustion exceptions. 1.0 11/21/05 CCR Prepare Memorandum of Law in support of Motion for Preliminary Injunction. 2.3 11/22/05 CCR Prepare for hearing; outline testimony; draft First Amended Complaint; calls from opposing counsel; call to client; email correspondence with ACLU; research re: exhaustion or remedies, abstention, and jurisdictional issues. 7.0 11/22/05 HAD Review CCR's Brief; internal conference with CCR. .5 11/23/05 CCR Prepare direct examination; draft amended motion for special injunction; prepare witnesses; attend hearing; meet with opposing counsel; email correspondence with ACLU. 6.5 Statement of Services February 7, 2006 Page 4 11/23/05 IVO Office conference with CCR. .3 11/28/05 CCR Draft letter to Judge Hess; fax to opposing counsel. .4 11/30/05 CCR Email from and call to M. Williams re: Peace Centre hearing and status of litigation; call from U.S. Department of Justice; prepare overnight package to USDOJ; call from Pennsylvania Human Relations Commission (via CAIR); emails to M. Williams re: calls and status. 1.4 12/02/05 CCR Review P A law re: Human Relations Commission complaint option; call from S. Ludwig re: settlement; email to M. Williams; call from M. Williams; email to S. Ludwig. 1.0 12/07/05 CCR Call from Rabbi re: support for Peace Centre; email to M. Williams. .3 12/12/05 CCR Review proposed settlement agreement and release; draft summary for client. .4 12/13/05 CCR Email correspondence with ACLU. .2 12/22/05 CCR Review proposed edits to settlement agreement; call to M. Williams; call from and to S. Ludwig. .9 12/26/05 CCR Review and edit settlement agreement; email correspondence with M. Williams. 1.3 12/28/05 CCR Finalize settlement agreement; email to opposing counsel; call from opposing counsel; call to client. 1.0 01/03/06 CCR Prepare materials for hearing; calls from Zoning Hearing Board Solicitor; update research re: RLUIPA; review Third Circuit case law re: RLUIP A; draft report to Solicitor. 3.0 Statement of Services February 7, 2006 Page 5 01/04/06 CCR Call from S. Ludwig re: settlement agreement; calls from M. Rundle, Zoning Hearing Board Solicitor, re: hearing; review letter received from North Middleton Township re: variance application; email correspondence with Department of Justice and ACLU. 1.0 01/05/06 CCR Prepare for Zoning Hearing Board hearing; call from M. Williams. 2.0 01/05/06 CCR Travel to North Middleton Township; attend hearing; return travel. 2.5 01/06/06 CCR Research re: Sec. 1988 and post-hearing options; email correspondence with client re: outcome of hearing; correspondence with ACLU and opposing counsel. 1.7 01/13/06 CCR Review decision; fax to client. .2 02/03/06 CCR Conference with M. Collins re: attorneys' fees petition. .5 02/03/06 MJC Conference with CCR. .2 02/06/06 CCR Review and edit attorneys' fees petition; call from S. Ludwig. 1.2 02/06/06 MJC Organizing file; reviewing the procedure for seeking attorneys fees. 4.6 02/06/06 MJC Revise petition to recover attorneys fees; gather exhibits. .9 02/06/06 PL8 Type statement. .7 02/07/06 MJC Adding Pennsylvania Religious Freedom Protection Act claim and update Petition with Trusdell and Buckhannon. 3.4 Statement of Services February 7, 2006 Page 6 CCR Carl C. Risch (Shareholder) 57.8 lVO Ivo V. Otto (Shareholder) 1.1 HAD Hillary A. Dean (Associale) .5 MJC Michael J. Collins (Associate) 9.4 PL4 Jacqueline A. Decker (Paralegal) .9 PL8 Mary M. Price (Paralegal) 1.2 PLIO Laura A. Marovich (Paralegal) 2.5 COSTS ADVANCED: 11/09/05 11/14/05 II/IS/OS 12122/05 Filing fee for Complaint Copies of Tax Map Filing fee for Zoning Application West Law electronic research 11/18/05; 11119/05; 11/20/05; 11/21/05 and 11/22/05 $ 55.50 3.50 300.00 207.59 TOTAL COSTS ADVANCED $566.59 CERTIFICATE OF SERVICE I, Michael J. Collins, an authorized agent for Martson Deardorff Williams & Otto, hereby certifY that a copy of the foregoing Petition to Recover Attorneys Fees Pursuant to 42 U.S.C.A. S 1 988(b ) was served this date by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Steven K. Ludwig, Esquire Fox Rothschild, LLP 2000 Market St., loth Floor Philadelphia, PA 19103-3291 MARTS ON DEARDORFF WILLIAMS & OTTO By 71LL1 k~~ Carl C. Risch, Esquire Attorney LD. No. 75901 Michael J. Collins, Esquire Attorney LD. No. 200427 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: February 8, 2006 Attorneys for Plaintiff (-) o -n ,., --4 r"1! r: C:j ii-"~ , -f);_,"-"! OJ ... ., "" t..,:-:) ;';'" ~:c ..< THE PEACE CENTRE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 05-5831 TOWNSHIP OF NORTH MIDDLETON, Defendant IN RE: PLAINTIFF'S PETITION TO RECOVER ATTORNEYS' FEES ORDER AND NOW, this I'r day of February, 2006, a brief hearing on the within petition to recover attorneys' fees is set for Thursday, April 27, 2006, at I] :00 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, Cumberland County, Pennsylvania. BY THE COURT, Carl Risch, Esquire F or the Plaintiff Steve K. Ludwig, Esquire For North Middleton Towns ip ) - I~(;~ O~ .~. fl/.s :rlm }. ., ~'j ,""' !Jd .'..., f' .::.. n:1:1 SLGZ lr, ::.U TO: CARL C. RISCH. ESQUIRE YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO DEFENDANT'S ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT WITH NEW MATTER WITHIN TWENTY (20) DA YS FROM SERVICE HEREOF OR A JUDGMENT MA Y BE ENTERED AGAINST YOU. STE , ,;" Fox Rothschild LLP By: Steven K. Ludwig, Esquire Identification No. 40417 2000 Market Street, Tenth Floor Philadelphia, PA 19103-3291 (215) 299-2164 Attorney for Defendant Township of North Middleton THE PEACE CENTRE, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION No.: 05-5831 THE TOWNSHIP OF NORTH MIDDLETON, Defendant. DEFENDANT'S ANSWER TO PLAINTIFF'S }<'IRST AMENDED COMPLAINT WITH NEW MATTER Defendant, The Township of North Middleton ("Defendant" or "Township"), by its undersigned counsel, answers Plaintiffs First Amended Complaint as follows: 1. Admitted. 2. Denied. After reasonable investigation, Defendant is without sufficient infonnation to respond to the averments of Paragraph 2 of Plaintiffs First Amended Complaint. 3. Admitted. 4. Admitted in part; denied in part. It is admitted that Plaintiff is the owner of 505 Cavalry Road located within North Middleton Township and that Plaintiff operates a place of 2 worship at that location. After reasonable investigation, Defendant is without sufficient information to respond to the remaining averments of Paragraph 4 and they are denied. 5. Admitted in part; denied in part. It is admitted that on or about October 20,2005, thc Township of North Middleton, by and through its zoning officer, sent the letter appended to Plaintiffs First Amended Complaint as Exhibit A to Plaintiff at 505 Cavalry Road. The remaining avcrmcnts are denied as a mischaracterization of the action taken which is set forth in full in Exhibit A. 6. Admitted in part; denied in part. While it is admitted that a place of worship is not permitted in the zoning classification, T- l, without the securing of a variance from the Zoning Hearing Board, it is denied that Plaintiff is in violation of the Township's Zoning Code because Plaintiff has sccured a variance from the Zoning Hearing Board. 7. Denied. The averments of Paragraph 7 are denied as conclusions oflaw to which no response is required. 8. Denied. The averments of Paragraph 8 are denied as conclusions of law to which no response is required. 9. Denied. The averments of Paragraph 9 are denied as conclusions oflaw to which no response is requircd. 10. Denied. The averments of Paragraph 10 are denied as conclusions of law to which no response is required. 11. Denied. The averments of Paragraph 11 are denied as conclusions oflaw to which no response is required. 12. Denied. The averments of Paragraph 12 are denied as conclusions oflaw to which no response is required. 3 . 13. Denied. The averments of Paragraph 13 are denied as conclusions oflaw to which no response is required. 14. Denied. The averments of Paragraph 14 are denied as conclusions oflaw to which no response is required. 15. Denied. The averments of Paragraph 15 are denied as conclusions oflaw to which no response is required. 16. Denied. The averments of Paragraph 16 are denied as conclusions of law to which no response is required. 17. Denied. The averments of Paragraph 17 are denied as conclusions of law to which no response is required. 18. Denied. The averments of Paragraph 18 are denied as conclusions of law to which no response is required. 19. Denied. It is specifically denied that North Middleton Township directed Plaintiff to cease holding religious services at 505 Cavalry Road and that it threatened legal action against the Plaintiff for failure to obey. The remaining averments are of Paragraph 19 are denied as conclusions of law to which no response is required. 20. Denied. The averments of Paragraph 20 are denied as conclusions oflaw to which no response is required. 21. Denied. The averments of Paragraph 21 are denied as conclusions of law to which no response is required. WHEREFORE, this Court is requested to deny the reliefrequested by Plaintiff, dismiss Plaintiffs First Amended Complaint and to award such other relief as may be just and proper. NEW MATTER By way of further answer, the Defendant, The Township of North Middleton, avers the following New Matter: 22. On November IS, 2005, Plaintiff filed an application with Zoning Hearing Board of North Middleton Township to, inter alia, grant the Peace Centre a variance to operate a place of worship at 505 Cavalry Road. A true and correct copy of the application is appended hereto as Exhibit A. 23. On January 4,2006, Defendant sent a letter to the Zoning Hearing Board of North Middleton Township recommending that the variance be granted. A true and correct copy of the letter is appended hereto as Exhibit B. 24. On January 5, 2006, the North Middleton Township Zoning Hearing Board held a hearing on Plaintiffs application. Plaintiff was represented by Carl Risch, Esquire at the January 5.2006 hearing. 25. A true and correct copy of the minutes from the meeting conducted by the North Middleton Township Zoning Hearing Board is appended hereto as Exhibit C. 26. The letter submitted by Defendant (Exhibit B) was made part of the record by the Zoning Hearing Board of North Middleton Township. 27. Following the receipt of testimony, the Zoning Hearing Board granted the variance sought by Plaintiff. 28. On January 5, 2006 the Zoning Hearing Board issued its written determination concerning the grant of a variance to Plaintiff to operate a place of worship at 505 Cavalry Road. A true and correct copy ofthe written determination issued by the North Middleton Township Zoning Hearing Board is appended hereto as Exhibit D. 4 29. No appeal has been filed with the Court of Common Pleas challenging the Zoning Hearing Board's decision to grant the variance to Plaintiff. 30. Because Plaintiff has secured a variance, this matter is moot. 31. The Township never initiated any enforcement action against Plaintiff seeking the imposition of fines and/or equitable relief in any court of law. 32. Plaintiff is not a prevailing party eligible to receive counsel fees and costs. 33. Defendant did not violate any of Plaintiffs statutory or constitutional rights. 34. Plaintiff failed to give to Defendant timely notice required by Pennsylvania law of its belief that its rights were being violated. 35. At the time the Complaint was filed, Plaintiff had failed to exhaust appropriate administrative remedies. 36. The Township acted in a manner which was proper, reasonable, lawful and in the exercise of good faith. WHEREFORE, this Court is requested to deny the relief requested by Plaintiff, dismiss Plaintiffs First Amended Complaint and to award such other relief as may be just and proper. /' S ~ . U dwig, Es Fox Rothschild LLP ( 2000 Market Street, loth Floor Philadelphia, PA 19103-3291 215-299-2164 Dated: February 14, 2006 5 )jlll ~~ Deborah A Ealer VERIFICATION Dcborah A Baler, states that she is the Township Manager of the Township of North Middleton; that she is authorized to take this verification on its behalf; that she is acquainted with the facts set fOTth in the fOTegoing Answers to Plaintiff s First Amendcd Complaint; that they aTe true and correct to tbe best of her knowledge, information and belief; and that this statement is made subject to the penalties of 18 Pa. c..s. ~ 4904 relating to unsworn falsification to authorities Dated: FebruaTY 14,2006 ...---- t=:-x Iu bif A- ATTORNEYS & COUNSELLORS AT LAW 1 O,EAST HIGH STREET CARLISLE, PENNSYLVANIA 17013 Wn..LIAM F. MARrsoN JOHN B. FowuiR III DANIEL K. DEARDORFf THOMAS J. WILLIAMS'" Ivo V. OTTO 1II GEORGE R FALLER JR. >I< . CARL C. RIsCH DAVID A. FlTZSlMONS CHRISTOPHER E. RICE JENNlFE~ L. SPEARS HILLARY A. DEAN TELEPHONE fACSlMlLE INTERNET (717) 243-3341 (717) 243-1850 www.mdwo.com ~BOARD CarimF.D CiVlLTRIAL Sl'ECtAUST November 15, 2005 Zoning Hearing Board of North Middleton, TOwnship 2051 Spring Road Carlisle, P A 17013 RE: The Pea<;e Centte: Appeitloft>ecisio1?- of Zoning Officer inI-IZoning Distric:t and, altetnatively, a Reqiiest' fOr Vai:iaiJ.ce' .... 5 05 bitlv~ R6ad, N,orthMiddleton TOwllshi;p,PerinsyIvania Tax P:rrcel No: 29~i8-1~157-021.-EX . ,. .'. T(jwho1h'itmay concern: , ' ,. , , - , . , . . . . ',. .... Plyase be aclvi$edthat~sIawftifur~presyntsThePea~eGentre. .Enclosedare,~even (1) . copies of aZoning I-!earingA:ppliCa~on;the ~3PQ.OOa'pplisation, fee, and aIiS! ofadjoiningprop~t'o/ '. owners. ThePeace Centrejs primar1IYappeiilip~.from a decisiotJ. of theZoningQfficeriliider 53 P.S.S.1Q909: 1 (a)(3).H6weve.r, asiiliepWtive ~eJief,t.qe P~ace Cent,rei& requestingtha,tthe Z;bnjn~ He<tring Board gr'l11.t the. apj)licarl,t aYari~cdooperateapia:ce of worship at the aboveadth-e~s: . . ' " - . I, '-. ,'-'- -.-"',',-,." ........-. ,,\"- ,'- . ....,.',., ',. ..,..,'., . ..' -.: ":"- ::.' . ~imply put, prohibitiQns on(eligf()lIs~s.em:q]yinth.e To"YIl$hip 's}l zoning cjistrictviolate . ..' ihe federal Religious LMd Us~and.41sJiMiQll~iZedRe(soilse..ct~f20QQ (42tJ;8,.C.J2000cc); th~ First Amend1nint to the <:pusti.tutlqn ,of the 1,!n'it~dStates; and the Cpustitutjonof' 'the Comrno~wealih ofPennsy]vania.1h.epi;1"I\littedand<io~ditio~arilses listed for theI- izol)e91earIy ". permit non-religiousas$em.bly()f)?ersdus'in~tzone, To peimithon~re1\gio\ls asse~blY 'wli~hib~ .' Township prohibits rellgj.ous asse1hbly is a d~aryiojati9n ofibe law. This appeitl toth~)l:oning, Hearing Boardis theTOVfl1sllip' sOPPorhlnityJbcQ:rr~ctjts po~tloi\. an,d av(}ida ~ 1983acilonbeit).g . conuhenced with the United Staresl;>istri6t Court for the Middle District ofPehnsylvania. .' .,' ....,. . . . . . . . - . . While the prohibition of religio',\s asse1hbly als()~iQ\at~the }'eilllsylvania Religiousfreedo1h . Protection Act, this matter iscWrentlybefore the Court of Coinmon PleasofCurnberl~d.Col.illty, which properly has originalju:risdictioi:l1Of~nsider that c:lai:n. . . Very truly Your~, ." MARTSON DEARDORFF WILLIAMS & OTTO U2QS)n Carl C. Risch cc: James Bogar, Esquire Michael Rundle, Esquire Enclosure F:\FlLES\DATAfILE\GenenlICurrenII11754.I_wbl IN FOR M AT ION APVICE . ApVOCACY 8M , ~ . NORTH MIDDLETON TOWNSHIP CUMBERLAND COllNTY , PENNSYLVANIA ZONING HEARING APPLICATION 1. I hereby apply for: (identify request and complete Ordinance section.) Alternative Relief a_ ) variance x Ordinance Section 204-2), (B) b_ ) Special Exception Ordinance Section Primary Relief c.) Appeal from Zoning Officer, other Municipal body or officiaL X Ordinance Sectionc2o-~n1tJ)' d..-) . S4.J.bstantive Challenge:. Val.idi-ty...,c~.Map/Zcn-ing Ordinance Ordinance section Phone No. The peace Centre 505 . Ca.V1l,l.1:v'll,oad Carlisle, PA 17013 ( 717 .) 243-1347 2. Applicant's Name Address J . Owner I S Name Address Sane Phone No_ ( 4. Applicant's Attorney Ca,rl c. :RisCh, Esg;. 10 East Hiqh Street Carlisle. PA 17013 5_ Location of Property Affected 505 Cava1..ty Road 6. Detailed Description of Use of Land: a.) Zoning District I-1 b.) Present Use Spiritual center,' Islamic sch=l (a=ording to the Township), a . place of worRhip. Same as =rent use anCl c. ) Proposed Use do) Expected Period of Time of Use: Perinai,ent. Date \\-\S-C:iS' Date ~ , . 7. Reason for Request: (Insert Attach1nent if Necessary) See attached letter. 8 _ All required additional infonnation and exhibits in compliance with SECTION 604 - ZONING REARING BOARD'S FUNCTIONS of the North Middleton Township Zoning Ordinance_ 9. FEES: a.) Special trse or Variance Request in; (-1) Conservation District (n AgricultUral District (3) Agricultural Holding District (4) Suburban Residential District (5) Hi-Density Residential District . ~ount Due: $ 200_00 b. ) special Use or .Var;iance Request in: . (ll' Neighborhood- CUlUlllercial District (2) Highway conunercial District (J) Campus Industrial District (4) Industrial District . (6) Scenic River District Amount Due; $ 300.00 FEE OF :;; '. RECEIVED. I certify the above information and submitted exhibits to be true, co=ect and cDlDplete_ Any information I have failed to supply may be grounds for the Zoning Hearing board to dis1I1iss application_ I or We agree the Hearing by the Board on this Application may be Tape Recorded rather than stenographically Recorded. (strike ou< if "ot Agree" ~ Applicant - Owner - Agent Township Official LIST OF ADJOINING PROPERTY OWNERS 1. Margaret B. Bushey, Trusteee c/o The Carlisle Kitcheu Center 29-07-0467-003 1034 Harrisburg Pike Carlisle, P A 17013 2. Robert Frey & Linwood B. Phillips, Jr. c/o Frey & Tiley 5 South Hanover Street Carlisle, PA 17013 3. The Commonwealth of Pennsylvania National Guard Annory 504 Cavalry Road Carlisle, P A 17013 ~ ? o '" 0: E:~' brf 13 NORTH IDDlETO OWNSHI NORTH MIDDLETON TOWNSHIP 2051 Spring Road, Carlisle. PA 17013-1059 OFFICE (717) 243-8550 . FAX (717) 243-1135 · POLICE (717) 243-7910 January 4. 2006 Chester W. 13ilbnan Chairman, Zonin.g Hearing Bo8ro 1837 Sterretts Gap AVe. Car.\i$le PA 17013 RE: Peace Centre Application Dear Chester: We, the North Middleton Township Supervisors. support the Peace Cet1tre operating a place of worship. We recommended to the Peace Centre what actions they should take inomer to comply with North Middleton Township Ordinances. The Pellce Centre, by their application to this Zonin.g HearlngBoard, has taken one of these actions. Therefore the North Midc11eton Township Supervisors recommet1d this variance be granted. Sincerely, 14/~ l"-f~ William R. Myers Vice-Chairman Cc: Board of Supervisors Steve Ludwig Carl Risch Mike Rundle Ryan Hovis Mark Allshouse ~ 0' ;:.: () f)( \c,br+ L North Middleton Township ZoninQ HearinQ Board Township Building 2051 Spring Road Carlisle, PA 17013 Minutes of the Zoning Hearing Board January 5, 2006 The meeting was held at the North Middleton Township Building on Spring Road, in Carlisle, PA. Attendance Board Members-Henry Weeks (Chairman), J. Wolford Herman (Vice-Chairman), and Chester Billman (Secretary) Solicitor-Michael Rundle Assistant Codes Enforcement Officer-Ryan Hovis Tracy Lee-Reporter, 118 Hill Lane Tom Dempsey and son Mike-111B Partridge Circle Carl Risch-10 E. High Street Jennifer Marrs-The Sentinel, 456 East North Street Dave Marrs-The Sentinel, 456 East North Street Paula Knudsen-105 North Front Street, Harrisburg, PA 17101 Janet Thrasher-59 Faith Circle Jim Hare-91 Longstreet Drive, Carlisle, PA Jehad Ewideh-33 W. Willow Street Michelle Kastriba-33 W. Willow Street Ameerah Adeseun-115 S. 4th Street Yasmine Adeseun-115 S. 4th Street Abdul-Quadri Adeseun-115 S. 4th Street Amadou Seyadou-142 N. East Street, Carlisle, PA Shafiq Williams-1725 Douglas Drive Abdelaziz Elkouri-505 Cavalry Road Akbar M. Vermani-505 Cavalry Road Michael Williams-1725 Douglas Drive Adis Prasko-1424 Bradley Drive 114, Carlisle, PA Enver Sejmanovic-308 North West Street, Carlisle, PA Damir Biscic-214 Hummel Avenue, Lemoyne, PA 17043 Sabit Sisic-4 Marsall Drive, Camp Hill, PA 17011 Osman Meskic-609 Hamilton Street, Carlisle, PA Marcus Brevik-373 West North Street #2, Carlisle, PA Nuri Delen-2230 South Point Drive, Hummelstown, PA 17036 Dan Miller-The Patriot News Aishah Baharuddin-Wiliiams-1725 Douglas Drive, Carlisle Hafiz Williams-1725 Douglas Drive, Carlisle, PA Mary Ziegler-331 Allen Street, Carlisle, PA Salem Almazrooec Hannache Nacer Ferdinand Jones-445 N. West Street Call To Order Minutes of the NMT Zoning Hearing Board, January 5, 2006 1 Minutes of the NMT Zouing Heariug Board, January 5, 2006 2 Chairman (for 2005) Chester Billman called the meeting to order at 7:00 p.m., and asked Mr. Hovis to lead the Pledge of Allegiance. Reoraanization of the Zoning Hearing Board Solicitor Michael Rundle asked for any nominations for Chairman of the Zoning Hearing Board. Chester Billman nominated Henry Weeks. J. Wolford Herman seconded Mr. Billman's motion. Mr. Rundle asked for any other nominations for Chairman. None were offered. Mr. Rundle asked for a motion to close nominations. Chester Billman moved to close nominations. This was seconded by Mr. Herman. Mr. Billman and Mr. Herman voted in favor of the motion to close the nominations. Mr. Billman and Mr. Herman voted in favor of the nomination of Henry Weeks. Mr. Weeks accepted the position of Chairman of the Zoning Hearing Board. Hearina For 505 Cavalry Road: Appeal of Zonina Officer #05-13 (Recording Secretary's note: Much of the testimony and questioning that follows was taken verbatim from the audio recording.) Chairman Weeks gave a brief explanation of how the hearing would be conducted. He introduced Solicitor Rundle. Mr. Rundle explained that the hearing this evening is for the Application of The Peace Centre primarily as an appeal from a determination of the Zoning Officer, and secondarily for a variance under Section 204-21 (B) of the North Middleton Township Zoning Ordinance. The Applicant's name is The Peace Centre with an address of 505 Cavalry Road, Carlisle. The Owner's name is the same; The Peace Centre. The Applicant's Attorney is Carl Risch, Esquire. The property is located at 505 Cavalry Road. This property is located in the 1-1 Zoning District. The present use is for a spiritual center, an Islamic school, and a place of worship. The proposed use is the same as the current use, and the expected period of time of use is permanent. The fees have been paid and the Application was filed on November 15, 2005. This was according to the Application as read by Mr. Rundle. Mr. Rundle called Ryan Hovis. Mr. Hovis was sworn in and identified himself as Ryan Hovis. He stated that his position with the Township is Assistant Codes Enforcement Officer. Mr. Rundle displayed a document that he had marked as Township Exhibit #1. He asked Mr. Hovis to identify T-1. Mr. Hovis testified that this document is an enforcement notice from Paul Fegley, the Zoning Officer, to The Peace Centre. Mr. Rundle asked for the date of the notice. Mr. Hovis gave this as being October 20, 2005. Mr. Rundle asked Mr. Hovis if the Township intends to prosecute the enforcement notice. Mr. Hovis replied, "No, they do not." Mr. Rundle then displayed what had been marked as Township Exhibit #2. He asked Mr. Hovis to identify this document. Mr. Hovis testified that this is a letter from the Board of Supervisors to the Zoning Hearing Board, and that It is addressed to Chester Billman, the Chairman of the Zoning Hearing Board. Mr. Rundle noted that the letter is relatively short. He asked Mr. Hovis to read it into the record. Mr. Hovis noted that the letter is dated January 4, 2006. He read the letter as follows: . "Dear Chester, We the North Middleton Township Supervisors support The Peace Centre operating a place of worship. We recommend to the Peace Centre what actions they should take in order to comply with North Middleton Township Ordinance. The Peace Centre, by their application to the Zoning Hearing Board has taken one of these actions. Therefore. the North Middleton Township Supervisors recommend this variance be granted. " Mr. Hovis noted that the letter was signed by Biil Myers, the Vice-Chairman of the Board of Supervisors. Mr. Rundle asked Mr. Hovis if this hearing has been properly advertised. Mr. Hovis replied, "Ves it has." Mr. Minutes of the NMT Zoning Hearing Board, January 5, 2006 3 Rundle asked Mr. Hovis if the property in question has been properly posted. Again, Mr. Hovis replied, "Yes it has." Mr. Rundle asked Mr. Risch if he had any questions for Mr. Hovis. Mr. Risch came forward and identified himself as the attorney for The Peace Centre. Mr. Risch asked Mr. Hovis if the Township has rescinded the enforcement notice dated October 20,2005. Mr. Hovis replied, "I do not know that." Mr. Risch asked Mr. Hovis when he was given the authority to testify on behalf of the Township. Mr. Hovis stated that he represents the Township every night at the Zoning Hearing Board. Mr. Risch asked if the Board of Supervisors, in the presence of Mr. Hovis, discussed and decided that it would not enforce or prosecute the enforcement notice. Mr. Hovis replied, "No." Mr. Risch then asked Mr. Hovis how he knows that the Township does not intend to prosecute the enforcement notice. Mr. Hovis stated, "I'm not sure." Mr. Risch asked Mr. Hovis how he can testify that the Township does not have any intention of prosecuting or enforcing the enforcement notice. Mr. Hovis testified that the Codes Department is not planning on enforcing it. Mr. Risch asked if it was correct that the enforcement notice of October 20th has not been rescinded. Mr. Hovis stated, "I told you that I didn't know that." Mr. Risch asked Mr. Hovis if it was correct that he doesn't know if it's been rescinded or not. Mr. Hovis replied, "That's correct." Mr. Risch asked Mr. Hovis if he is using the lelter from the Board of Supervisors to justify his testimony that the Township does not intend to enforce it. Mr. Hovis stated, "Sure." Mr. Risch asked Mr. Hovis If it was correct that he was not aware or any official action taken by the Board of Supervisors directing him or the Codes Officer Mr. Fegley not to take action against The Peace Centre under the letter of October 20th. Mr. Hovis replied, "That is correct." Mr. Risch had no further questions. Mr. Rundle asked for any questions from Board members. Mr. Weeks asked if it is important to put on the record what the enforcement is about. Mr. Rundle stated that it is not, and that the document is on the record and will speak for itself. The Board had no further questions. Mr. Rundle asked for any questions from the public. No member of the public came forward. Mr. Rundle then stated: "Mr. Chairman, in light of the fact that the Township is not prosecuting the enforcement notice, in my legal opinion it would be appropriate to have a motion to sustain the appeal of the Applicant prior to the determination of the Zoning Hearing Officers." Mr. Weeks asked if it is important to phrase the basis of the appeal. Mr. Rundle explained that the Township has the burden of going forward with the evidence and the burden of proof in an enforcement action. He further noted that the Township is not prosecuting the enforcement action, consequently the Township has not met its burden of proof. Mr. Rundle stated that this is why at this time a motion to sustain the appeal would be appropriate. Mr. Weeks asked the Board If there is such an offer. Mr. Billman offered a motion. Mr. Rundle assisted with the phrasing. . Chester Bi/fman moved to sustain the appeal of the Applicant to the determination of the Zoning Officer as set forth in the letter of October 20, 2005. Mr. Weeks asked if there was a second to the motion. At this point Mr. Herman questioned what the Zoning Hearing Board was being asked to do. Mr. Rundle explained that one of the functions of the Zoning Hearing Board is to hear appeals of property owners from determinations, particularly adverse determinations of the Zoning Officer. He stated that the letter of October 20, 2005 Is such a determination. Mr. Rundle further stated that a property owner has properly filed an appeai of that determination, and it is the function of this board to determine whether the Township has met its burden in establishing the infraction of the Zoning Ordinance as set forth in the Zoning Officer's determination letter. He added that just as the Board is to hear variances, special exceptions, etc., one of the Board's functions is to hear an appeal of the determination of the Zoning Officer. Mr. Herman said he feels that the Zoning Hearing Board is to receive applications and make determinations on them, and not necessarily on what the Township has done in the past on things that don't involve the Zoning Hearing Board. Minutes of the NMT Zoning Hearing Board, January 5, 2006 4 At this point Mr. Weeks said he would be glad to second the motion, and that this will allow discussion of the content and the merit. He stated that for the sake of moving it forward, he would second Mr. Billman's motion. Mr. Herman and Mr. Billman agreed. Mr. Weeks referred to Section 204-126 and pointed out what Mr. Rundle was talking about. He noted that in this case the Applicant is appealing a decision that was previously rendered. He stated that the Township has so indicated through its designee that it is not going to pursue that. Mr. Weeks also noted that the Board of Supervisors have said that they are in favor of giving consideration to a request for variance as an alternative to pursuit of what was in the letter of October 20th. He stated that this is creating an option for these people to come before the Board to present their case for a variance. Mr. Weeks added that this is the way he reads it. He also stated that before this can be done, the issue of the valid basis for the appeal and whether or not the Township has proved its case has to be disposed of. He mentioned that the Township has reversed its case in one sense of the word. Mr. Herman said his observation was that he couldn't understand why the Township didn't rescind it if that was Ihe case, instead of sending it to the Zoning Hearing Board. Mr. Weeks suggested hearing the merits and making a decision based on law. Mr. Herman replied, "Good enough." Mr. Rundle asked Chairman Weeks to call for the vote on the motion. Mr. Weeks asked for any further discussion. None was offered. Mr. Weeks asked for the motion to be restated. Mr. Rundle stated: "The motion was to sustain the appeal of the property owner to the determination of the Zoning Officer as set forth in the letter of October 20, 2005." Mr. Weeks asked for a vote. Henry Weeks and Chester Billman voted in favor of the motion. J. Wolford Herman voted "nay." The motion carried. Mr. Rundle asked Mr. Risch if he wished to proceed on the Application for the variance. Mr. .Risch came forward. He stated that given what just transpired he wasn't exactly sure what the Township's position is on . this. He said that If the Township doesn't stand behind its enforcement notice of October 20th, and has sent a letter basically concurring with the variance, he respectfully disagrees that the Township is not still standing behind a valid enforcement notice. At this point Mr. Weeks referred to Mr. Risch's comment that he disagrees with the decision the Board just made, and asked what the reason was for Mr. Risch's decision to disagree. Mr. Risch replied that the basis is that the cease and desist enforcement notice is still there and apparently valid. He stated that this position has not been invalidated by this Board, which it is statutorily empowered to do. Mr. Risch further stated that nothing prohibits the Township from issuing a future cease and desist letter or enforcement notice for the exact same thing next month. At this point Mr. Rundle interjected, "Hence the reason for your variance application, Mr. Risch." Mr. Risch replied that he would rather see the Board make a determination that the decision of the Township In its enforcement notice and the Zoning Officer was invalid under Federal law and State law, so as to prohibit them from doing this again without tinkering with the Ordinance and issuing a variance. Mr. Risch said he sees a variance as an extraordinary remedy. He stated that he thought that the first prong in the Application, which was an appeal from the determination of the Zoning Officer, would have permitted this Board under the Municipalities Planning Code to grant relief without going to the next step of issuing of variance. At this point Mr. Rundle stated, "And you've won Mr. Risch, the appeal has been sustained. Good job. Now let's move on to your variance." Mr. Risch continued and stated that if indeed the variance application is not granted, he believed that based on the first decision, this does not correct the problem for the Township, and this would end up back in the court system after the variance, if it was to be rejected. Mr. Rundle again asked to hear the variance request. Mr. Risch stated that the variance request was very clear and is a request to permit The Peace Centre to operate as a place of worship in the 1-1 zone, to avoid the Township, as a municipal government, from violating the Federal Religious Land Use and Institutionalized Persons Act of 2000. Mr. Risch stated the following: Minutes of the NMT Zoning Hearing Board, January 5, 2006 5 "No government, including North Middleton Township, which is the government, shall impose a land use regulation in a manner which treats a religious assembly or institution, on less than equal terms with a non- religious assembly or institution. " Mr. Risch went on to state that the 1-1 zone permits non-religious assembly. He listed some of these as schools, clubs, daycare centers, hospitals, and convention centers. Mr. Risch said that there are lots of assembly uses thai are permitted either by Conditional Use, Special Exception, or as of right in the 1.1 zone: He stated that because of that, the Federal law says that this government cannot use its zoning power to restrict religious assembly or treat religious assembly different from non-religious assembly. Mr. Risch said that the variance exists in our system as a "safety valve, in a way:' to prevent a municipality from possibly inadvertently violating the Federal Constitution, often through confiscatory acts. He stated that the variance also exists to help a municipality find a way, when its ordinance is defective in some way, to permit a particular land use to exist in a zone where if you would prohibit it, that this would avoid needing to go into the Federal system to seek relief. Mr. Risch stated that he also believes this violates the Religious Freedom Protection Act, which is a Pennsylvania law, and also the Constitution of the United States. Mr. Risch pointed out Michael Williams and explained that he is here to testify about what The Peace Centre is and what it does. Mr. Risch said he felt that it Is important to get it on the record that it is a religious assembly and a religious institution, so that it is clear it is that type of use. He called Mr. Williams. Michael Williams came forward. The witness was sworn in and identified himself as Michael Williams, of 1725 Douglas Drive. He described himself as one of the principal founders of The Peace Centre, and currently In charge of some of the administrative functions. Mr. Rundle inquired about the nature of the legal entity of The Peace Centre, and asked if it is a nonprofit corporation. Mr. Williams replied, "It is, yes." Mr. Risch asked if The Peace Centre is exempt from Federal taxation laws. Mr. Williams replied that, "We are exempt under Section 501(c)(3) of the income tax code." Mr. Risch asked Mr. Williams to describe the mission of The Peace Centre and to explain the activities that take place at 505 Cavalry Road. Mr. Williams testified that The Peace Centre is a religious group, a religious institution in that it provides education as well as other religious services including worship and counseling. He testified that the denomination is Islamic. Mr. Risch asked when The Peace Centre was founded. Mr. Williams stated that he believed that The Peace Centre was incorporated in 2002. He testified that The Peace Centre was purchased in September of 2003, and was occupied in December of 2003. Mr. Risch asked Mr. Williams to explain to the Zoning Hearing Board the circumstances surrounding the acquisition of The Peace Centre. Mr. Williams testified that an attempt was made to purchase a piece of land in South Middleton Township, but that this was backed out of when neighbors complained. He stated that after that, it was decided that the best thing to do would be to find a place which was already built. Mr. Williams testified that about three months later the property at 505 Cavalry Road came up for sale. He stated that they were told at the time by the agent that the operation of a private institution or private school was a permitted use in the 1-1 zone, and that worship would be considered an accessory use. He testified that based upon that, the property was purchased. Mr. Risch asked Mr. Williams if there had been any financial help in purchasing the land. Mr. Williams testified that a "very generous donation" had been received for the purchase price of the land. Mr. Risch asked Mr. Williams to explain the activities that are held at The Peace Centre. Mr. Williams explained that, "In our religion we pray five times a day...and those prayers should be done in the mosque, if possible." He stated that prayers are held five times a day at The Centre, and in addition to that adult classes are held in the evening hours just about every night. He further testified that social gatherings have been held, and marital advice has been offered. Mr. Williams mentioned that a wedding had almost been held. He also noted that they "mow the lawn a lot:' since it is a big piece of property. Mr. Risch asked if there is one day when there is more prayer than on other days. Mr. Williams stated that the congregational prayer for Muslims is on Friday afternoon, roughly at noon time, and that this is when the largest group of people would be there. Mr. Risch asked for the approximate number of people. Mr. Williams testified that they may get 25 cars, and 35 to 40 people at the most, and only on Fridays. Mr. Risch asked Mr. Williams to explain the details of what happens at these prayer services. Mr. Williams explained that each prayer service happens at a specific time each day, and people arrive and have to wash themselves in Minutes of the NMT Zoning Hearing Board, January 5, 2006 6 a ritual fashion. He stated that this requires having water and restrooms available. He explained that the actual prayer takes 5-10 minutes, depending on the time of day. Mr. Williams said that people normally leave after the prayer, and are there for 10-15 minutes at a time most of the day. He stated that when the time for sunset prayer comes, people wili come and sometimes stay after that until the night time prayer, which is when the adult classes are held. Mr. Rundle asked for the five prayer times. The following paragraph is a summary of the explanation given by Mr. Williams: The first time is from the dawn until the rising of the sun. That would be called the dawn prayer. The second prayer begins when the sun is at its zenith, which is midday, solar noon. It would go up until approximately half the time between noon and sunset. That would be the second time of day. The third time of day would begin when the second time ends, roughly halfway between the zenith and the sunset. It would end just before sunset. The fourth time begins at sunset and lasts as long as the red color remains in the sky. The fifth prayer begins when the stars come out, and theoretically can go all the way up until dawn, but most people consider it best to be prayed before midnight. Mr. Risch asked if The Peace Centre practices having calls to prayer. Mr. Williams replied, "We do, yes." Mr. Risch asked if there have ever been any complaints from neighbors. Mr. Williams testified that, 'We've never received any complaints whatsoever." Mr. Risch asked if receiving the letter of October 20th affected The Peace Centre or its members in any way in regard to the worship services. At this point Mr. Rundle stated, "I don't believe we are here on the enforcement notice at this point in the proceedings." Mr. Risch replied that the letter that has not been rescinded to his knowledge, and the Township's official position on that letter, which is that it does not know if it's been rescinded, could still affect The Peace Centre. He added that this could go to any hardship issues that The Peace Centre has been suffering. Mr. Williams responded to Mr. Risch's question about the effects of the enforcement letter of October 20th. The following paragraph is a summary of Mr. Williams' testimony at this point: It is hard to quantify if it had any effect, but we certainly took it seriously in the sense that when you receive a letter from the government, you take it seriously. So we thought that the Township had the authority to close us down, which of course could have had a substantial financial impact on us, as well as a religious impact. We did feel we had to take some sort of legal action. I had attended a meeting earlier with Township officials and when I was told that we had to stop praying there I flatly said that I don't really think you have the authority to say that. When we did receive the cease and desist notice, it was kind of a shock to me because we thought we had tried in good faith to resolve our issues up until that point. Some people were upset and concerned. For a short time, at least a month or so, we had problems getting people to be excited about their volunteer work. This is very important to an organization like us. If they think they're going to be closed do",,/) it's difficult for them to continue donations and to continue giving time and effort to maintain the place. We did notice a drop in those things, so we felt we had to do something and that's why we pursued the action that we did, hoping that we could claim our rights under whatever laws we thought we had rights under. That's about all. It would not be good for people to say that I stopped coming to themosque because somebody said I couldn't come there. I don't think any Muslim would actually say that, but it was evIdent that some people had doubts about the future of the place, which did have a certain impact on us for a short time, until it became widely known that we were going to try to fight this. . Mr. Risch asked if The Peace Centre has any expansion plans for the building. Mr. Williams testified that the Centre would like to renovate and build a proper prayer hall. He noted that people are now praying in a living room. Mr. Rundle asked Mr. Risch if the witness could describe what is on the property now. Mr. Williams testified that the land is about 4 acres and has a long driveway that goes up to a parking area that can hold approximately 8-10 cars. He stated that the property has a four-bedroom house which is approximateiy 2600 square feet, and is where the activities are conducted. He noted that there il; a swimming pool on the property which has not been used and will probably be dug up. Mr. Williams further testified that there is a billboard on the property along the Turnpike, and a stand-alone garage. He also mentioned a small sign. Mr. Williams said that he would like to renovate the structure by adding a proper prayer hall, and perhaps a library that can be used for books and for things like classes and lectures. He also testified that they would '. like to expand the parking. Mr. Williams testified that this is the extent of their plans right now. He described. this as their five-year plan. He noted that they have plenty of land. Mr. Risch asked for the size of the property. Mr. Wiiliams gave this as a little over 4 acres. Minutes of the NMT Zoning Hearing Board, January 5, 2006 7 Mr. Risch referred to the earlier testimony of Mr. Williams asked if it was correct that when he first looked at this property he was under the impression that schools were permitted in that zone and that religious use might be considered an accessory use. Mr. Williams replied, "We weren't led to believe that, we were told that." He said that the agent was surprised that it was 1-1 land since it was just a house. Mr. Williams stated, 'We did look up the Ordinance and we saw that private schools were permissible, and again we thought that based upon percentage of use, if it's strictly just time, if we spent an hour and a haif a day in class and an hour in prayer, then the majority of the use was school, at least this was our reasoning. So we thought we'd be fine, and that religious schooi certainly would have worship as an accessory use, and we didn't see a problem with that." Mr. Williams added that, "Both the agent and us agreed that we'd probably be okay." Mr. Weeks asked Mr. Williams to identify the agent he referred to. Mr. Williams testified that the agent was Bill Myers. Mr. Weeks asked if this is the same Bill Myers that...(submitted the letter from the Board of Supervisors). Mr. Williams stated that it's the same Bill Myers. Mr. Weeks asked Mr. Williams if he found that coincidental. Mr. Williams replied, "I don't know, that's why I didn't want to mention it other than the fact that that's how we originally thought that that was...we thought we'd be okay." Mr. Weeks asked to clarify that it was correct that Williams Myers was an agent in some capacity, representing you or a seller or a third party. Mr. Williams testified that Mr. Myers was also the Centre's agent in the attempt to purchase land in South Middleton Township, and was their agent all along. Mr. Weeks asked if it was correct that Mr. Myers represented The Peace Centre as the buyer of the property. Mr. Williams replied, "Correct." Mr. Weeks asked if Mr. Myers had toid Mr. Williams that this would be all right. Mr. Williams stated, "When we decided to buy it, we looked at the zoning to make sure we'd be okay." Mr. Risch pointed out that Mr. Myers had recused himself at a Board of Supervisors meeting when this was discussed last summer. Mr. Risch had no more questions. Mr. Rundle had a number of questions for Mr. Williams. Mr. Rundle asked Mr. Williams if the lot size is about 4 acres. Mr. Williams replied, "Correct." Mr. Rundle asked for the width of the property. Mr. Wiliams testified that he believed it runs about 207 feet along Cavalry Road. Mr. Rundle asked if it exceeds 200 feet. Mr. Williams replied, "It does, yes." Mr. Rundle asked if all houses of worship on the property have vehicular access to a Township road. Mr. Williams replied that this would be Cavalry Road, so the answer would be yes. Mr. Rundle asked if all structures wouid be at least 50 feet from the side setback/side property line. Mr. Williams said that this was correct, as far as he knew. He said that he didn't know the distance of the current building, but believed that it was at least 50 feet. He also testified that he didn't think they would extend past that. Mr. Rundle asked if the off-street parking was back at least 25 feet from the street right-of-way line. Mr. Williams answered, "Yes." Mr. Rundle acknowledged that this is a mosque, and asked if there is an intention to have a "church-related residence" as it is referred to in the Township Ordinance. Mr. Williams stated that he didn't know right now, but would talk to the architect to see what is possible. He said that at some point there may be some sort of residence for the "preacher" or whatever it is called in the zoning parlance. Mr. Rundle asked if this was done, would the Township Ordinances on residences be complied with. Mr. Williams replied, "Yes, we have every intention to do that, yes." Mr. Rundle noted that Mr. Williams had referred to the school. Mr. Rundle asked if the educational activity is conducted within the same building as the place of worship. Mr. Williams replied, "Currently it is, yes, and r would expect even if we do renovations that that would continue to be true." Mr. Rundle asked if renovations were to be done, would all appropriate permits required by the Township for construction be applied for. Mr. Williams replied, "Of course." Mr. Rundle asked If there is an outside playground. Mr. Williams replied, 'We don't have a playground, no." Mr. Rundle asked if there were to be a playground, would all requirements of Township Ordinances concerning playgrounds be complied with. Mr. Williams answered, "Certainly." Mr. Rundle asked if there is an intention to have a daycare center on the property. Mr. Williams said that right now that is not a plan, but that he couldn't rule it out for the future. Mr. Rundie asked if in the event there is a plan to conduct a daycare facility on the property, would all Township Ordinances with respect to the operation of daycare be complied with. , Mr. Williams replied, "Sure, of course." Mr. Rundle continued with his questions. He asked if there is a plan to have a cemetery on the property. Mr. Williams answered, 'We would like to have a cemetery, yes." Mr. Rundle asked if this may be in the immediate future. Mr. Williams said this could be within three years or five years. Mr. Rundle asked if at some point there were to be a cemetery on the property would all Township Ordinances and State laws with respect to the operation of cemeteries be complied with. Mr. Williams answered, "Yes." Mr. Rundl.e asked about the lighting on the property. Mr. Williams testified that there are quite a few lights on the outside of the Minutes of the NMT Zoning Hearing Board, January 5, 2006 8 house. He also stated that there is one street light in the middle of the property that is maintained by P.P.&L. Mr. Rundle asked if any of the lights reflect light off of the property. Mr. Williams answered, "Not that I know of." Mr. Rundle asked about prayer services beginning as early as dawn and lasting as late as midnight. Mr. Williams said that in general this would be true, but in practical purposes the prayer services are usually finished right after the earliest time for the night prayer, which tonight was around 6:45. He added that in the summer it may go later because the sun sets later, and there may be people there until 10:30 or 11 :00. Mr. Rundle asked If all prayer services are conducted within the structure. Mr. Williams answered, "Not necessarily. Our religion is a little bit flexible in that we can really pray outside if we want, or inside." Mr. Rundle asked if there were any questions from Board members. Mr. Herman asked if Bill Myers was the agent for Mr. Williams or for Mr. Shank. Mr. Wiiliams replied, "He was our agent." Mr. Herman referred to the billboard on the property. He asked if this was owned by The Peace Centre, and used to advertise. Mr. Williams testified that someone paid them a sum to put up the billboard for a religious advertisement not related to The Peace Centre. Mr. Herman asked for the number of cars that occupy the property. Mr. Williams testified that on a Friday there may be 25 cars, and that would be the maximum that he has seen there. Mr. Herman noted that he wasn't familiar with Muslim prayer services and asked if people can come and go throughout the day, and are not all there at the same time. Mr. Williams said that people usually go at the same time. He explained Ihat it is considered "good" in their religion to go In the earliest part of the time. Mr. Herman referred to the single means of ingress and egress. He asked if there was a consideration for a second access. Mr. Williams testified that they would like to expand it to make it a little safer. Mr. Herman pointed out that the most important task of the Zoning Hearing Board is to look out for the health, safety, and welfare of the Township. In that light, he asked how this works out for emergency vehicle access. Mr. Williams testified that the driveway is probably 12 feet wide and is wide enough for a fire engine to get in and out. He also mentioned that they are abie to park quite a few cars there on car show weekends. Mr. Williams further testified that expansion in the future will include a plan to redesign the traffic flow in accordance with whatever the Ordinance requires and whatever fulfills the needs of The Peace Centre. Mr. Herman asked if they may have a larger parking lot in the future, and if they will take into consideration all the required aspects such as water runoff and storm drains. Mr. Williams replied they will if they have to, and that The Peace Centre is not asking for anything special. Mr. Herman continued with his questions. He noted that at one point, through the newspapers, there had been an indication thai The Peace Centre wished to operate a restaurant. Mr. Williams testified that this was a "flight of fancy" that he took when it was discussed whether or not the property should be rezoned Highway Commercial. He said that when the Highway Commercial zoning was suggested, they thought that it would be good that they could then put in a restaurant. He also listed other possibilities as being a h()tei, or a couple of ethnic shops. Mr. Williams explained that their architect had given them some ideas. He summarized that these were simply "pie in the sky" types of things in the sense that those things had never been considered until the conversion to Highway Commercial became possible. Mr. Herman asked if these were intended to be money making ventures. Mr. Williams replied that they were looking at the time to produce some sort of steady income to rely less on donations. He said the organization realized that there would be tax implications and also implications for their tax-exempt status. Mr. Williams added that it was never thought it would be a development in any traditional sense, and that they were just trying to experime~t with ideas. Mr. Herman asked if a restaurant would be open to the public if there were to be one. Mr. Williams answered, "Oh, of course." Mr. Herman asked if there was a possibility that The Peace Centre might wish to operate a bed and breakfast. Mr. Williams answered that at some point the younger generation is going take over, and what they decide to do is going to be up to them. He testified that this is not his priority and is not economically feasible right now. Mr. Herman referred to these considerations and the Idea of a school and a cemetery. He asked if this is enlarging the religious mosque and possibly crowding the property. Mr. Williams mentioned a piece of land next to theirs that may be nice in the future, but he testified that the only plan now is to renovate the existing building and to add some parking. He also stated that he can 'I speak for what people may do 10 or 20 years from now. He also noted that The Peace Centre is somewhat limited by the land that they have. Mr. Herman had no further questions. Mr. Billman referred to the school and asked if there will be grades, as in first, second, third, etc. Mr. Williams testified that the Centre doesn't have a school in the sense of grades, but rather an institute where people get together and study religious texts. He described it as being an informal "Sunday School" type of learning situation. He further stated that this doesn't mean that they wouldn't like to have a school for children in the Minutes of the NMT Zoning Hearing Board, Jannary 5, 2006 9 future. Mr. Williams said that they have to do things step by step. Mr. Billman asked if a lawyer had been hired for guidance when purchasing the property. Mr. Williams replied, "No." Mr. Billman asked if there is water and sewer on the property. Mr. Williams answered that there is Township sewer and a weil for water. Mr. Billman referred to the sign that was mentioned. He asked if any rent is obtained from this sign. Mr. Williams replied that the sign belongs to The Peace Centre. Mr. Billman had no further questions. Mr. Weeks had several questions. He asked if the organization, a nonprofit 501 (c)(3) administered by a board, an executive committee, or what. Mr. Williams replied, "Just me." Mr. Weeks asked Mr. Williams if he would be listed as the sole proprietor. Mr. Williams testified that The Peace Centre has an official board, but the other two members are "non-active." He noted that one lives oversees and the other lives in Harrisburg. He added that he is not the sole proprietor. Mr. Weeks indicated that he was trying to get Mr. Williams' executive position clearly defined as a representative of the organization. Mr. Williams stated, "Well, I hold the checkbook...but other than that we try to take community decisions." Mr. Weeks then referred to Mr. Williams' testimony that the property had been purchased in 2003 and that Section 204-21 of the Zoning Ordinance had been looked at. Mr. Weeks further referred to the testimony that because the organization was doing one and a half hours of school versus one hour of religious service, it was thought that B(1 0) would cover the existence of The Peace Centre. Mr. Weeks noted that B(10) refers to "Public, private, commercial and/or vocational and mechanical trade schools." Mr. Willia[11s stated, "That's correct, yes." Mr. Weeks stated, "At the time you were not a licensed school in Pennsylvania." Mr. Williams stated, "No." Mr. Weeks continued, "Nor have since 2003 you have applied for that license, is that correct?" Mr. Williams answered, ''We have never applied for a license." Mr. Weeks inquired, "As far as the Commonwealth is concerned, you are not a school." Mr. Williams replied, "I don't know. I don't know what that means. What is the definition of a school?" Mr. Weeks stated that there is a Department of Education with rules and regulations. Mr. Williams replied, "We're not a public school, that's for sure." Mr. Weeks noted that they regulate private schools also. Mr. Weeks noted to Mr. Williams that he has chosen to identify his organization as a school. Mr. Williams testified, "If you look at our sign, we call ourselves an institute. That's not truly a school, I think." Mr. Weeks noted that is doesn't say "institute" in the list from B(10). Mr. Williams stated, "No, it doesn't say institute, but a private school and an institute to me are the same thing." Mr. Weeks stated, "In 2003 you either knew, or should have known that there was a gray area. What tilted that scale, was it a fact that your agent...?" Mr. Williams replied, "To me, an institute is a school, and any religious school is going to be a private school. To me that's common sense. Now there may be a legal definition that doesn't hold up to that, but I'm a layperson. When I see school and I say well, we're a school, if we call ourselves an institute, to me that's the same. Maybe that's a very broad interpretation but I think that's a valid interpretation, and I really don't see even to this day why the Township doesn't consider that. Once we thought that a private school was okay, we did consider the worship an accessory use, based upon strict terms of amount of time." Mr. Weeks asked if there are plans to apply for status as a private school. Mr. Williams testified that he wasn't sure what that means but that if this were appropriate at some point in the future, they would like to do that. He added that it is not being ruled out. Mr. Weeks referred to earlier testimony and asked Mr. Williams to explain how his agent influenced the purchase of the property in 2003, without the assistance of a lawyer for a rather large land purchase. Mr. Williams testified that he never mentioned a lawyer one way or another. Mr. Weeks asked, "As far as the purpose and use of this land for your purpose and use, how did you arrive at, without a lawyer, this was going to be agreeable according to the statute." Mr. Williams replied, "We didn't. The only thing we looked at was common sense." Mr. Weeks said he thought that Mr. Williams had said he had looked.at the statute. Mr. Williams testified, "What I'm saying is I took a common sense approach to understanding what a school was and my understanding of what we were and said that that was a match. So I didn't see why we would have a problem." Mr. Weeks asked Mr. Williams to comment on what his agent advised him. Mr. Williams stated, "I don't think he advised me in anything. He told me it was 1-1 land, and I said what does the zoning allow for in 1-1 land? So we both looked at the Ordinance and I saw the reference to school and I said oh, okay, we're a school." Mr. Weeks asked if he (Mr. Myers) thought that fit. Mr. Williams replied that he said he didn't see why that was not correct. Mr. Weeks asked if that agent identified himself also as an officer of this Township. Mr. Williams testified that he didn't, and that he didn't know that from him. He also noted that he had a partner. Minutes of the NMT Zoning Hearing Board, January 5, 2006 10 Mr. Weeks referred to the fire issue and asked if Mr. Williams would consider a consultation with the Fire Chief of the Township to look at the property and provide advice on how to protect people. Mr. Williams indicated that he would, and that he didn't have any problem with that. Mr. Weeks asked if it was correct that that hasn't happened yet. Mr. Williams indicated that that was correct. Mr. Weeks asked about the possibility if this were to be a requirement imposed on The Peace Centre in some sort of agreement. Mr. Williams replied, "As long as it's not oppressive to us, we would have no problem." Mr. Weeks noted that it would not be acceptable to have people congregate in a non-safe zone. Mr. Williams replied that he completely agreed. Mr. Weeks asked about earlier testimony that there is enough parking for the congregates and students. Mr. Williams testified that there is paved parking for about 12 cars and additional space for about 180 cars. Mr. Weeks referred a question to Mr. Risch. He asked for specifically what the variance is asking for. Mr. Risch replied that it is a variance from the permitted uses to permit a "place of worship" in the 1-1 zone. Mr. Williams added, "and accessory uses, piease." Mr. Risch referred to what the law of the Commonwealth would provide as being incidental to a religious use. At this point Mr. Rundle referred to Section 204-12 of the Zoning Ordinance. He stated that technically under the Ordinance this would be called "a church and related uses." He read: '~ building, structure, or group of buildings or structures including accessory uses designed or intended for public worship. This definition shall include rectories, convents, church related schools, church related day care facilities, or any combination thereof. " Mr. Williams said he hoped that cemetery would be included in that. He said he didn't know if it was. Mr. Weeks asked if Mr. Williams was now adding, "and cemetery." Mr. Williams said he just wanted to have it on the record that they did wish to have a cemetery at some point. Mr. Billman asked if the property was purchased mainly as a school or was there a long-term plan to be a worship center. Mr. Williams testified that they always thought that it was necessary to be both. Mr. Williams provided an explanation of how the preponderance of use is for a school. He stated that he didn't have any other criteria or standard for determining what the use of a property is, especially in a multi-use situation. Mr. Weeks asked for a clarification of calls to service. He asked if this is done by way of a public address system. Mr. Williams stated that it can be done that way, but has been done by human voice up until now. Mr. Weeks asked if he would be willing to rule that out in the future if it were to bother the neighbors. Mr. Williams said that it could probably be ruled out, but that he would want to talk to the neighbors first. He noted that the Turnpike is very loud there, and that speakers would have to be very loud to do anything to the neighbors. Mr. Weeks compared this to church bells. Mr. Williams testified that it would definitely not be louder than bells, and that he would be willing to work with the neighbors. Mr. Weeks asked about the possibility of increased signage. Mr. Williams testified that he would like to raise up the current sign a few feet, and possibly put up a sign in the future to advertise classes. He stated that this would be done in accordance with the restrictions in the Zoning Ordinance, in response to another question from Mr. Weeks. Mr. Billman mentioned the possibility of commercial uses in the future, and asked if there is a blind spot between the egress and the Turnpike. Mr. Williams stated that he didn't think so and said he believed that it is at ieast 300 feet to the Turnpike. He noted that he wasn't sure. Mr. Herman referred to the testimony about the use of loudspeakers. He asked if the decibel level would be no louder than church bells. Mr. Williams testified that it would be no louder than that. Mr. Risch had no further questions. Mr. Rundle asked if any member of the public had a question for the witness. No member of the public came forward. Mr. Risch had no further questions. Mr. Rundle asked if any member of the public wished to offer testimony. Michelle Kastriba came forward. She was sworn in. The following paragraph is a summary of her testimony: Minutes of the NMT Zoning Hearing Board, January 5, 2006 11 I'd just like the Board know that this is open to the public, for anyone that is willing and wanting to come. I was a Christian up until about a year and a half ago and if wasn't for The Peace Centre and the education that was offered to me at The Peace Centre, I wouldn1 have made the decision that I made to become a Muslim. I have two young children, and I would love to be able to take them there to get religious classes in Arabic, and what they need to grow up to be proper Muslims. This is what Michael provides. If you need anything, you can go to The Peace Centre. Michael or someone else is there to help you. That's reaily ail I have to say. The Board had no questions for the witness. Mr. Risch also had no questions. Thomas Dempsey came forward. He was sworn in. The following paragraph is a summary of his testimony: I'm a resident of North Middleton. I live in Middleton estates. I've lived there about six years. I also teach at The Army War Coilege. One of my students, a very good friend, was involved in organizing this effort to establish The Peace Centre. I wanted to talk a little bit about how important this is to a lot of our Muslim students who come to attend The War Coilege. One of the wonderful things about this area is the warm welcome that everybody here extends to our international officers that come here to attend The War Coilege. Part of that has been this Peace Centre. Before The Peace Centre was established, if you were a Muslim officer at The War Coilege, and praying and studying Islam is a very important part of their life, and the only place they really had to do that was a little room that we furnished them in Root Hail, our educational facility. It's sort of like if you were going to go to church and you had to go to a little room in the local school. When they established The Peace Centre, it made a tremendous difference to our students and our students' families. One of the other things that we discovered, I learned much to my surprise that we had a significant Muslim community here in Carlisle. I guess shouldn1 have been surprised by that, but I was. And I know from talking to Mike, who is a very good friend of mine that that makes a tremendous difference to the local Muslims here in Carlisle. I'm a Catholic and I go to Saint Patrick's. If I had to go to church in Mechanicsburg or in Camp Hill and I'm going to a church that is not in my community or I'm worshipping with folks that I don1 see the rest of the week. If you can do that with your neighbors, that's really a wonderful thing. As a resident of North Middleton, I wanted to say to the three of you, thank you for contributing your time for this sort of thing, to make the Township run the way it should. I wish I could bring my students in here to see this. I realize that there are a lot of legal issues that you are concerned with, rightly so. I guess ail I would ask is that if you can find a way to accommodate what The Peace Centre does, I think that would be a very good thing. Mr. Weeks had a question for Mr. Dempsey. Mr. Weeks noted that if this becomes statute, it guides your neighborhood and my neighborhood. He stated that for whatever reason people can think of their own interpretations of what they want to do with their land that doesn't fit with this law. Mr. Weeks asked, "What is your advice to the Township; scrap the law?" Mr. Dempsey replied, "My advice to the Township is have a board like you to listen to all the facts and then make a good common sense decision that serves the interest of the community as a whole as best you can, and I have no doubt that you guys are going to do that." There were no further questions from the Board. Mr. Risch had no questions. Mr. Rundle asked if any member of the public had a question. No member of the public came forward. Paula Knudsen came forward. She was sworn in. The following paragraph is a summary of her testimony: I'm here both personally and professionally. I'm a resident of central Pennsylvania. I've lived here my whole life. I attended the Dickinson School of Law, and I'm proud to know the Carlisle area as one of my home areas. I'm also an attorney and I teach classes at various places and I would be happy to be invited to The Peace Centre to teach any number of classes. In my professional life I teach classes and represent people in civil liberties and civil rights cases. I work for the American Civil Liberties Union of Pennsylvania. And on behalf of the members of the ACLU who live in Cumberland County and within your township, I would urge you to grant the variance on behalf of The Peace Centre. After listening to the testimony today, I would be happy to go and teach at The Peace Centre, send my children to The Peace Centre, it's a valuable resource to the community, and I believe that the ACLU members who support religious liberty and diversity, who live within Cumberland County and this township would also urge you to do the same. So I'm here to offer my. Minutes of the NMT Zoning Hearing Board, January 5, 2006 12 support both as a citizen of central Pennsylvania, as well as in my professional capacity with the ACLU that supports religions of all kinds, including the Muslim religion. Mr. Weeks asked Ms. Knudsen if she understood the requirements for a variance and asked how this application met those requirements. Ms. Knudsen replied that she is a civil rights practitioner and primarily in Federal Court. She testified that she believed that the variance requirements have been met, as outlined by Mr. Risch. She stated that the Board is within its rights to grant it. Ms. Knudsen further stated that this is not a request that is out of the ordinary and to grant it would not be doing a disservice to the residents of the Township. Mr. Weeks stated that he has not heard the argument yet for the merits of the variance. He said that he has heard the wishes of the owners and the congregates. He further noted that he has not heard the basic requirements for a variance being testified to, and that perhaps they will be or they won't be. Ms. Knudsen again said that she offers her support both as a citizen and in her professional capacity. Mr. Rundle asked if any member of the public wished to offer testimony aQainst the variance request. No member of the public came forward. There was no further public testimony. Mr. Risch made a closing argument. Prior to the closing of the record, Mr. Weeks asked for some further testimony from Mr. Hovis. Mr. Weeks asked Mr. Hovis if he had any knowledge of a plan to fix the Zoning Ordinance so that it is no longer, as testified to, in violation of a Federal Law that was apparently passed in the year 2000. Mr. Hovis testified that he had no knowledge. Mr. Weeks referred to the health, safety, and welfare issue. He asked if Mr. Hovis could see anything in the request that is unsafe. Mr. Hovis stated that he did not see anything that is unsafe. Mr. Weeks asked Mr. Hovis if he could see anything that was unhealthy. Mr. Hovis replied that he did not. Mr. Weeks asked Mr. Hovis if he could see anything that is contrary to the welfare of the Township. Mr. Hovis replied. "No." Mr. Weeks asked Mr. Hovis if it was correct that as an inspector and agent of the Township that he did not see any deficiency. Mr. Hovis nodded "yes." Mr. Weeks asked if we are reduced to a technicality of one law being written in one year and being superseded by another law, and it was never codified and brought up to date, and they are appealing what seems to be some precipitous action by the Township having been taken as early as May/June of this year. Mr. Hovis stated, "That's correct." Mr. Weeks referred to the ingresslegress question. He asked Mr. Hovis if there are any indications that the ingress/egress will be modified if this is approved. Mr. Hovis referred to the testimony concerning the number of people that they have and stated that he did not see that being needed at this time. Mr. Weeks asked Mr. Hovis if he couid foresee a critical number of so many cars or so many people. Mr. Hovis said that this would come under the Building Code as far as the number of occupants that could occupy the building. Mr. Weeks noted that the Applicants have shown a willingness to work with the Township and to abide by all of the conditions that have been mentioned. Mr. Hovis replied, "Yes." There were no further questions. The record was closed at 8:28 p.m. There was a brief discussion. Decision/505 Cavalrv Road: Appeal of Zonina Officer #05.13 J. Wolford Herman moved to grant the variance, with standard requirement that the Applicant comply with al/ other applicable Federal, State, and local laws, rules, and regulations. Chester B.illman seconded the motion. Mr. Billman and Mr. Herman voted in favor of the motion to grant the variance, and the motion carried. Mr. Rundle explained to those present that the public has a period of 30 days in which to file an appeal of the decision. Minutes From December 6. 2005 J. Wolford Herman moved to approve the minutes from the December 6, 2005 meeting as presented. Chester Billman seconded, and the minutes were approved as presented ReorQanization of the ZoninQ Hearina Board (CONTINUED) Mr. Billman accepted the position of Secretary. Mr. Herman accepted the position of Vice-Chairman. The lineup for 2006 will be: . Chairman-Henry Weeks . Vice-Chairman-J, Wolford Herman . Secretary-Chester Billman Adiournment With no further business before the Board at this time, the meeting adjourned at 8:40 p.m. Respectfully Submitted, Chester Billman Secretary North Middleton Township Zoning Hearing Board Michael S. Medvid Recording Secretary Minutes of the NMT Zoning Hearing Board, January 5, 2006 13 . n ~ S ( f)( h ~ b lfD The Peace Center 505 Cavalry Road, Carlisle, PelIDsylvania The Peace Center 505 Cavalry Road, Carlisle, Pennsylvania 505 Cavalry Road, Carlisle, Pennsylvania DECISION OF NORTH MIDDLETON TOWNSHlP ZONING HEARING BOARD APPLICANT'S NAME: APPLICANT'S ADDRESS: OWNER'SNAME~ OWNER'S ADDRESS~ LOCATION OF PROPERTY~ CASE NO: DATE OF Af>PLLCATION~ DATE OF HEARING: DATE OF DECISION' BOARD MEMBERS PRESENT: SOLICITOR: 05-13 November 15, 2005 January 5, 2006 January 5, 2006 Henry Weeks, Chairman; J. Wolford Herman; Chester Billman Michael R Rundle, Esquire DECISION L The Applicant's appeal of the determination of the Codes Enforcement Officer as set forth in the letter of October 20, 2005 is sustained. 2. The Applicant's request for a variance to ~ection 204-2LB of the Zoning Ordinance to pennit tbe use of a "Church and Relatoo Uses" as defined in Section 204-12.C of said ordinance on the subject property located in the Campus Industrial Zone (I-I) is granted with the condition that the App]icomt comply with 811 applicable fedcr;li, state and local laws rules and regulations.. NORTH MIDDLETON TOWNSHIP ZONING HEARING BOARD ~ By: Henry Week, Chairman ( NOTICE; ANY PERSON AGGRIEVED BY TIlE DECISION OF THE ZONING HEARING BOARD MAY APPEAL TO TlIE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. THE APPEAL MUST BE TAKEN WITHlN THIRTY (30) DAYS FROM THE DATE OF THIS OECJSJON. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing pleading was served on counsel of record, via first class mail, postage prepaid on the 14th day of February, 2006, addressed as follows: Carl C. Risch, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 Counsel for Plaintiff Dated: February 14, 2006 .' (", r n .--:\ " C ( , 0"1 .) .4 i> FIFILES\DA T AFlLE\GeneraI\Current\11754.1.petitionwwpd THE PEACE CENTRE, Plaintiff :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :CIVIL ACTION v. :NO.05-5831 THE TOWNSHIP OF NORTH MIDDLETON, Defendant PRAECIPE TO WITHDRAW PETITION TO RECOVER ATTORNEYS FEES PURSUANT TO 42 U.S.CA. & 1988(b) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please withdraw Petition to Recover Attorneys Fees Pursuant to 42 U.S.C.A. S 1988(b). MARTSON DEARDORFF WILLIAMS & OTTO ~dOO LD. No. 75901 Michael J. Collins, Esquire LD. No. 200427 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Atlorneys for PlainlijJ Date: February 17, 2006 -- . CERTIFICATE OF SERVICE I, Michael J. Collins, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Praecipe to Withdraw Petition to Recover Attorneys Fees Pursuant to 42 U.S.C.A. 9 1988(b) was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Steven K. Ludwig, Esquire Fox Rothschild, LLP 2000 Market St., 10th Floor Philadelphia, PA 19103-3291 MARTSON DEARDORFF WILLIAMS & OTTO Dated: Februaryl7, 2006 Altorneys for Plaintiff . , -n --,-: .'~ r-:, - , F\F1LES\DA T AFlLEIGeneral\Curremll 1754.1-praecipetodiSCO!1linuewpd THE PEACE CENTRE, Plaintiff :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :CIVIL ACTION v. :NO. 05-5831 THE TOWNSHIP OF NORTH MIDDLETON, Defendant PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please mark the above captioned case discontinued. ByMA~ORFFWlLLIAMS & OTTO Carl C. Riscn, Esquire I.D. No. 75901 Michael J. Collins, Esquire I.D. No. 200427 Ten East High Street Carlisle, P A 17013 (717) 243-3341 Altorneys for Plaintiff Date: February 17, 2006 - . CERTIFICATE OF SERVICE I, Michael J. Collins, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Praecipe to Discontinue was served this date by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Steven K. Ludwig, Esquire Fox Rothschild, LLP 2000 Market St., 10th Floor Philadelphia, PA 19103-3291 MARTSON DEARDORFF WILLIAMS & OTTO ca[JD By Carl C. Risch, Esquire Attorney LD. No. 75901 Michael J. Collins, Esquire Attorney I.D. No. 200427 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: Februaryl7, 2006 Attorneys for PlainlijJ r.....:l ,- .~ !;.." {,) .f! ~~:."J , ~~ _J ~ G; .. THE PEACE CENTRE, Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LA W No.: 05-5831 THE TOWNSHIP OF NORTH MIDDLETON, Defendant. DEFENDANT'S RESPONSE TO PLAINTIFF'S PETITION TO RECOVER ATTORNEYS FEES PURSUANT TO 42 U.S.C.A.~ 1988(b) Defendant, The Township of North Middleton, by its undersigned counsel, answers Plaintiffs Petition to Recover Attomeys Fees Pursuant to 42 U.S.C.A. !i 1988(b) as follows: 1. Admitted. 2. Denied. After reasonable investigation, Defendant is without sufficient information to respond to the averments of Paragraph 2 and they are denied. 3. Admitted. 4. Admitted in part; denied in part. It is admitted that Plaintiff is the owner of 505 Cavalry Road located within North Middleton Township and that Plaintiff operates a place of worship at that location. After reasonable investigation, Defendant is without sufficient information to respond to the remaining averments of Paragraph 4 and they are denied. 5. Admitted in part; denied in part. It is admittcd that on or about October 20,2005, the Township of North Middleton, by and through its zoning officer, sent the letter appended to Plaintiffs First Amended Complaint as Exhibit A to Plaintiff at 505 Cavalry Road. The remaining averments are denied as a mischaracterization of the letter which was set forth in full in Exhibit A. . 6. Admitted in part; denied in part. While it is admitted that a place of worship is not permitted in the zoning classification 1-1 without the securing of a variance from the Zoning Hearing Board, it is denied that Plaintiff is in violation of the Township's Zoning Code because Plaintiff has secured a variance from the Zoning Hearing Board. 7. Denied. It is specifically denied that Defendant substantially burdened Plaintiffs free exercise ofreligion. 8. Admitted in part; denied in part. It is admitted that Plaintiff filed a First Amended Complaint on November 23,2005. It is denied that this action was initiated on November 23, 2005; on the contrary, a complaint was filed by Plaintiff on November 9, 2005. 9. Admitted. 10. Admitted. II. Admitted in part; denied in part. It is admitted that Defendant sent a letter to the Zoning Hearing Board of North Middleton Township dated January 4,2006 supporting Plaintiff application for a variance. Although it is admitted that the Township did not rescind its October 20th letter, it is specifically denied that the letter is properly characterized as a "cease and desist" letter. 12. Admitted in part; denied in part. It is admitted that Defendant sent a letter to the Zoning Hearing Board of North Middleton Township dated January 4,2006 supporting Plaintiff application for a variance. Although it is admitted that the Township did not rescind its October 20th letter, it is specifically denied that the letter is 2 ~ appropriately characterized as a "cease and desist" letter. It is specifically denied that the ordinance constitutes illegal treatment ofreligious and non-religious assembly. 13. Denied. It is specifically denied that the litigation initiated by Plaintiff persuaded North Middleton Township that its position with respect to the local ordinance was incon'ect or illegal under any law. 14. Admitted in part; denied in part. It is speci fically denied that the Township was "inspired" to publicly disclaim the so-called cease and desist letter and publicly support the grant of the requested variance. It is specially denied that the so- called cease and desist letter was ever publicly disclaimed. It is admitted that the Township publicly supported the grant of the requested variance permitting The Peace Centre to operate as a place of worship. 15. Denied. The averments of Paragraph 15 are denied as conclusions of law. By way of further answer, it is specifically denied that Plaintiff is a prevailing party or that there was a material alteration of the legal relationship of the parties. \6. Denied. It is specifically denied that The Peace Centre is entitled to attorney's fees under any law. 17. Denied. It is specifically denied that The Peace Centre is entitled to attorney's fees under any law. It is specifically denied that the Township engaged in conduct which was dilatory, obdurate and/or vexatious. 18. Denied. It is specifically denied that the Township issued a so-called "cease and desist order" that it had no intention of enforcing. It is specifically denied that any cease and desist order was issued to Plaintiff. 3 19. Denied. It is specifically denied that Plaintiff was required to initiate litigation against the Township. It is specifically denied that the Township's conduct was obdurate. 20. Denied. It is specifically denied that The Peace Centre was singled out by the Township. It is specifically denied that the Township engaged in vexatious conduct. It is specifically denied that the Township issued a so-called "cease and desist" letter. 21. Denied. After reasonable investigation, Defendant is without sufficient information to respond to the averments of Paragraph 21 and they are denied. WHEREFORE, Defendant requests that this Court deny Plaintiff's petition for attorneys fees pursuant to 42 U.S.C.A. 9 1988(b) and award Defendant the attorney's fees and costs relating to the defense of this motion. even K. udwig' squire Attorney 1.D. # 40417 Fox Rothschild LLP 2000 Market Street, Tenth Floor Philadelphia, P A 19103-3291 (2 I 5) 299-2164 (215) 299-2150 Counsel for Defendant North Middleton Township Dated: February 21,2006 4 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing pleading was served on counsel of record, via first class mail, postage prepaid, on the 16th day of February, 2006, addressed as follows: Carl C. Risch, Esquire Marlson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 Counsel for Plaintiff "JI;?!/11 ~ Dated: February 16,2006 r<~ ,") -;1 ~'ri I' C;;':} r-<) i\ C,) :-.' _J3 CD -<