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HomeMy WebLinkAbout2005-5831 Civil 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 of a preliminary injunction pursuant to 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. 1 On or about November 15, 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: (1) In furtherance of a compelling interest of the agency. (2) The least restrictive means of furthering 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 A.2d 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. Id citing Committee of Seventy v. Albert, 381 A.2d 188, 190 (Pa.Cmwlth. 1977) and T W Phillips Gas and Oil Co. v. Peoples Natural Gas Co., 492 A.2d 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. Weare 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 NO. 05-5831 ORDER AND NOW, this 5th day of December, 2005, the motion of the plaintiff for Preliminary or Special Injunction is DENIED, without prejudice. BY THE COURT, Kevin A. Hess, J. Carl C. Risch, Esquire F or the Plaintiff Steven K. Ludwig, Esquire F or the Defendant :rlm 4 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. ORDER AND NOW, this 5th day of December, 2005, the motion of the plaintiff for Preliminary or Special Injunction is DENIED, without prejudice. BY THE COURT, Kevin A. Hess, J. Carl C. Risch, Esquire F or the Plaintiff Steven K. Ludwig, Esquire F or the Defendant :rlm