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supplement or replace thefilmg and servzce ofpleadings or other papers as required by law or rules of court
Commencement of Action
S E Complaint [I Writ of Summons El Petition
E B Transfer from Another Jurisdiction D Declaration of Taking
C Lead Plaintiffs Name Lead Defendant 5 Name
T The Apostolic Church International Darby Borough
Dollar Amount Requested El ithin arbitration limits
3) Are money damages requeSted? D Yes D No (check one) fiutside arbitration limits
N Is this a Class Action Stat? D Yes E] No Is this an MDJ Appeal? [:1 Yes El No
A Name of Plaintiff/Appellant s Attorney Carl W Ewald NO 85639
El Check here if y ou have no attorney (are a Self Represented [Pro Se Litigant)
Nature of the Case Place an “X” to the left of the ONE case category that most accurately describes your
PRIMARY CASE If you are making more than one type of claim, check the one that
you consider most important
TORT (do not Include Mass Tort) CONTRACT (do not Include Judgments) CIVIL APPEALS
U Intentional El Buyer Plaintiff Administrative Agencies
El Malicious Prosecution [I Debt Collection Credit Card D Board of Assessment
D Motor Vehicle El Debt Collection Other D Board of Elections
E| Nuisance D Dept of Transportation
S U Premises Liability [I Statutory Appeal Other
E [I 22:31::Shimmy (does not Include El Employment Dispute
Discrimination
t
C a aggrier/Libel/ Defama ion E] Employment Dispute Other [I Zoning Board
T D Other
I C] Other
0 MASS TORT
E] Asbestos
N E] Tobacco
[:1Toxic Tort DES
U “”9”“ Implant REAL PROPERTY MISCELLANEOUS
D TOE” Waste D Ejectment E] Common Law/Statutory Arbitration
B D 0‘ er E] Eminent Domain/Condemnation [I Declaratory Judgment
[I Ground Rent E Mandamus
E] Landlord/Tenant Dispute [I Non Domestic Relations
U Mortgage Foreclosure Residential Restraining Order
PROFESSIONAL LIABLITY [I Mortgage Foreclosure Commercial El Quo Warranto
D Dental D Partition D Replevin
U Legal E] Quiet Title El Other
fl Medical El Other
D Other Professional
Updated 1/1/20] I
Carl W Ewald
Law Offices of
Carl W Ewald, P C
110 West Front Street
Media, PA 19063 Attorney for
ph (610) 565 7520 Apostolic Church International
fax (610) 565 7682
IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY
THE APOSTOLIC CHURCH
INTERNATIONAL PENNSYLVANIA
ASSEMBLIES
Plaintiff
v. NO. 14
DARBY BOROUGH
and
DAN PALUMBO
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 notlce for any money claimed in the complaint or for any other claim or relief
requested by the plaintiff 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 ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE
Delaware County Bar Association
Front & Lemon Streets
Media, Pennsylvania 19063
(610) 566 6265
Carl W Ewald
Law Offices of
Carl W Ewald P C
110 West Front Street
Media PA 19063 Attorney for
ph (610) 565 7520 Apostolic Church International
fax (610) 565 7682
IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY
THE APOSTOLIC CHURCH
INTERNATIONAL PENNSYLVANIA
ASSEMBLIES
71 NORTH MCDADE BLVD
DARBY PA 19023
Plaintiff
V NO 14
DARBY BOROUGH
821 SUMMIT STREET
DARBY PA 19023
and
DAN PALUMBO
821 SUMMIT STREET
DARBY PA 19023
COMPLAINT
Plaintiff, the Apostolic Church International Pennsylvania Assemblies,
brings this action in Mandamus seeking an order to compel the Defendants Dan
Palumbo and Darby Borough, to comply with their non discretionary duties to
grant a use occupancy permit to allow the Church to use its property and avers in
support thereof as follows
Factual Background
1 Plaintiff, Apostolic Church International Pennsylvania
Assemblies is a property owner of a building and land located at
71 North McDade Blvd in the Borough of Darby '33
2 Plaintiff seeks to use the Property as a Church f , i ’3
3 The Borough of Darby is a municipal corporation having a a\ I a“ {é
\ <4» - «a
business address of 821 Summit Street Darby, PA 19023 ‘3
1)
L, if)
.
4 Dan Palumbo is the appointed Code Official of the Borough of y3 (’5
Darby and has a business address of 821 Summit Street, Darby
PA 19023
5 Counsel for the Church called the Borough Solicitor in December
to explain its position that the Apostolic Church does not need a
variance, nor a special exception, and should be permitted to
begin using the property for services immediately
6 Counsel then followed up with a letter the next week setting forth
the case law and Ordinances which clearly show that the Church
use is a use permitted by right and that the proposed use complies
with the Ordinance
7 The letter also showed that all alleged non conformities were
clearly pre existing conditions to which there is a vested right to
continue
8 Plaintiff never received a response to its December letter
9 On March 7 2014 Plaintiff filed an application for a use
certificate restating the law and requesting a permit via hand
delivery
10 Pursuant to 2003(2)(b) of the Darby Borough Zoning Ordinance
the Zoning Officer was required to complete all inspections and
either certify compliance or deny such certification within 15
days
11 All denials must be in writing
12 The Zoning Officer never responded to the Application
13 On April 15, 2014, Counsel sent a second letter to the Borough
Solicitor, explaining that the Church’s position is that the permit
application has been granted it would begin using the property
14 The letter also warned that, if the Borough interfered with the
Plaintiff‘s constitutional rights to use its property and to the free
exercise of religion, it immediately seek the protection of the
Courts
15 Defendant Polumbo never responded to the Use/Occupancy
Permit
16 Instead, more than 40 days after the Application was made, on
April 18, 2014, the Solicitor for the Zoning Hearing Board sent a
letter purporting to deny the Permit Application
17 The Zoning Solicitor’s letter was a clear Violation of the
separation of the quasi judicial role of the Zoning Hearing Board
and the executive functions of the Code Department
18 The law is very well established that the Zoning Board Solicitor
may not intrude in the prosecutorial/executive functions of the
municipality Horn V Township of Hilltown 461 Pa 745 337
A 2d 858 (1975)
19 Religious use is a use by right in the HC district
20 The Apostolic Church was told last in 2013 that it was required to
file an application for a special exception and variance with the
Zoning Board in order to use this property as a Church
21 Its application was denied citing three reasons that the pre
existing building did not have a sufficient rear yard setback that
the existing building did not provide sufficient off street parking
and that the use was inconsistent with the comprehensive plan
22 There is no legal basis to require the Plaintiff to apply for a
special exception or a variance
23 This is a case of clear discrimination against a religious use,
which is protected by the Pennsylvania Constitution, United
States Constitution and the Religious Land Use and
Institutionalized Person Act
24 Based on the clear provisions of the Darby Borough Zoning
Ordinance, the Apostolic Church does not need a variance nor a
special exception, and should be permitted to begin using the
property for services immediately
COUNT I MANDAMUS
25 The averments of paragraphs 1 24 of the foregoing Complaint are
incorporated herein as if fully set forth
26 For the following reasons, the Borough there is no justification in
law for the refusal to grant the Occupancy permit
27 No discretionary function is involved
28 The refusal to assign Officers Devore and Taylor to the schedule
has caused and is causing Plaintiff damages in that
a The Church has been forced to rent an alternate building to
conduct its worship while it has been unconstitutionally
denied the right to use its own property
b The Church is a small church with only 25 members who
struggle to bear the burden of paying for the mortgage and
upkeep of their property and rent for a place to worship
c The Church has incurred legal fees to bring this action and
negotiate with the Borough, which further stresses its very
limited finances
29 Plaintiff lacks an adequate remedy at law to compel defendants to
comply with the law It is clear from the illegal comingling of the
Zoning Hearing Solicitor and Executive duties, the baseless
refusal of permits, and complete disregard of its own Ordinances
that the Plaintiff can never receive a fair hearing before the
Borough
30 This property was originally constructed by the Catholic Church
and used for religious purposes
31 The building for many years housed the local chapter of the
Catholic War Veterans of the United Stated of America
32 When the property was sold it was then used for secular
congregational uses such as meeting and parties
I Religious Use is Permitted as a Use by Right in the Highway
Commercial District
33 The Apostolic Church should never have been requested to seek a
special exception or a variance because the use is permitted by
right Section 901(15) of the Borough Ordinance provides in
relevant part
Section 901 USES PERMITTED BY RIGHT
Land, buildings or premises shall be used by right
for only one or more of the following uses
(15) Religious use, including accessory
dwelling, subject to the provisions of Section 1706
34 Thus it is clear that the use as a church, is permitted by right
Though it references the standards used in granting a special
exception, the use is classified as a use by right
35 This classification is repeated in the use chart at Appendix A of
the Ordinance
36 Moreover Section 902 of the Ordinance provides for Special
Exceptions in the HC district and religious use is not a use that is
listed in that Section
37 Finally if there is any doubt as to which classification this falls
under, the Municipalities Planning Code requires that the
Ordinance be interpreted in favor of the Apostolic Church
Section 10603 1 provides
§ 10603 1 Interpretation of ordinance provisions
In interpreting the language of zoning ordinances to
determme the extent of the restriction upon the use of the
property, the language shall be interpreted, where doubt
exists as to the intended meaning of the language written
and enacted by the governing body in favor of the property
owner and against any implied extension of the restriction
38 Accordingly, there is no doubt that religious use is a use permitted
by right in the HC District
2 The Pre Existing Non Conforming Structure is Grandfathered from
the Setback Requirement
39 The Apostolic Church should never have been requested to apply
for a variance from the rear yard setback requirement because the
building is a pre existing, non conforming structure Section
2201 of the Borough Zoning Ordinance provides as follows
2201 CONTINUATION All structures lots uses of
structures and uses of land that do not conform to the
regulations of the district in which they are located after the
effectlve date of this Ordinance or amendment thereto shall
be regarded as nonconforming and may be continued so
long as they remain otherwise lawful, including subsequent
sales of property Such uses must comply with all safety
related and other applicable regulations
40 Accordingly, it is clear that the structure may remain as a non
conforming structure
41 The Apostolic Church must be permitted to use that structure
without having to prove that it meets the requirements for a
variance for the rear yard setback
3. The Pre Existing Non Conforming Structure is Grandfathered from
the Parking Requirement
42 The non conforming structure rule in Section 2201 applies
equally to the issue of parking
43 The Apostolic Church should be permitted to use the structure
without having to provide additional parking
44 Moreover, the Zoning Ordinance specifically provides that the
parking regulations do not apply in the HC district Section 1401
of the Ordinance sets forth when an owner must comply with the
Article 14 It provides
1401 APPLICABILITY
1 Basic Requirements Off street parking shall be
provided in accordance with the requirements in Section
1402 below, except as modified by this section and section
1 405
2 Existing Structures and Uses No building
or use of land lawfully in existence prior to the effective
date of this Ordinance shall be sublect to the following
reguirements so long as the kind or extent of use is not
changed so as to reguire additional parking
3 The Provision and Retention of Facilities All
required parking facilities shall be provided and maintained
so long as the use exists which the facilities were designed
to serve Off street parking facilities shall not be reduced in
total extent except when such reduction is in conformity
with this Article
4 A Change or Extension of Use Except in the
CBD Central Business district and the HC Highway
Commercial district, whenever a structure is altered or a
use is changed or extended which increases the parking
requirements then the total additional parking required for
the alteration change or extension shall be provided in
accordance with Section 1402
5 New construction and expansion of existing uses
must provide the off street parking spaces required in
Section 1402 However, in the CBD Central Business
district and the HC Highway Commercial district the
required spaces may be provided in any one or any
combination of the following types of facilities or
arrangements
a Off street/on site
b Off site area (Section 1405)
c Common parking area (Section 1405)
d Municipal parking lot or structure
Proposals for uses that would utilize parking in any
arrangement other than the standard on site/off street
manner must be accompani ed by a written agreement
between the applicant and the owner of the parking facility
indicating that such parking spaces will be provided to
serve the proposed use or expansion of an existing use
Prior to the approval of any proposed use or expansion
necessitating other than the standard off street/on site
parking, the Zoning Officer (20) must certify in writing
that such parking arrangements have been executed and
that all required spaces have thereby been provided
(emphaszs added)
45 Thus, Section 1401(2) grandfathers this structure regarding
parking
46 Moreover, Section 1401(4) expressly exempts properties in the
HC district from the requirement that the total additional parking
required be provided if there is a change in use
47 Accordingly, by the plain language of the Ordinance, the
Apostolic Church is not required to provide any additional
parking and has a right to use the pre existing non conforming
structure as a religious use
4 The Apostolic Church has provided sufficient parking
48 Even if the Apostolic Church were required to provide parking to
meet Section 1402 of the Ordinance, the Church has done so
because the existing parking is sufficient and the Church has an
agreement with a neighbor to share parking
49 Section 1402 of the Ordinance provides that a religious use needs
to provide one parking space for every five seats
50 The proposed plot plan provided for twenty four seats and five (5)
parking spaces
51 Thus, the plot plan meets the parking requirements of Section
1402
52 Moreover, Section 1402(5) provides that uses in the HC district
may meet the parking requirements by obtaining a written
agreement between the applicant and the owner of an off site
parking facility indicating that such parking spaces will be
provided to serve the proposed use
53 Herein, the Apostolic Church has obtained an agreement from the
Club Tavern which allows the Church to use its parking lot to
meet the need for any additional spaces
54 Further the Church has testified that the majority of its members
do not drive and the Church has a van service that picks the
members up at their homes and drops them at the property
55 Accordingly, in the alternative, if the parking requirements do
apply, the Apostolic Church has met the parking requirements
5 The Borough May Not Deny the Use Based on the Comprehensive
Plan
56 The Zon1ng Board found that the use was not consistent with the
Borough’s Comprehensive Plan
57 The law is crystal clear that the Comprehensive Plan cannot be
used as a basis to deny a use
58 The Courts have long held that “The comprehensive plan does not
have the legal effect of a zoning ordinance, which actually
regulates the land use as may be recommended by the
comprehensive plan ” Saenger v Flaming Com of Berks County,
9 Pa Commw 499 (Pa Commw Ct 1973) Swinehart v Upper
Pottsgrove Township, 23 Pa Commw 282 (Pa Commw Ct
1976) (same)
WHEREFORE, for the foregoing reasons, Plaintiff respectfully requests
that the Court enter judgment in favor of the Plaintiff, Order that the Borough
must immediately grant all permits necessary to allow the Church use, and award
such other relief as the Court deems proper
COUNT II RLUIPA
59 The averments of paragraphs 1 58 of the foregoing Complaint are
incorporated herein as if fully set forth
60 The Religious Land Use and Institutionalized Persons Act
prohibits discrimination against religious land uses 42 USC
2000cc
61 Section 2000cc “Protection of land use as religious exercise”
protects against discrimination against religious uses by requiring
equal treatment with secular assembly uses It provides
(b)(l) Equal terms
No government shall impose or implement a land use regulation
in a manner that treats a religious assembly or institution on less
than equal terms with a nonreligious assembly or institution
62 Herein, the prior uses of the property was as a rental hall for
nonreligious assembly
63 This use continued until the property was purchased by Plaintiff,
which immediate requested to use the building for religious
assembly and as a religious institution
64 Section 20000c(b)(2) protects against discrimination against
religious uses by requiring equal treatment between
denominations It provides
(2) Nondiscrimination
No government shall impose or implement a land use regulation
that discriminates against any assembly or institution on the basis
of religion or religious denomination
65 This property was originally owned and built by the Catholic
Church
66 It was used by the Catholic Church for many years as a place of
assembly
67 The abutting property continues to be owned by and used by the
Catholic Church
68 Defendants have refused to allow the Defendant to use its
property despite the fact that the use is permitted by right in the
zoning district
69 RLUIPA authorizes the award of attorney 5 fees and costs to
Plaintiffs Rocky Mt Christian Church v Bd of County Comm'rs
of Boulder County, CO , 2010 U S Dist LEXIS 8273 (D CO
Jan 11 2010)( district court ordered Boulder County to pay $1 25
million of the Church's legal fees, as well as $90,000 in costs )
WHEREFORE, for the foregoing reasons, Plaintiff respectfully requests
that the Court enter judgment in favor of the Plaintiff, Order that the Borough
must immediately grant all permits necessary to allow the Church use, award
Plaintiff attorney’s fees and costs, and award such other relief as the Court deems
proper
COUNT III LAND USE APPEAL
70 The averments of paragraphs 1 24 of the foregoing Complaint are
incorporated herein as if fully set forth
71 In the alternative, Plaintiff hereby appeals from the August 2,
2013 decision of the Darby Borough Zoning Hearing Board (the
“Board”)
72 The August 2 2013 ruling failed to give notice to the
Plaintiff/Appellants of their right to appeal
73 The Board s action was an abuse of discretion and an error of law
contrary to the Darby Borough Zoning Ordinance and the
Municipalities Planning Code in the following respects, among
others;
a The religious use is a use permitted by right in the HC district
b The building is a pre existing non conforming structure and
may continue to be used regardless of the existing set back
regulations
0 The property is a pre existing, non conforming structure and
is exempt from the alleged parking requirements
d The proposed use meets all parking requirements
e The proposed use may not be denied because of the Borough’s
Comprehensive Plan
f Plaintiff incorporates all arguments in paragraphs 1 69 herein
WHEREFORE, for the foregoing reasons in the alternative,
Plaintiff/appellant respectfully prays that the Court reverse the Zoning Hearing
Board Order that the Borough must immediately grant all permits necessary to
allow the Church use, and award such other relief as the Court deems proper
é CARL W EWALD
Atty ID No 85639
Counsel for Plaintiff/Appellant
Apostolic Church International
Dated May 16 2014
VERIFICATION
Anthony Techie Mensah, states that he is the Presiding Elder for the Apostolic
Church International Pennsylvania Assemblies and that he is authorized to make this
verification on its behalf He states that the facts in the foregoing Complaint are true and
correct to the best of his knowledge, information and belief subject to the penalties for
unswom perjury
W
Anthony Techie Mensah
Preview
r...) / u . 63" Supreme Contact: ofagennsylvama {2‘ A? > ' a? i r? r '; Cour; of Common Pleas For Prothonotary Use Only if: ”if“ /(' . x 2 r I ‘3 Cid CflVQI‘ Swt Docket No I K E (5‘ (a D aware are A: t a C oun r r. ’9. MW ty '90\L\ , OOHML§ ' W” 390 3" a) ' The mformatzon collected on thzs form ls used solely for court admmzstratzon P urP oses Thzs f0 rd )3 es no supplement or replace thefilmg and servzce ofpleadings or other papers as required by law or rules of court Commencement of Action S E Complaint [I Writ of Summons El Petition E B Transfer from Another Jurisdiction D Declaration of Taking C Lead Plaintiffs Name Lead Defendant 5 Name T The Apostolic Church International Darby Borough Dollar Amount Requested El ithin arbitration limits 3) Are money damages requeSted? D Yes D No (check one) fiutside arbitration limits N Is this a Class Action Stat? D Yes E] No Is this an MDJ Appeal? [:1 Yes El No A Name of Plaintiff/Appellant s Attorney Carl W Ewald NO 85639 El Check here if y ou have no attorney (are a Self Represented [Pro Se Litigant) Nature of the Case Place an “X” to the left of the ONE case category that most accurately describes your PRIMARY CASE If you are making more than one type of claim, check the one that you consider most important TORT (do not Include Mass Tort) CONTRACT (do not Include Judgments) CIVIL APPEALS U Intentional El Buyer Plaintiff Administrative Agencies El Malicious Prosecution [I Debt Collection Credit Card D Board of Assessment D Motor Vehicle El Debt Collection Other D Board of Elections E| Nuisance D Dept of Transportation S U Premises Liability [I Statutory Appeal Other E [I 22:31::Shimmy (does not Include El Employment Dispute Discrimination t C a aggrier/Libel/ Defama ion E] Employment Dispute Other [I Zoning Board T D Other I C] Other 0 MASS TORT E] Asbestos N E] Tobacco [:1Toxic Tort DES U “”9”“ Implant REAL PROPERTY MISCELLANEOUS D TOE” Waste D Ejectment E] Common Law/Statutory Arbitration B D 0‘ er E] Eminent Domain/Condemnation [I Declaratory Judgment [I Ground Rent E Mandamus E] Landlord/Tenant Dispute [I Non Domestic Relations U Mortgage Foreclosure Residential Restraining Order PROFESSIONAL LIABLITY [I Mortgage Foreclosure Commercial El Quo Warranto D Dental D Partition D Replevin U Legal E] Quiet Title El Other fl Medical El Other D Other Professional Updated 1/1/20] I Carl W Ewald Law Offices of Carl W Ewald, P C 110 West Front Street Media, PA 19063 Attorney for ph (610) 565 7520 Apostolic Church International fax (610) 565 7682 IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY THE APOSTOLIC CHURCH INTERNATIONAL PENNSYLVANIA ASSEMBLIES Plaintiff v. NO. 14 DARBY BOROUGH and DAN PALUMBO 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 notlce for any money claimed in the complaint or for any other claim or relief requested by the plaintiff 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 ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE Delaware County Bar Association Front & Lemon Streets Media, Pennsylvania 19063 (610) 566 6265 Carl W Ewald Law Offices of Carl W Ewald P C 110 West Front Street Media PA 19063 Attorney for ph (610) 565 7520 Apostolic Church International fax (610) 565 7682 IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY THE APOSTOLIC CHURCH INTERNATIONAL PENNSYLVANIA ASSEMBLIES 71 NORTH MCDADE BLVD DARBY PA 19023 Plaintiff V NO 14 DARBY BOROUGH 821 SUMMIT STREET DARBY PA 19023 and DAN PALUMBO 821 SUMMIT STREET DARBY PA 19023 COMPLAINT Plaintiff, the Apostolic Church International Pennsylvania Assemblies, brings this action in Mandamus seeking an order to compel the Defendants Dan Palumbo and Darby Borough, to comply with their non discretionary duties to grant a use occupancy permit to allow the Church to use its property and avers in support thereof as follows Factual Background 1 Plaintiff, Apostolic Church International Pennsylvania Assemblies is a property owner of a building and land located at 71 North McDade Blvd in the Borough of Darby '33 2 Plaintiff seeks to use the Property as a Church f , i ’3 3 The Borough of Darby is a municipal corporation having a a\ I a“ {é \ <4» - «a business address of 821 Summit Street Darby, PA 19023 ‘3 1) L, if) . 4 Dan Palumbo is the appointed Code Official of the Borough of y3 (’5 Darby and has a business address of 821 Summit Street, Darby PA 19023 5 Counsel for the Church called the Borough Solicitor in December to explain its position that the Apostolic Church does not need a variance, nor a special exception, and should be permitted to begin using the property for services immediately 6 Counsel then followed up with a letter the next week setting forth the case law and Ordinances which clearly show that the Church use is a use permitted by right and that the proposed use complies with the Ordinance 7 The letter also showed that all alleged non conformities were clearly pre existing conditions to which there is a vested right to continue 8 Plaintiff never received a response to its December letter 9 On March 7 2014 Plaintiff filed an application for a use certificate restating the law and requesting a permit via hand delivery 10 Pursuant to 2003(2)(b) of the Darby Borough Zoning Ordinance the Zoning Officer was required to complete all inspections and either certify compliance or deny such certification within 15 days 11 All denials must be in writing 12 The Zoning Officer never responded to the Application 13 On April 15, 2014, Counsel sent a second letter to the Borough Solicitor, explaining that the Church’s position is that the permit application has been granted it would begin using the property 14 The letter also warned that, if the Borough interfered with the Plaintiff‘s constitutional rights to use its property and to the free exercise of religion, it immediately seek the protection of the Courts 15 Defendant Polumbo never responded to the Use/Occupancy Permit 16 Instead, more than 40 days after the Application was made, on April 18, 2014, the Solicitor for the Zoning Hearing Board sent a letter purporting to deny the Permit Application 17 The Zoning Solicitor’s letter was a clear Violation of the separation of the quasi judicial role of the Zoning Hearing Board and the executive functions of the Code Department 18 The law is very well established that the Zoning Board Solicitor may not intrude in the prosecutorial/executive functions of the municipality Horn V Township of Hilltown 461 Pa 745 337 A 2d 858 (1975) 19 Religious use is a use by right in the HC district 20 The Apostolic Church was told last in 2013 that it was required to file an application for a special exception and variance with the Zoning Board in order to use this property as a Church 21 Its application was denied citing three reasons that the pre existing building did not have a sufficient rear yard setback that the existing building did not provide sufficient off street parking and that the use was inconsistent with the comprehensive plan 22 There is no legal basis to require the Plaintiff to apply for a special exception or a variance 23 This is a case of clear discrimination against a religious use, which is protected by the Pennsylvania Constitution, United States Constitution and the Religious Land Use and Institutionalized Person Act 24 Based on the clear provisions of the Darby Borough Zoning Ordinance, the Apostolic Church does not need a variance nor a special exception, and should be permitted to begin using the property for services immediately COUNT I MANDAMUS 25 The averments of paragraphs 1 24 of the foregoing Complaint are incorporated herein as if fully set forth 26 For the following reasons, the Borough there is no justification in law for the refusal to grant the Occupancy permit 27 No discretionary function is involved 28 The refusal to assign Officers Devore and Taylor to the schedule has caused and is causing Plaintiff damages in that a The Church has been forced to rent an alternate building to conduct its worship while it has been unconstitutionally denied the right to use its own property b The Church is a small church with only 25 members who struggle to bear the burden of paying for the mortgage and upkeep of their property and rent for a place to worship c The Church has incurred legal fees to bring this action and negotiate with the Borough, which further stresses its very limited finances 29 Plaintiff lacks an adequate remedy at law to compel defendants to comply with the law It is clear from the illegal comingling of the Zoning Hearing Solicitor and Executive duties, the baseless refusal of permits, and complete disregard of its own Ordinances that the Plaintiff can never receive a fair hearing before the Borough 30 This property was originally constructed by the Catholic Church and used for religious purposes 31 The building for many years housed the local chapter of the Catholic War Veterans of the United Stated of America 32 When the property was sold it was then used for secular congregational uses such as meeting and parties I Religious Use is Permitted as a Use by Right in the Highway Commercial District 33 The Apostolic Church should never have been requested to seek a special exception or a variance because the use is permitted by right Section 901(15) of the Borough Ordinance provides in relevant part Section 901 USES PERMITTED BY RIGHT Land, buildings or premises shall be used by right for only one or more of the following uses (15) Religious use, including accessory dwelling, subject to the provisions of Section 1706 34 Thus it is clear that the use as a church, is permitted by right Though it references the standards used in granting a special exception, the use is classified as a use by right 35 This classification is repeated in the use chart at Appendix A of the Ordinance 36 Moreover Section 902 of the Ordinance provides for Special Exceptions in the HC district and religious use is not a use that is listed in that Section 37 Finally if there is any doubt as to which classification this falls under, the Municipalities Planning Code requires that the Ordinance be interpreted in favor of the Apostolic Church Section 10603 1 provides § 10603 1 Interpretation of ordinance provisions In interpreting the language of zoning ordinances to determme the extent of the restriction upon the use of the property, the language shall be interpreted, where doubt exists as to the intended meaning of the language written and enacted by the governing body in favor of the property owner and against any implied extension of the restriction 38 Accordingly, there is no doubt that religious use is a use permitted by right in the HC District 2 The Pre Existing Non Conforming Structure is Grandfathered from the Setback Requirement 39 The Apostolic Church should never have been requested to apply for a variance from the rear yard setback requirement because the building is a pre existing, non conforming structure Section 2201 of the Borough Zoning Ordinance provides as follows 2201 CONTINUATION All structures lots uses of structures and uses of land that do not conform to the regulations of the district in which they are located after the effectlve date of this Ordinance or amendment thereto shall be regarded as nonconforming and may be continued so long as they remain otherwise lawful, including subsequent sales of property Such uses must comply with all safety related and other applicable regulations 40 Accordingly, it is clear that the structure may remain as a non conforming structure 41 The Apostolic Church must be permitted to use that structure without having to prove that it meets the requirements for a variance for the rear yard setback 3. The Pre Existing Non Conforming Structure is Grandfathered from the Parking Requirement 42 The non conforming structure rule in Section 2201 applies equally to the issue of parking 43 The Apostolic Church should be permitted to use the structure without having to provide additional parking 44 Moreover, the Zoning Ordinance specifically provides that the parking regulations do not apply in the HC district Section 1401 of the Ordinance sets forth when an owner must comply with the Article 14 It provides 1401 APPLICABILITY 1 Basic Requirements Off street parking shall be provided in accordance with the requirements in Section 1402 below, except as modified by this section and section 1 405 2 Existing Structures and Uses No building or use of land lawfully in existence prior to the effective date of this Ordinance shall be sublect to the following reguirements so long as the kind or extent of use is not changed so as to reguire additional parking 3 The Provision and Retention of Facilities All required parking facilities shall be provided and maintained so long as the use exists which the facilities were designed to serve Off street parking facilities shall not be reduced in total extent except when such reduction is in conformity with this Article 4 A Change or Extension of Use Except in the CBD Central Business district and the HC Highway Commercial district, whenever a structure is altered or a use is changed or extended which increases the parking requirements then the total additional parking required for the alteration change or extension shall be provided in accordance with Section 1402 5 New construction and expansion of existing uses must provide the off street parking spaces required in Section 1402 However, in the CBD Central Business district and the HC Highway Commercial district the required spaces may be provided in any one or any combination of the following types of facilities or arrangements a Off street/on site b Off site area (Section 1405) c Common parking area (Section 1405) d Municipal parking lot or structure Proposals for uses that would utilize parking in any arrangement other than the standard on site/off street manner must be accompani ed by a written agreement between the applicant and the owner of the parking facility indicating that such parking spaces will be provided to serve the proposed use or expansion of an existing use Prior to the approval of any proposed use or expansion necessitating other than the standard off street/on site parking, the Zoning Officer (20) must certify in writing that such parking arrangements have been executed and that all required spaces have thereby been provided (emphaszs added) 45 Thus, Section 1401(2) grandfathers this structure regarding parking 46 Moreover, Section 1401(4) expressly exempts properties in the HC district from the requirement that the total additional parking required be provided if there is a change in use 47 Accordingly, by the plain language of the Ordinance, the Apostolic Church is not required to provide any additional parking and has a right to use the pre existing non conforming structure as a religious use 4 The Apostolic Church has provided sufficient parking 48 Even if the Apostolic Church were required to provide parking to meet Section 1402 of the Ordinance, the Church has done so because the existing parking is sufficient and the Church has an agreement with a neighbor to share parking 49 Section 1402 of the Ordinance provides that a religious use needs to provide one parking space for every five seats 50 The proposed plot plan provided for twenty four seats and five (5) parking spaces 51 Thus, the plot plan meets the parking requirements of Section 1402 52 Moreover, Section 1402(5) provides that uses in the HC district may meet the parking requirements by obtaining a written agreement between the applicant and the owner of an off site parking facility indicating that such parking spaces will be provided to serve the proposed use 53 Herein, the Apostolic Church has obtained an agreement from the Club Tavern which allows the Church to use its parking lot to meet the need for any additional spaces 54 Further the Church has testified that the majority of its members do not drive and the Church has a van service that picks the members up at their homes and drops them at the property 55 Accordingly, in the alternative, if the parking requirements do apply, the Apostolic Church has met the parking requirements 5 The Borough May Not Deny the Use Based on the Comprehensive Plan 56 The Zon1ng Board found that the use was not consistent with the Borough’s Comprehensive Plan 57 The law is crystal clear that the Comprehensive Plan cannot be used as a basis to deny a use 58 The Courts have long held that “The comprehensive plan does not have the legal effect of a zoning ordinance, which actually regulates the land use as may be recommended by the comprehensive plan ” Saenger v Flaming Com of Berks County, 9 Pa Commw 499 (Pa Commw Ct 1973) Swinehart v Upper Pottsgrove Township, 23 Pa Commw 282 (Pa Commw Ct 1976) (same) WHEREFORE, for the foregoing reasons, Plaintiff respectfully requests that the Court enter judgment in favor of the Plaintiff, Order that the Borough must immediately grant all permits necessary to allow the Church use, and award such other relief as the Court deems proper COUNT II RLUIPA 59 The averments of paragraphs 1 58 of the foregoing Complaint are incorporated herein as if fully set forth 60 The Religious Land Use and Institutionalized Persons Act prohibits discrimination against religious land uses 42 USC 2000cc 61 Section 2000cc “Protection of land use as religious exercise” protects against discrimination against religious uses by requiring equal treatment with secular assembly uses It provides (b)(l) Equal terms No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution 62 Herein, the prior uses of the property was as a rental hall for nonreligious assembly 63 This use continued until the property was purchased by Plaintiff, which immediate requested to use the building for religious assembly and as a religious institution 64 Section 20000c(b)(2) protects against discrimination against religious uses by requiring equal treatment between denominations It provides (2) Nondiscrimination No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination 65 This property was originally owned and built by the Catholic Church 66 It was used by the Catholic Church for many years as a place of assembly 67 The abutting property continues to be owned by and used by the Catholic Church 68 Defendants have refused to allow the Defendant to use its property despite the fact that the use is permitted by right in the zoning district 69 RLUIPA authorizes the award of attorney 5 fees and costs to Plaintiffs Rocky Mt Christian Church v Bd of County Comm'rs of Boulder County, CO , 2010 U S Dist LEXIS 8273 (D CO Jan 11 2010)( district court ordered Boulder County to pay $1 25 million of the Church's legal fees, as well as $90,000 in costs ) WHEREFORE, for the foregoing reasons, Plaintiff respectfully requests that the Court enter judgment in favor of the Plaintiff, Order that the Borough must immediately grant all permits necessary to allow the Church use, award Plaintiff attorney’s fees and costs, and award such other relief as the Court deems proper COUNT III LAND USE APPEAL 70 The averments of paragraphs 1 24 of the foregoing Complaint are incorporated herein as if fully set forth 71 In the alternative, Plaintiff hereby appeals from the August 2, 2013 decision of the Darby Borough Zoning Hearing Board (the “Board”) 72 The August 2 2013 ruling failed to give notice to the Plaintiff/Appellants of their right to appeal 73 The Board s action was an abuse of discretion and an error of law contrary to the Darby Borough Zoning Ordinance and the Municipalities Planning Code in the following respects, among others; a The religious use is a use permitted by right in the HC district b The building is a pre existing non conforming structure and may continue to be used regardless of the existing set back regulations 0 The property is a pre existing, non conforming structure and is exempt from the alleged parking requirements d The proposed use meets all parking requirements e The proposed use may not be denied because of the Borough’s Comprehensive Plan f Plaintiff incorporates all arguments in paragraphs 1 69 herein WHEREFORE, for the foregoing reasons in the alternative, Plaintiff/appellant respectfully prays that the Court reverse the Zoning Hearing Board Order that the Borough must immediately grant all permits necessary to allow the Church use, and award such other relief as the Court deems proper é CARL W EWALD Atty ID No 85639 Counsel for Plaintiff/Appellant Apostolic Church International Dated May 16 2014 VERIFICATION Anthony Techie Mensah, states that he is the Presiding Elder for the Apostolic Church International Pennsylvania Assemblies and that he is authorized to make this verification on its behalf He states that the facts in the foregoing Complaint are true and correct to the best of his knowledge, information and belief subject to the penalties for unswom perjury W Anthony Techie Mensah