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Archive for the tag “code”

Court Teaches School a Lesson On Residences and Buses

In the recent landmark case of Watts v. Manheim Tp. School Dist., 84 A.3d 378 (Pa.Cmwlth.2014), the Commonwealth Court of Pennsylvania has established what rights a child, who is subject to a custody order, has to bus service to his local public school.

In Watts the Plaintiff was a father who equally shared legal and physical custody of his son (“Child”) with the Child’s mother (“Mother”). Both Plaintiff and Mother lived in the same school district (“Defendant”) and both lived in similar proximity to an established school district bus route. Plaintiff requested Defendant to send the school district’s school bus service to pick up and drop off the Child at both his home and Mother’s home according the custody arrangements laid out in Plaintiff and Mother’s custody order regarding the Child. In the school years immediately prior to the one at issue in Watts, Defendant allowed school buses to go to multiple addresses to pick up a child, but, as a cost cutting measure, it slowly eliminated that service. By the time Plaintiff requested the bus service go to both his and Mother’s house to pick up and drop off the Child, Defendant refused to accommodate Plaintiff’s request indicating that its policy was that each child may only have one official residence at which he may be picked up and dropped off by a school district bus. In response, Plaintiff filed a complaint and for an injunction seeking a writ of mandamus to compel Defendant to provide bus service to both Plaintiff’s home and Mother’s home for the Child. Plaintiff was successful at the trial court level which led to Defendant’s appeal to the Commonwealth Court whose opinion is the subject of this article. One of the central issues in this case is determining where the Child’s residence is located for the purpose of school bus service as a child is entitled to be picked up and dropped off at his residence.

The Defendant argued that how school bus transportation is implemented is within its discretion according to the School Code (24 P.S. Section 13-1362 et seq.) and, therefore, its decision to limit school bus stops to one residence per child is consistent with that discretion. Defendant further argued that it was under no specific duty to transport children to multiple residences and that by transporting the Child to and from his Mother’s home only (as opposed to both Plaintiff and Mother’s homes), it has met its statutory obligation to provide bus transportation to the Child. Plaintiff emphasized that, per the Pennsylvania Supreme Court, the term “residence” does not necessarily denote primary domicile and that the law requires Defendant provide transportation between the school and a child’s residences without specificity that it is to be only one residence per child. Indeed, case law (namely Wyland v. West Shore School District, 52 A.3d 572 (Pa.Cmwlth.2012)) clearly indicates that a child can have more than one residence for the purposes of the School Code.

The Court ruled that the School Code requires school districts, like Defendant, to provide transportation to and from school from a child’s residence or a bus stop within one and one-half miles from that residence. The Court further ruled, on the strength of Wyland, that a student in a school district may have two legal residences and that the Child did, indeed, have two residences in the instant case (Mother’s home is two miles from Plaintiff’s and outside the one and one-half mile radius described above). Consequently, the Court asserted that Defendant, by refusing to provide transportation to and from Plaintiff’s home for the Child, is depriving the Child from receiving the transportation to which he is entitled to his residence, even if he has another legal residence as well.

As a result, the Court ruled in favor of the Plaintiff and ordered the Defendant to provide bus transportation to and from both Plaintiff and Mother’s homes to pick up and drop off the Child for school according to the arrangement laid out in Plaintiff and Mother’s custody order.

Originally published in Upon Further Review on September 18, 2014 and can be seen here.

Land Use Matter Taxing for Church

Nearly two millennia ago, Jesus of Nazareth sagely taught his followers to “render to Caesar the things that are Caesar’s”. In the 21st century it appears that the Commonwealth Court of Pennsylvania had similar advice for a Cheltenham congregation of the First Korean Church of New York, Inc. (hereinafter “the Church”) in the recent matter of First Korean Church of New York, Inc. v. Montgomery County Board of Assessment Appeals, Cheltenham Township, Cheltenham Township School District, Montgomery County, and Montgomery County Board of Commissioners (1551 CD 2010) (hereinafter “the Case”).

Montgomery County Board of Assessment Appeals, Cheltenham Township, Cheltenham Township School District, Montgomery County, and Montgomery County Board of Commissioners (hereinafter “the Government”) sought to collect property taxes on the real estate used by the Church.  The Church, of course, argued that it was entitled to a tax exemption as a principal place of religious worship.  The issue of whether the Church was entitled to an exemption to the taxes the Government sought forms the dispute addressed by the Court in the Case.

The Case’s procedural history is rather long and tangled, including stops at the Montgomery County Board of Assessment Appeals, Township of Cheltenham Zoning Hearing Board, the Court of Common Pleas (hereinafter “the Trial Court”), the Supreme Court of Pennsylvania, and one previous stop at the Commonwealth Court.  Ultimately, the Government was granted Summary Judgment by the Trial Court which was appealed to theCommonwealth Court.  TheCommonwealth Courtremanded to the Trial Court on the issue of whether the property was entitled to a tax exemption.  Upon remand, the Trial Court conducted a two-day non-jury hearing resulting in a decision adverse to the Church, specifically that the Church was not entitled to a tax exemption as an actual place of regularly stated religious worship.  The Church appealed to theCommonwealth Courtonce again, and it is the opinion issued from this appeal that is discussed herein.  The central issue discussed in the Case was whether the property-at-issue (hereinafter “the Property”) the Church claimed it was using, was an actual place of regularly stated religious worship; if it was, the tax exemption applies, if not, the Church would not receive the exemption.  In making its analysis, the Court focused squarely on the evidence presented by the parties at the aforesaid trial.

The Church initially alleged that it was a Korean Presbyterian denomination and that its pastor resides at the Property.  The Property is large, with multiple buildings surrounded by a chain link fence with a couple of locked gates as the only entrances.  Only one of the locked entrance gates was used and could be controlled by remote control from within the buildings at the Property.  The Church further alleged that a more senior cleric visits the Property once per month to preside over services and those services occurred each Sunday from4:30pmto6:00pm, which is followed by a congregational dinner.  The pastor testified at trial and admitted that the Church’s services are frequently attended only by his family and he controls the remote controlled security gate.  Additionally, while there is no sign at the Property identifying it as a church, the Church asserted that the lack of a sign was due to a zoning restriction.

The Government countered the Church’s allegations by asserting that the Property was in extraordinary disrepair and its grounds were overgrown and unkept.  Indeed, the Trial Court found that the Property requires more than $10,000,000 in repairs to make it usable.  In addition to “keep out” signs and other forms of security (such as the aforementioned remote controlled security gate restricting access to the Property), the only rooms on the Property which were heated were those used as the pastor’s residence.  The Government called a local police officer as a witness who conducted surveillance on the Property on seven (7) different occasions.  The police officer testified that he never saw anyone enter or exit the Property when services were alleged to have occurred, however he did see the pastor travel from one building to another within the Property to where services occur each Sunday.  Indeed, the Government implied that the Property was primarily the pastor’s residence as opposed to a church.

The Court determined that much of the Church’s evidence was not credible.  For example, the photographs presented by the Church were from before 1998, and the Church presented no recent photographs or recent church bulletins to demonstrate current religious use.  Ultimately, in view of the above evidence, the Court ruled that the Property was not used primarily as a church and, therefore, was ineligible for a tax exemption.

On appeal to the Commonwealth Court, the Church argued that that was no evidence that the Property was used for any other purpose aside from a church, that it has rooms which are clearly designed for a church to use, and that the Government repeatedly admitted the Church was what it claimed to be through various pieces of correspondence and such.  The Church also attacked the surveillance evidence by indicating that the police officer never interviewed anyone at the Church, that half of the surveillance reports were incomplete, and that, per the aforesaid reports, the lights were on in the building when the Church claimed to have services occurring.  Significantly, the Church pointed out that despite the claims for tax exemption made by the Church, and the allegedly extensive investigation and surveillance by the Government into the same demonstrating that the Church’s claims were allegedly bogus, the Government never pressed any charges when it allegedly discovered that the Church made spurious tax claims.  The Church asserted that the Government’s failure to act with regard to the crime of tax fraud allegedly committed by the Church was evidence that there was nothing illicit or false in the Church’s claim for a tax exemption and that the surveillance conducted on the Church was simply for the purpose of creating trial evidence.

Upon a full review of the evidence below, the Court ruled that the Trial Court did not commit abuse of discretion or an error of law in finding against the Church.  The Court found that there was sufficient evidence presented by the Government to prove that the Property was not primarily used as a Church.  The Court found that the Trial Court conducted an accurate and rather thorough analysis of the facts and issues presented and did not abuse its discretion or commit an error of law.  The Court found that there was simply insufficient evidence to prove that the Property was used by the Church primarily for religious purposes.

In the final analysis, when seeking a tax exemption, a Church must ensure that the Property it uses is primarily used for religious purposes; otherwise Caesar must receive what is his from it.

Originally published on January 10, 2012 in the Pennsylvania Law Weekly section of The Legal Intelligencer and can be found here.

Ripeness Spoils Church’s Efforts

In the matter of Shenkel United Church of Christ v. North Coventry Township, 2009 WL 3806769, Shenkel United Church of Christ (“the Church”), has recently found its efforts to fight homelessness spoiled by the doctrine of ripeness.
In order to fulfill its Biblical mandate to care for the needy among us, the Church, for several years, participated in a Montgomery County run program called “One Night at a Time”. “One Night at a Time” helped homeless persons find shelter for one (1) month during the winter. For a reason unrelated to the case discussed herein, in 2005 Montgomery County discontinued the “One Night at a Time” program. Instead, Montgomery County directed its homeless population to a local state hospital. Unfortunately, it became apparent that the local state hospital was inadequate to meet the needs of the County’s efforts against homelessness, as overcrowding became a persistent problem. In 2007, in response to the continued homelessness problems in Montgomery County, and the overcrowding of the state hospital, a Christian organization, called Ministries for Main Street, was formed to help combat homelessness. The services offered by Ministries for Main Street were, in essence, the same as those offered by the “One Night at a Time” program. As the Church was an active participant with the “One Night at a Time” program, it attempted to similarly participate in Ministries for Main Street.
Before participating in Ministries for Main Street, the Church dutifully notified North Coventry Township (hereinafter “the Township”) of its intention to do so toward the end of 2007. Although the Township had no objection to the Church’s participation in “One Night at a Time” two (2) years previous, the Township now, suddenly, objected to the Church’s participation in Ministries for Main Street, even though the Church was to provide the same services as before. The Township’s objection primarily revolved around its allegation that the Church’s efforts with Ministries for Main Street would violate both the Township’s zoning laws and building codes. Specifically, the Church was zoned for assembly purposes, and not as a residence as required to house the homeless even temporarily. Additionally, the Township’s Fire Marshall sent a letter to the Church informing it that, considering the Church’s present zoning, it could not contain sleeping facilities pursuant to the applicable fire safety requirements. As a result of the clear resistance of the Township, the Church elected not to participate in the Ministries for Main Street program. The Township subsequently indicated to the Church that if the Church was interested in participating in the Ministries for Main Street program, it would need to apply for a variance from the zoning and/or building and/or fire codes.
Instead of requesting a variance, in October 2008 the Church elected to file an application with the Township’s Zoning Hearing Board, requesting a determination that it did not need a variance to participate in the Ministries for Main Street program. After a number of postponements, and unsuccessful negotiations with the Township, the Church withdrew its aforesaid application. Instead, the Church elected to pursue its goals through litigation and brought suit against the Township alleging the Township had violated the Religious Land Use and Institutionalized Persons Act, the Pennsylvania Religious Freedom Protection Act, and the Free Exercise Clause of the First Amendment of the United States Constitution.
In reaching its decision, the Court never addressed the substantive allegations made by the Church. Instead, the Court refocused the matter onto whether the matter is, ultimately, a land use issue. Consequently, the Court focused on whether the Church’s claims against the Township were ripe in the context of a land use matter. When enunciating the standard for ripeness, the Court cited to Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985) and Murphy v. New Milford Zoing Commission, 402 F.3d 342 (2nd Cir. 2005). In order to determine whether a matter is ripe when a land use issues arises from constitutional claims, such as the matter discussed herein, “the government entity charged with implementing the regulations [must reach] a final decision regarding the application of the regulations to the property at issue.” See Williamson. Based on the preceding, when applying the standard for ripeness, the Court investigated into whether the Township’s “decision maker”, in this case the Zoning Hearing Board, had reached a definitive position on the salient issues. It is only upon the Zoning Hearing Board’s having reached an adverse decision against a land owner, in this case the Church, that a land owner is inflicted with an actual and recoverable injury which can serve as the basis for a civil action. The Court developed the above standard because it did not to want the Court to devolve into becoming a glorified land use board dealing with effectively local issues. It wanted to ensure that the local zoning boards would be the primary places where land use issues, such as the one in the matter at hand, are dealt with and resolved. Indeed, the Court specifically indicated its belief that the local boards are in a better position to make local decisions than the Court. Therefore, an issue is only ripe if a final decision is rendered by the local authority and/or it can be proven that the pursuit of a variance would be a futile effort.
The Church argued that the above enunciated ripeness standard ought not apply; it argued, instead, that the instant matter is not about land use and, therefore, another ripeness standard should apply. To that end, the Church argued that the standard laid out in Step-Saver Data Systems, Inc. v. Wyse Technology, 912 F.2d 643 (3rd Cir. 1990) was the appropriate standard by which the Court should render its decision. The key distinction between the standard laid out above, and the standard established in Step-Saver Data Systems, Inc., is that the matter at issue in Step-Saver Data Systems, Inc. took place in the context of a declaratory judgment as opposed to the context of a land use matter. Under Step-Saver Data Systems, Inc., the analysis would be to determine whether: (1) the parties’ interests are sufficiently adverse; (2) the court can issue a conclusive ruling in light of potentially evolving factual developments; and (3) the decision will render practical help the parties. The Church asserted that the instant matter was, in fact, a declaratory judgment matter as it was seeking declaratory and/or injunctive relief of a pre-enforcement matter.
When rendering its decision, the Court simply did not find the Church’s arguments, or the cases it cited in support of the same, persuasive in the face of the Township’s assertion that the matter is, at its core, a land use matter. Specifically, the Court stated that since the Church’s action against the Township centered directly upon how the Township’s Zoning Officer and Fire Marshall applied the zoning regulations to the Church’s proposed use of its land; based upon this, the Court indicated, it was clear that the matter was, at its core, a land use matter as opposed to some sort of declaratory judgment matter. To sum up its rationale, the Court explained that “[s]ince the Church has not stated a facial challenge to the Township ordinances, the Church is essentially asking this Court to rule on the application of those ordinances before the Township itself has had the opportunity to do so.” A question of the application of ordinances for the use of land is, therefore by definition, a land use matter and the Williamson standard applies. It is worth noting that the Court mentioned, as dictum, that it may not have reached a different decision even if it used the cases the Church citied to in support of its position. How that would play out, of course, may never be known.
Allowing the matter to proceed to ripeness has a fourfold positive effect on a matter such as the one discussed herein. First, it allows for the local authority to render a decision and develop a complete record. Second, it is only after the pursuit of the variance process will the property owner, and the court by extension, know how the ordinances will be applied. Third, the variance needed may actually be granted which would, of course, eliminate the need for judicial entanglement into the affairs of a church. Fourth, it reinforces a basic federal principle that land use disputes are uniquely a matter of local concern as opposed to that of a Court.
The Court ultimately decided that the Church’s matter was simply not ripe enough to hear at this time. The Court noted that as the Church failed to pursue a variance, withdrew is application to the zoning board wherein it asserted that it did not need an application, and never pursued any sort of appeal of the Zoning Board or Fire Marshall’s decisions, that the Church never let the matter reach any decision at any level previous to bringing a civil action. Due to these decisions made by the Church, the Court ruled that the Church never permitted its matter to ripen sufficiently to warrant the engagement of the Court in such a matter.
In the final analysis, the central matter in this case is whether the question at issue is a land use matter or a declaratory judgment matter. For the reasons noted above, the Court decided it was a land use matter and that the Church did not permit the matter to sufficiently ripen to warrant a civil action. The principle to take away from the decision discussed herein is that, when dealing with a land use issue, all local administrative remedies must be exhausted before initiating a civil action.
Finally, one of the issues never addressed by the decision discussed herein, and one that this author thinks is rather peculiar, is why the Church was permitted to house the homeless when it participated “One Night at a Time” program but not permitted to do the same in the Ministries for Main Street program, even though the Church’s facilities were substantially the same at all times material to the case. This clearly apparent, unexplainable, and seemingly arbitrary change in the Township’s policy toward the Church seems to this author to involve more than just a land use issue; in actuality, it would seem that the religious freedom of a Church to achieve its social goals in the community is at issue. Perhaps if further investigation was done to determine why the Church was suddenly restricted from performing a service it performed for many years without the Township’s interference, a fresh perspective on whether the matter was actually ripe could have stopped the spoiling of the Church’s efforts to combat homelessness.

This article also appeared in the Philadelphia Bar Association’s “Upon Further Review” on October 8, 2010 and can also be found here on my website.

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