Our parish has recently filed a federal lawsuit against the Borough of Kennett Square. The suit alleges that a number of actions by the borough are illegal and unconstitutional. These borough actions include: a) the borough’s opposition to the Church’s request for a zoning special exception, b) the recent approval of an ordinance to open Chestnut Alley, and c) the zoning ordinance amendments and an historic preservation ordinance designed to stop or severely restrict our school expansion.

The case will originate at the federal court level because both federal law and constitutional issues are involved. The suit charges that the borough’s actions constitute violations of the federal Religious Land Use and Institutionalized Persons Act of 2000 as well as the “equal protection clause” of the Fourteenth Amendment to the U. S. Constitution.

The Religious Land Use Act requires that local zoning laws treat churches on “not less than equal terms” with other assembly uses and sets a high standard (called “strict scrutiny” by the courts) for judicial review of ordinances that burden the free exercise of religion. This Act passed the U.S. House and Senate by unanimous consent on July 27, 2000. George Brutscher, Esq., the parish’s attorney in the case, believes that the parish’s experience with the borough is exactly the kind of situation that this federal law is designed to address.

The local law offices of Brutscher, Foley, Milliner and Land, LLP will continue to represent the parish in the federal lawsuit. The lead law firm in the case will be Stradley and Ronan of Philadelphia, a firm that regularly represents the Archdiocese of Philadelphia on legal issues.

George Brutscher anticipates that the case will not be heard in Philadelphia District Court until next winter, with a decision expected in about one year. Should either party to the suit so desire, an appeal from the District Court decision could then be made to the federal Third Circuit Court of Appeals. Brutscher is confident of a positive outcome in the case since he believes that both federal law and the federal constitution support the position of the parish.

The long saga leading to the present lawsuit began in January 2000 when the parish began the process of purchasing 227 Lafayette St. property behind the existing parish site. The parish was then and is now in need of room to expand to meet current and future parish needs for meeting space and future initiatives.

By the summer of 2000 the pastor and the school principal developed a proposal to use the 227 Lafayette St. property as the location for a new full-day kindergarten program as well as a pre-kindergarten academic program for the parish. Neither of these programs, common in the Archdiocese, can be accommodated in our present school facility.

In September 2000 the parish filed the required paperwork to request a zoning exception to permit the expansion of our school programs into the 227 Lafayette St. property. Father Sharrett received a far more complicated application packet for the zoning exception within a few weeks and it was at this point that the parish engaged legal counsel.

By law, an applicant for such a zoning exception must receive notice of a hearing on the matter within 60 days of the application. Nine months went by before a hearing was scheduled. This delay occurred despite repeated requests by the parish to schedule the hearing. Only when the parish considered the use of “deemed approval” to claim the exception did the borough agree to schedule a hearing.

The first zoning hearing was held on June 27, 2001. This meeting, which was well attended by both proponents and opponents of the requested exception, was both long and contentious. Although a second hearing was scheduled for August 4, 2001, there was so much concern voiced by the borough and the Save Our Neighborhood group that the parish agreed to a series of meetings with the neighbors' group to try to resolve the issue amicably.

Over the next several months many meetings were held between representatives of the borough and the Save Our Neighborhood group both at the parish and the Quaker Meeting House. A highly experienced and effective negotiator facilitated the early meetings in the series. The neighbors' group ultimately rejected his involvement because he happened to be a member of St. Pat’s parish.

Parish representatives to the meetings soon were confronted by a series of tactics commonly used by professional negotiators to wear down and frustrate those on the other side of an issue. These tactics included rejecting the location of meetings, changing the agenda for a meeting at the last minute, and arguing over who should attend meetings as representatives of the different groups.

By November Father Sharrett and the parish representatives to the meetings concluded that the meetings were simply a delaying tactic on the part of the borough and the Save Our Neighborhood group and that the meetings offered no chance of resolving the issue. At this point the parish decided to again pursue its legal right to request a zoning exception through the zoning board.

During this same time period the parish bought additional properties adjacent to the parish property and developed preliminary architectural drawings for a new three-story school facility. The early architectural drawings indicated that the parish would be severely constrained for sufficient room for the school with no space available for either a playground or parking.

Nevertheless, the parish was asked to sign a legal understanding with the borough that the parish would not attempt to buy additional properties for up to 25 years, that property now owned south of the parish line ought to be resold, and that any attempt to negotiate with the Leach family regarding future purchase was absolutely unacceptable.

The borough stated that if we wished to do something with the three properties closest to Cypress St. and immediately behind the school we could, and that the borough would assist us with all speed on zoning issues, demolition and building permits, and would vacate the length of Chestnut Alley from the parish’s present property line all the way to Cypress Street. We were told that if we did not agree to this we would suffer the consequences.

During this period several ideas were floated for the parish to buy other properties within the borough and even to move the parish out of the borough. The parish had examined this latter idea about 10 years ago and discovered that it would have cost about $20 million in 1993 dollars to purchase and prepare the land and to duplicate all existing parish facilities. This cost is simply beyond the financial capacity of the parish. All of the sites proposed within the borough were in industrial or commercial areas that are not considered suitable for a church or a school.

In December 2001 our legal counsel informed the Kennett Zoning board that we were reactivating the suspended hearings. The borough hired legal counsel and, along with the Save Our Neighborhood group, presented themselves at all future zoning hearings in an adversarial position to St. Patrick Church. A long series of three-hour zoning hearings then began and continued until April of this year.

It soon became obvious that Chestnut Alley and its use were to be the focus of both the borough and the neighbors' group in contesting the request for a special exception. Traffic experts from both sides presented testimony on the issue over several meetings. It should be remembered that all of the discussion thus far dealt only with the 227 Lafayette St. property. In late spring 2002 the parish completed a zoning application for a package of three properties that it had purchased immediately behind the school and church – 201, 203 and 205 Lafayette St.

This zoning application was made, the fees were paid, and the application was rejected as “incomplete” in the first week of June 2002. That same day the borough created new zoning and historic use restrictions that had not previously existed in the borough or in the R-3 zoning classification in which St. Patrick Church is located.

The zoning hearings on the 227 Lafayette St. property continued to drag on despite the fact that little more could be said on either side of the argument. Finally, all sides of the issue agreed that there would be no more hearings and that the zoning board would render a decision by late April.

To everyone’s surprise, suddenly a resolution to adopt a new ordinance was passed on March 17. This new ordinance reopens Chestnut Alley during school hours, thus reversing a half-century of cooperation between the borough and the parish to protect the safety of our school children.

A public meeting was called for comment before the borough council meeting on March 31. The rules for this meeting were such that people could comment on the proposed ordinance but could not ask questions of the council members about it. More than 300 people attended this meeting with an overwhelming number strongly supportive of the parish’s position. The ordinance was eventually passed by a 6-1 vote of borough council and later vetoed by the mayor. The council subsequently overrode the mayor’s veto.

In late April the zoning board formally rejected the application for a special exception that had been applied for by the parish more than two and one-half years before. Interestingly, one of the reasons cited for rejecting the special exception request was the opening of Chestnut Alley – a circumstance that resulted from the new ordinance passed by borough council only a month before.

The parish, its legal counsel and the Archdiocese considered what could now be done after almost three years of struggling to meet the facility and space needs of the parish. It was quickly realized that legal redress was our only remaining option. Thus the parish filed the federal lawsuit as discussed in the first paragraphs of this article. 

SOURCE:  St. Pat's Today,  June 2003.