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Militant Islam Monitor > Articles > Jihad in PA backyards: Saudi run Foundation for Islamic Education granted expansion school and youth camps:text of ruling

Jihad in PA backyards: Saudi run Foundation for Islamic Education granted expansion school and youth camps:text of ruling

September 26, 2006

MIM: The first zoning board decision that was scheduled for August 10th was postponed. Incredibly, the Foundation for Islamic Education had intended to hold a Young Muslims 'Jihad Camp' retreat which was hosting several of the same speakers who had taught at a 2001 Jihad Camp in Pennslyvania.

The administrators of the FIE were forced to cancel the camp, because they had been caught trying to violate several of their zoning agreement. Having terror linked speakers, who openly supported suicide bombings, and Jihad and martyrdom, were not enough reason to warrant banning the event as a security risk according to the standards of the Lower Merion Council and town Commissioner Rozenzweig,who said claimed that the problems with FIE "had little to do with the fact that it was an Islamic Institution".

That may well have been the case when the residents first began to complain about the problems which the FIE was causing by their brazen disregard for the neighborhood, but after being given information about the FIE's direct association with the Saudi government and Al Azhar University in Cairo ( the headquarters of the Muslim Brotherhood) the FIE should have been labelled a radical Islamist hub, which is training and disseminating a Wahhabist ideology and was literally preaching Jihad in the backyards of Lower Merion.

The zoning breaches which resulted in the FIE cancelling the planned Young Muslims retreat in August included:

1) Holding a retreat in excess of the six which were permitted a year under their zoning contract

2)Having more then 50 people (postings on the Young Muslim website announced the expected turnout to be 100 or more)

3) The retreat was scheduled for more days then was permitted for overnight accomodations according to the zoning rules.

MIM: An article by Jeff Price, who broke the story in the Philadelphia Inquirer, reported on the council decision:

Zoning limits Muslim group

http://www.philly.com/mld/inquirer/news/local/15607877.htm

Lower Merion set terms for how Villanova Islamic foundation uses property.

By Jeff Price
Inquirer Staff Writer

The contentious relationship between the Foundation for Islamic Education and its Villanova neighbors has produced a new zoning order, but it's not clear if either party will accept it.

Both sides have almost three weeks remaining to file a court appeal of the Sept. 14 order by the Lower Merion Township zoning board, setting terms and conditions under which the residential property can be used as a mosque for Islamic services and education.

As recently as last week neither the attorney for the residents nor for the foundation had held detailed talks with their clients about the order. And residents, because the foundation admitted violating the original 1994 order, want to know how the new one will be enforced.

A key security concern of the neighbors has been to whom the foundation rents the 23-acre grounds on Montgomery Avenue for weekend retreats. A five-day retreat scheduled for Aug. 2-6 was canceled because it exceeded a 12-year-old rule limiting retreats to three days.

Township zoning officer Michael Wiley and Commissioner Phil Rosenzweig said yesterday that they had heard complaints from activists that a speaker at the planned August retreat had voiced support in 2001 for suicide bombing.

Wiley and Rosenzweig said they had not investigated because the foundation had canceled the event. Neither the foundation's attorney, Fred Fromhold, nor an official from the foundation could be reached for comment yesterday on the complaint; both declined last week to discuss specifics of the zoning order.

In 2004, after residents had complained that the foundation violated its original zoning order by housing homeless people, the foundation applied to the zoning board to expand activities and operations at the mosque, which led to the most recent zoning action.

Although the neighborhood, according to residents, is roughly 50 percent Jewish, no one cited religion as an issue. "It has very little to do with the fact it is an Islamic institution," Rosenzweig has said. "It's about following the rules and being a good neighbor."

In the new decision, the three-member panel wrote that it "does not have the discretion to punish violations of prior board orders by refusing a subsequent zoning application." The board then approved operation of an elementary school, which had been begun in 1999, and a summer camp, which operated in 2004.

But, in a ruling bearing directly on neighbors' concerns about the retreats, the board refused to allow the foundation to hold the six yearly sessions less than 30 days apart and "will impose conditions requiring the foundation to take an active role in reviewing applications for retreats to insure their religious nature and to provide supervision and security."

The order stipulated that the foundation must limit retreat attendees to 50, must review all retreat applications, must provide the township with a copy and a statement that the gathering is for religious purposes.

Despite tougher restrictions, Jim Greenfield, attorney for 26 nearby families, said residents were concerned "how do you determine when there is a violation?"

Wylie said his office, to which the foundation must file copies of retreat papers, "will have to see if we agree that the event is religious in nature."

If violations of the zoning order continued after the foundation were warned, Wiley said, it could be fined or a court injunction imposed. Neighbors also have the right to sue under zoning laws.

For his part, Rosenzweig said he will ensure the order, which he termed "one of the most sophisticated I've ever seen," is "rigorously enforced."

He noted that because most of the neighbors' complaints involved weekend activities, violations fell through the cracks: The zoning office was closed, and police were often not aware of the restrictions.

"Now police have been apprised of all special conditions," Rosenzweig said.

Contact staff writer Jeff Price at 610-313-8124 or jprice@phillynews.com.

BEFORE THE

ZONING HEARING BOARD OF

LOWER MERION TOWNSHIP, MONTGOMERY COUNTY

PENNSYLVANIA

_______________________________

APPEAL NO. 3975

_______________________________

IN THE MATTER OF: : Applicant - Appellant

:

Foundation for Islamic Education : 1860 W. Montgomery Avenue

: Villanova, PA 19085

MEMORANDUM, OPINION & ORDER

Background

Foundation for Islamic Education (the "Applicant" or "Foundation") owns the property at 1860 W. Montgomery Avenue in Villanova (the "Property"). Zoned R-1 Residence, the 22.85-acre Property was the site of the Northeastern Christian Junior College, which operated from 1959 to 1993 in the 6 buildings on the site: Boone Hall (the main educational building), 2 administration buildings, 2 dormitories, and a gymnasium/activities center. The Property is also improved with athletic fields, driveways and parking areas for 100 vehicles.

In 1993, the Applicant agreed to purchase the Property in order to provide the local Muslim community with a site for a Mosque and a religious education center. Acting on the Applicant's request, on July 7, 1994, the Board granted the Applicant a special exception to operate a religious use on the Property, subject to a number of conditions that limited the scope of the activities on the site. That decision is incorporated herein. Foundation for Islamic Education, Appeal No. 3299 (July 7, 1994) ("FIE I"). The Board will also refer to certain exhibits produced at the hearing on FIE I that were incorporated into the Board's decision in that matter.

In the years since 1994, the Applicant's use of the Property has grown far beyond the parameters and conditions set out in the Board's decision in FIE I. Most significantly, in 1999, the Applicant set up without Board approval a nonpublic, nonlicensed pre-K through 3d grade day school on the Property. The school, called the "Villanova Academy for Honor Studies" (the "Academy"), has since grown from 24 students and 5 staff to a K-6 facility with a student population of 93 and a professional staff of 16, operating on a standard public school calendar.[1] In addition to opening the Academy, the Applicant has operated summer camps, held community meetings, leased space for use as a restaurant, and expanded the residential use and the number of weekend retreats on the site – all without Board approval.

Needless to say, the neighbors voiced concerns to the Applicant about the expansion of the uses on the Property over the years, but did not pursue formal enforcement action with the Township. The discussions between the neighbors and the Applicant ultimately led to the Applicant filing a request in 2005 for a special exception to keep the Academy and to expand the religious uses previously permitted. The specifics of the application will be discussed below.

The Board held hearings on the application on November 10, 2005 and May 11, 2006. Between the hearings, the Applicant and the neighbors continued without success to try to agree on certain limits on the use of the Property. Following the hearings, the Applicant granted the Board an extension to September 30, 2006 for the issuance of a decision.

For the reasons that follow, and except as specifically set forth, the Board grants the requested special exceptions, subject to specific required conditions.

The Special Exception for a Certified Educational Institution

The Lower Merion Zoning Ordinance allows by special exception any existing residentially-zoned building to be used for a certified educational institution. Code §155-11 S(1)(e). The Ordinance defines "certified educational institution." as:

A private nonlicensed elementary or secondary school which has a certificate from the Pennsylvania State Board of Education or any private educational institution, other than an accredited educational institution, conforming to this chapter which operated in the Township on June 17, 1998.

Code §155-4 B ("Certified Educational Institution").

The educational consultant hired by the Applicant testified that in order to register with the Commonwealth of Pennsylvania, the Department of Education ("DOE") requires only that the operator of a day school run by a religious body file an affidavit stating that the school offers certain mandatory courses set forth in the Public School Code. [N.T. 11/10/05, pp. 13-15][2] No other approvals or certificates are required. [Id., pp. 17-20] The Academy filed the required affidavit, which was acknowledged by the DOE. [Exhibit A-2]

In addition, the Academy receives a per-student stipend from the DOE for educational materials and receives reading and math services from the Montgomery County Intermediate Unit. [Id., pp. 24-26] It operates on the standard 180-day public school calendar (Monday through Friday, September through June). [Id., pp. 43-44] Nine different public school districts currently bus a total of 33 students to the Academy. [Id., pp. 45-46] The Academy offers instruction in grades K through 6 and plans to expand to encompass grades K through 8 with a total maximum student population of 130. There will be 14 teachers/staff, 2 co-principals, and 1 director at the school. [Id., pp. 41-43; Exhibit A-4] Based on the testimony and evidence presented, the Board finds that the DOE's "official acknowledgement" of the Academy's affidavit under the Public School Code functions in this circumstance as the "certificate" required by the Lower Merion Zoning Ordinance's definition of "certified educational institution." As a private nonlicensed elementary school, the Academy thus meets the definition. It is permitted by special exception to operate in the existing Boone Hall on the Property. Code §155-11 S(1)(e).

A special exception is not an exception to the zoning ordinance, but rather is a use to which an applicant is entitled unless the Board determines, according to standards in the zoning ordinance, that the proposed use would adversely affect the community. East Manchester Township Zoning Hearing Board v. Dallmeyer, 147 Pa. Cmwlth. 671, 609 A.2d 604 (1992). Once an applicant satisfies its burden of proving that the proposed use meets the specific and objective criteria under the zoning ordinance, a presumption arises that the use is consistent with the public health, safety and welfare. Id. The burden then shifts to any objectors to present evidence of a high degree of probability that the use will substantially affect the health and safety of the community. Id. The objectors' burden in these cases involves more than merely showing an adverse impact. When the Lower Merion Board of Commissioners permits a use by special exception, it is exercising the legislative judgment that such uses, in the ordinary case, will not negatively impact the public welfare. The objectors, therefore, have to prove that the adverse impact on the public welfare is greater than that normally expected with that type of use. Accelerated Enterprises, Inc. v. The Hazle Township Zoning Hearing Board, 773 A.2d 824 (Pa. Cmwlth. 2001).

The testimony of the Applicant's witnesses proved that the proposed use is a "certified educational institution." The testimony also proved that allowing the special exception will not be contrary to the public interest within the meaning of Code Section 155-114 A(2), and will not adversely affect the public health, safety and welfare within the meaning of Code Section 155-114 C. There will be negligible impacts on neighborhood traffic, and the Property is large enough to accommodate internal traffic, vehicle queuing and parking. [Generally, N.T. 11/10/05, pp. 112-117; Exhibit A-8] The extracurricular activities on the Property are limited. The Applicant holds an annual fundraiser for the Academy, as well as a game night and "back-to-school" night, but there are no after-school sports or student activities of any kind. The school day ends at 3:25 p.m. [N.T. 11/10/05, pp.33-34, 59-60] In comparison to the neighborhood impacts from the many educational uses that have come before this Board over the years, the Academy's impacts are among the least intensive in terms of student and staff population, traffic, and outdoor activities.[3]

In addition, the Applicant is required by the Board's decision in FIE I to maintain a 100-foot setback from all existing property lines, to restrict vehicular access to one point on Montgomery Avenue, to control outdoor lighting and to provide a landscaped buffer. Those conditions will likewise be imposed in the present decision.

The neighbors who testified in opposition to the application expressed frustration with the Applicant's failure to adhere to the previous conditions imposed in FIE I and its failure to obtain the required special exception before opening the Academy. The Board understands those frustrations, and makes the following observations.

First, Article VI of the Municipalities Planning Code ("MPC") details the provisions regulating enforcement of zoning laws. Among the remedies in the MPC is Section 617, which not only empowers the municipal governing body to enforce its zoning ordinance, it allows any landowner "substantially affected" by a zoning violation on another's property to bring legal action to restrain the violation. Siegmond v. Duschak, 714 A.2d 489 (Pa. Cmwlth. 1998); 53 P.S. §10617. Section 617 also applies to situations, like the present one, where a landowner fails to adhere to the terms of a previous grant of a special exception. Babin v. Lancaster, 89 Pa. Cmwlth. 527, 493 A.2d 141 (1985).

Second, the Lower Merion Zoning Ordinance contains both specific and general criteria applicable to the Applicant's requested educational use. Code §§155-11 Y, 155-114. None of those criteria permit the Board to refuse a special exception because the Applicant has not adhered to past Board decisions relating to the use of the Property. The Commonwealth Court has also held that a zoning board does not have the discretion to punish violations of prior board orders by refusing a subsequent zoning application. Bell v. Zoning Board of Adjustment of the City of Pittsburgh, 84 Pa. Cmwlth. 347, 479 A.2d 71 (1984).

In no sense does the Board condone the Applicant's failure to adhere to the Board's decision in FIE I, but there are well-defined statutory remedies for that failure.[4]

Finally, and with specific regard to the requested special exception for the educational use in this matter, the neighbors who testified did not identify any adverse impacts that would result (or had resulted to date) from the operation of the Academy. Cf., Hannon v. Zoning Hearing Board of the City of Wilkes-Barre, 32 Pa. Cmwlth. 356, 379 A.2d 641 (1976) (conduct at illegal boarding house supported conclusion that permitting boarding house would adversely affect health, safety and welfare). Rather, the neighbors were primarily concerned with the backgrounds and activities of the adults who resided at the Property and the attendees at the "retreats" approved by the Board in FIE I. [See, N.T. 5/11/06, pp. 82-105] Those matters will be addressed below. But as for the Academy, the Board will grant a special exception, subject to the conditions stated in the Board's Order set forth at the conclusion of this Opinion.

The Special Exception for a Summer Camp

The Applicant also requests a special exception to allow a summer camp on the Property. The 6-week camp was started without Board approval in 2004, offering sporting activities, arts and crafts, computers and education in Arabic and Islamic studies for 12 campers. [N.T. 11/10/05, pp. 82-83] The Applicant now requests approval for a 6-week camp, to be held from mid-June to August each year, with enrollment capped at 30 campers, ranging in age from 4 to 12. The camp would operate Monday through Friday from 9 a.m. to 4 p.m. [Id., pp. 85-88]

The Board has generally characterized a school's summer camps of limited-duration offering sporting and educational activities as a lawful expansion of an educational institution, permitted by special exception. E.g., Bryn Mawr College, Appeal No. 3950 (February 10, 2005) (permitting summer sports camps). In this matter, the camp will not be operated by the Academy as an extension of its educational use, but will be run by the Foundation itself. [N.T. 11/10/05, pp. 36, 87-88] The Board finds that this use is permitted by special exception as an expansion of a nonresidential religious use. Code §§155-11 S(4), 155-11 X.

The Applicant proved that the proposed camp, like the Academy, will not be contrary to the public interest within the meaning of Code Section 155-114 A(2), and will not adversely affect the public health, safety and welfare within the meaning of Code Section 155-114 C.

The same reasoning that the Board stated with regard to the Academy applies to the camp. Although the camp was started without authorization, that is not a sufficient reason in itself to deny the application, which otherwise meets the objective criteria in the Zoning Ordinance. Bell, supra. Any landowner who violates the Ordinance, or violates a Board order or condition, is subject to the MPC's civil penalties, enforcement remedies, and neighbor lawsuits. 53 P.S. §§10614, 10616.1, 10617, 10617.2. Nevertheless, to address the neighbors' concerns regarding outdoor noise during the summer, the Board will expand the condition previously imposed in FIE I to prohibit the use of any mechanical sound-enhancing device on the Property.[5]

The Special Exception to Expand Existing Religious Uses

The Applicant requests a special exception under Code Section 155-11 X to expand several of the religious uses that were previously approved in FIE I.

The Board notes that the Applicant has not requested approval for any expansion of the permitted number of attendees for the 5 daily prayers that are held every day from sunrise to late evening. In FIE I, the Board approved attendance figures at those prayer services as follows:

Sunrise (Fajr) 5-8

Noon (Zuhr) 15-23

Afternoon (Asr) 15-23

Sunset (Maghrib) 23-38

Late evening (Isha) 23-30

[FIE I, Exhibit A-6] Attendance at these prayer services during the month of Ramadan was permitted to increase up to 25 percent. [Id.] Because no relief was requested with respect to these daily prayers, attendance may not exceed the figures approved in FIE I.

This leads to a brief discussion of the Board's use of attendance figures to regulate the intensity of the uses on the Property. Ordinarily, and particularly since the Zoning Ordinance was amended in 1998 to more closely regulate the expansion of religious and educational uses in the Township, the Board limits the size of a religious institution by referring to the size of its congregation. Indeed, the attendance figures submitted by the Applicant and approved by the Board in FIE I were based on a "congregation" (a term used at that time in the Applicant's exhibits) of 150 families. The Applicant also used the term "congregation" in its initial testimony in this matter on November 10, 2005. [N.T. 11/10/05, pp. 83, 99] At the May 11, 2006 hearing, the Applicant referred at various times to "members" of its "community." When asked to clarify how the Foundation operates, the Applicant's general manager, Manal El-Menshawy, testified that the Foundation does not have members. [N.T. 5/11/06, pp. 46-47] Nor does it maintain a list of all the attendees at its services. [Id., p. 50; Exhibit A-11 "Schedule of Activities"]

Since the Foundation does not have an established congregation or membership, the Board will set limits based on the number of "attendees," the term more often used during the hearings.[6] Any increase in the number of attendees approved by the Board in this decision (or in FIE I if no relief has been requested for a particular religious use) will constitute an expanded use requiring a new special exception. Code §155-11 X.

1. Friday Juma Prayer

In FIE I, the Board approved a "Prayer/Religious Service Schedule" submitted by the Applicant. It included Friday Juma prayer, with an anticipated attendance at of 60-90 people. [FIE I, Exhibit A-6] Attendance at this service has since grown to 100-120 people. [N.T. 5/11/06, p. 16; Exhibit A-11] Applicant requests that the Board approve a limit of 150 people, to include the Muslims working in the area who just attend this Friday service. [Id., pp. 50-51]

The Board will grant the special exception to allow this expanded religious use. It will not be contrary to the public interest within the meaning of Code Section 155-114 A(2), and will not adversely affect the public health, safety and welfare within the meaning of Code Section 155-114 C. The parking requirements and conditions associated with this expanded use, and the other expanded uses approved in this decision, will be addressed below.

2. Ramadan

The Foundation did not specifically request in its application any relief with regard to the attendance at services during the Islamic month of Ramadan. [See, Applicant's Application and Amended Application] The Board's decision in FIE I approved a 25% increase in attendance during Ramadan over the attendance at the regular daily prayer services. [See Exhibit A-6 from FIE I] Using that figure, the maximum attendance during Ramadan would be limited to 112 – which represents a 25% increase above the most-attended prayer service (90 at the Friday Juma prayer). However, during the hearings, the Applicant offered Exhibit A-11, a chart that summarizes the existing and proposed "Schedule of Activities" on the Property. That chart indicates that attendance at Ramadan currently reaches 300 attendees for the Saturday and Sunday Iftar and up to 100 attendees remain after the Iftar dinner.[7] Attendance at the weekday services during Ramadan is 30-50 people. Ms. El-Menshawy testified that the Applicant was requesting Board approval for these attendance figures. [N.T. 5/11/06, p. 15]

The Board considers Exhibit A-11 to be an amendment to the application and grants a special exception to allow a maximum attendance at prayer services during Ramadan as follows:

Monday-Friday 50 attendees

Saturday-Sunday 300 attendees for Iftar

Saturday-Sunday 100 attendees after dinner

There was no evidence that the current levels of participation at these services has resulted in any adverse impact on the neighboring community. The Board finds that the

use will not be contrary to the public interest within the meaning of Code Section 155-114 A(2), and will not adversely affect the public health, safety and welfare within the meaning of Code Section 155-114 C.

3. Eid Holidays

Attendance at the two Islamic holidays of Eid al-Fitr and Eid al-Adha was limited in FIE I to 150 people. [Exhibit A-6 from FIE I] Attendance currently reaches 400 people. [N.T. 5/11/06, p. 51; Exhibit A-11] Services are conducted from 8 a.m. to 1 p.m. [Id.] As was the case with the Ramadan services, there was no evidence that the increased levels of attendance at the Eid celebrations has resulted in any adverse impact on the neighboring community. The Board will grant the requested special exception to expand the religious use of the Property to allow up to 400 people to attend these two services.

4. Religious Instruction

In FIE I the Board approved the use of the Property for religious instruction on Saturday and Sunday from 10 a.m. to 4 p.m. [Exhibit A-7 from FIE I] The number of students was limited to 40 children (with 5 instructors, up to 4 aides, and 5 parents) and 10 adults (with up to 2 instructors). [Id.] Applicant now requests a "Sunday School" for religious instruction of children aged 4-15 years. [N.T. 5/11/06, pp. 19-21; Exhibits A-12 and A-13] The Sunday School would operate from September to June, from 10 a.m. to 2 p.m. in the former boys dormitory of the Northeastern Christian Junior College. [Id., p. 22] Enrollment would be limited to 150 students, with a staff of 12. There would be concurrent adult prayer from 1:30-2:00 p.m., attended almost exclusively by parents of the Sunday School students.[8]

As with the other religious uses described above, and for the same reasons, the Board will grant a special exception for the Sunday School. There was no evidence that this use had (or would have) any extraordinary adverse impact on the public health, safety or welfare.

5. Retreats

In FIE I, the Board approved the use of the Property for religious retreats, but limited their number and duration. The Board's order limited the retreats to no more than 6 in any calendar year, with at least 30 days between the end of one retreat and the beginning of another. They were also limited to weekends (from Friday after 4:00 p.m. to Sunday at 10:00 p.m.).

The testimony at the hearings in this matter proved that the Applicant has not been sufficiently involved in the operation of the retreats during the past several years. The Foundation did not produce any records of what persons or entities had held retreats on the Property and could not describe in any detail what the agendas of the retreats were. [N.T. 5/11/06, pp. 12-13,106-114]

The retreats that the Board permitted in 1994 can continue as long as they remain religious in nature. The Property cannot be used by outside groups for, in essence, a hotel/conference center, even if there is some religious aspect to the weekend's events. Camp Ramah in the Poconos, Inc. v. Zoning Hearing Board of Worcester Township, 743 A.2d 1019 (Pa. Cmwlth. 2000).

Here, the Applicant described the retreats as involving religious services and religious education workshops. [N.T. 11/10/05, p. 90] A portion of the retreat weekend is also devoted to recreation. [Id.] Based on this testimony, the Board finds, as it did in FIE I, that the weekend religious retreats are a religious use permitted by special exception. Diocese of Altoona-Johnstown v. Zoning Hearing Board of the Borough of State College, 899 A.2d 399 (Pa. Cmwlth. 2006) ("Catholic student center" permitted as an accessory part of a religious use). However, the Board will impose conditions requiring that the Foundation take an active role in reviewing applications for retreats to insure their religious nature, and to provide supervision and security during the entire period of the retreats.

The Board notes that the Applicant originally sought a special exception under Code Section 155-11 S(4) "to increase the number of retreats permitted." [Amended Application, p. 3] Exhibit A-11 indicated a request of 12 retreats per year. At the hearings, however, the Applicant's witnesses ultimately scaled back that request to the same number as previously approved (6), but with a two-week period in between, rather than the 30-day period required in FIE I. The Board will not alter the original approval, except to impose more stringent conditions on the operation of the retreats.

The neighbors did not produce any substantial evidence that the religious retreats have had (or would have in the future) an extraordinary adverse impact on the public health, safety or welfare. However, the Board agrees with the point made during the neighbors' examination of the Foundation's witnesses that the Foundation has not taken sufficient steps in the past to insure that the retreats are indeed being held for a religious purpose. The Board's additional conditions address that.[9]

6. Lectures

The Applicant proposes to continue the monthly religious lectures that the Board approved in FIE I. [See Exhibit A-7 from FIE I and Exhibit A-11 from the present matter] These are held on Saturdays from 7:30 p.m. to 9:30 p.m. The Applicant has not requested any expansion of this religious use, but as one of the conditions on the grant of the other special exceptions outlined in this opinion, the Board will limit the attendance at these lectures to 50 persons.

The Board notes that Applicant's Exhibit A-11 states that there are "educational/social/recreational gatherings" on Saturdays in the gym. These are stated to be "children whose parents are attending lectures, etc. " [Exhibit A-11; emphasis supplied] Although the Applicant did not specifically request approval for any educational, social or recreational use of the gym on Saturdays, the exhibit notes that such a use is "proposed. " So, to the extent that Exhibit A-11 requests permission to allow any gathering in the gym on Saturdays, that request is denied. The same will be ordered with regard to the "monthly community meetings" lasting 2-3 hours on Saturdays listed on Exhibit A-11. The Applicant offered no testimony that would qualify these meetings as a religious use.

7. Weddings and funerals

Religious weddings and funerals are plainly part of a religious use permitted by special exception under the Zoning Ordinance. Code §155-11 S(4). In FIE I, the Board limited weddings to "approximately" 6 per year (the term was used in the Exhibit approved by the Board). Funerals were allowed on an "as needed" basis. The Applicant testified that there were 2 weddings in 2004 (with an average of 50 attendees) and 4 weddings in 2005 (with an average of 125 attendees). There were about 2-3 funerals per year. [N.T. 5/11/06, pp. 17-18; Exhibit A-11] It requested approval for "maybe" 6 weddings and 5 funerals per year. [Id.]

The Board believes that in this particular category of religious use, it is inappropriate to set a numerical limit on the number of events permitted. The Applicant could not know in advance how many weddings or funerals might be requested or needed in any given year. Instead, it makes more sense for the Board to require that the event be connected with the Foundation and that the number of attendees be controlled. That is made more difficult in this case because, as discussed above, the Foundation does not keep an accurate record of those people who attend services at the Property. Consequently, the Board will require, as a condition of the relief granted in this matter, that the Applicant maintain a record of the names of the persons who regularly attend services. That record of "attendees" will be the basis for determining compliance with those aspects of relief that would otherwise rely on a "congregation" or "membership."

So, with specific regard to the weddings and funerals, the Board grants a special exception to allow weddings and funerals for the regular attendees (and their families) listed on the records of the Foundation. Attendance at weddings will be limited to 150, as requested by the neighbors. In addition, the Applicant will be required to provide traffic control and parking accommodations for all weddings and funerals.

The Residential Use of the Property

The Applicant requests that it be allowed to increase the accessory residential use of the Property. [Amended Application, ¶6F] In FIE I, the Board expressly limited that residential use. Overnight sleeping and living accommodations were permitted as may be ancillary to the approved uses (e.g., the weekend retreats). Residents were limited to support staff and their families only, up to 4 such families. [FIE I, Order ¶4]

In fact, there have been up to 8 separate families residing on the Property. [Exhibit A-10] The Foundation's Director occupies the main house. Another family resides in the main building adjacent to the kitchen. Although currently vacant, the security building was the home to the Foundation's security guard. Five other individuals and/or families live in rooms in the former college's girls' dormitory. [Id.] In addition, the Applicant was allowing homeless refugees to live on the Property under an arrangement with the State Department. It also participated in the Interfaith Hospitality Network in which religious groups throughout the Township provide temporary housing for the homeless. [N.T. 11/10/05, pp. 7-9][10]

Applicant's amended application in this matter requested permission for 12 families to reside on the Property. [Amended Application ¶6F; N.T. 5/11/06, pp. 22-23] At the hearings, it reduced that request to 6 apartments in the girls' dormitory in addition to the 3 other existing residences (main house, main building and guard building). Applicant also requested that occasional overnight guests be permitted in a separate apartment in the girls' dormitory. [N.T. 5/11/06, pp. 23-27]

The neighbors' chief concern is that the Applicant has not adhered to the Board's prior decision and has not requested Board approval before putting the Property to a new or expanded use. The Board shares that concern.

The request to expand the religious use of the Property to allow additional residential occupancy will be denied. Section 155-11 S(4) of the Zoning Ordinance was amended in 1998 to change the uses allowed by special exception from "religious use and hospital" to "nonresidential religious use." The Board interprets this change to reflect the Commissioners' legislative intent to draw a distinction between a residential use that could in the past have been characterized as "religious" and other religious uses that do not have a residential component (e.g., church, temple, mosque).

The Applicant will limit the residential use of the Property to that permitted in FIE I – Foundation support staff and their families. No more than 4 such families shall live on the Property at any one time. Such overnight sleeping and living accommodations as may be ancillary to the approved Retreats will be allowed pursuant to the Board's previous decision.[11]

Parking

The Board in FIE I accepted the Applicant's calculation of its required parking spaces. Based on the uses requested in that matter and on the sizes of the existing buildings, the Board required that 98 spaces be provided. [Exhibit A-14 from FIE I][12] There are 100 parking spaces on the Property. [N.T. 11/10/05, p. 116]

The Applicant does not propose to provide any additional off-site parking. It claims that the existing parking is more than adequate to accommodate the proposed expanded uses of the Property.

The Zoning Ordinance requires that a new educational use, such as that approved in this matter, provide parking facilities:

Educational uses, including student residence halls, day care and nursery schools.

1. Number of spaces required.

a. One and one-half spaces per two students/participants of driving age;

b. One space per faculty/staff member or volunteer;

c. One visitor space per 25 students/participants; and

d. One space per five seats, or 50 square feet of floor area where seating is not installed, for the largest place of public assembly on the site, except that parking for assembly places to be used no more than six times a year may be accommodated on unpaved areas, if their availability can be demonstrated.

Code §155-95 AA(1).

This Section requires that the Applicant provide 17 staff spaces and 6 visitor spaces (for 130 students). Since the largest area of public assembly has not changed, no additional spaces are required under that subsection. None of the students will be of driving age.

Under Section 155-95 AA(4), the Board waives 50% of the required 23 spaces (11 spaces). The testimony of Applicant's traffic expert established that while the Academy is in session most of the parking spaces are vacant. The remaining 12 spaces required under the Zoning Ordinance may be held in reserve pursuant to Section 155-95.1.

The Zoning Ordinance does not require that religious uses provide parking spaces for the occasions (usually the religious holidays) on which more than the usual number of participants attends a service. So the Applicant does not have to provide 400 spaces for the services on the Eid holidays. However, the Board will condition the special exception allowing the expansion of the religious uses in this matter on the Applicant providing traffic control and on-site parking accommodations on those days when more than 100 vehicles are used by those on the Property at any one time.

Based on the above, the Board issues the attached order.


O R D E R

AND NOW, this 14th day of September, 2006, it is hereby:

1. ORDERED that the application of the Foundation for Islamic Education for special exceptions under Code §155-11 relating to the use of the Property at 1860 W. Montgomery Avenue in Villanova is GRANTED as follows:

a. A special exception is GRANTED under Code §155-11 S(1)(e) to operate a K-8 certified educational institution with a total maximum student population of 130, and a total staff of 17.

b. A special exception is GRANTED under Code §§155-11 S(4) and 155-11 X to expand a religious use to include a summer camp operated by the Foundation, to be held during six (6) consecutive weeks beginning in mid-June to August each year, with enrollment capped at 30 campers, ranging in age from 4 to 12. The camp shall operate only Monday through Friday from 9 a.m. to 4 p.m.

c. A special exception is GRANTED under Code §§155-11 S(4) and 155-11 X to expand the maximum attendance at religious services and activities as follows:

(1) Friday Juma Prayer – 150 attendees

(2) Ramadan –

Monday-Friday 50 attendees

Saturday-Sunday 300 attendees for Iftar

Saturday-Sunday 100 attendees after dinner

(3) Eid Holidays – 400 attendees

(4) Sunday Religious School –

150 students

12 staff

September through June, 10 a.m.-2 p.m.

Concurrent adult prayer for parents of students 1:30 p.m.-2:00 p.m.

(5) (a) Weddings and funerals for the regular attendees of the Foundation's religious services – as needed

(b) Attendees at weddings limited to 150

(c) Applicant to provide traffic control and parking accommodations for (a) and (b).

2. The Board DENIES the request for variances from the parking requirements of the Zoning Ordinance. Pursuant to Code §155-95 AA(4) the Board waives fifty percent (50%) of the required parking spaces as set forth in the foregoing Opinion; pursuant to Code §155-95.1, the Board GRANTS a special exception to allow the Applicant to hold the remainder of the spaces in reserve, subject to the provisions of Section 155-95.1, except that the Applicant need not install the stormwater management system referred to in Section 155-95.1 D unless and until the Township Engineer determines that the system is required.

3. FURTHER ORDERED that the requests for the following relief are DENIED:

a. The request for a special exception to expand the religious retreats on the Property is DENIED.

b. The request for a special exception to hold educational/social/recreational gatherings and to hold monthly community meetings is DENIED.

c. The request to expand the accessory residential use of the Property is DENIED.

4. FURTHER ORDERED that the relief granted herein is conditioned on the following:

a. The Applicant shall strictly adhere to the limits stated in the Board's Opinion and Order on numbers of attendees and hours of operation involved in the various uses. Applicant shall apply to the Board for approval for any increase beyond those numbers.

b. No outdoor mechanical sound-enhancing device (including a megaphone), sound system, chimes or bells shall be installed, maintained or used on the Property. There shall be no outdoor call to prayers, nor shall any sound-enhancing device, megaphone, sound system, chimes or bells used within a building be audible at the perimeter of the Property. In all cases, the noise generated on the Property shall comply with Township ordinances.

c. The Applicant shall maintain minimum yard setbacks of 100 feet from the existing Property lines as set forth in the Board's order in FIE I.

d. The Applicant shall restrict vehicular ingress and egress on the Property to one point along Montgomery Avenue. No vehicular ingress and egress shall be permitted from Saybrook Road, North Stone Ridge Lane or any other street except Montgomery Avenue. The Applicant shall install and/or maintain plantings or other barriers if and as necessary to prevent any such ingress or egress. This condition shall not apply to emergency vehicles.

e. There shall be no parking or unloading of buses delivering persons, personalty or goods to the Property within the 100-foot setback or on public streets adjoining the Property.

f. The use of the dormitories shall be restricted to the permitted uses described in this Opinion and Order.

g. The outdoor lighting shall be shielded to the extent required to ensure that the light emanating therefrom is directed away or shielded from the abutting properties. The average illumination at ground level shall not exceed one-half foot candle as measured at the perimeter of the Property line.

h. Only support staff and their families may reside on the Property. No more than four (4) such families may reside on the Property.

i. Religious retreats shall occur only on weekends (i.e., from Friday after 4:00 p.m. to Sunday at 10:00 p.m.) and shall be limited to no more than six (6) in any calendar year, with at least thirty (30) days between the end of one retreat and the beginning of the next retreat. The number of attendees at such retreats shall be limited to 50. The Foundation shall review all applications submitted to it for retreats and shall provide the Township with a copy of all granted applications to hold a retreat on the Property in advance of the retreat, with a statement from the Foundation that the retreat is religious in nature. The Foundation shall provide security for the duration of the retreat and a representative of the Foundation shall attend all the retreat-related events.

j. The conditions imposed in FIE I are incorporated herein. To the extent there are any conflicts between those conditions and the conditions stated in this Opinion and Order, the conditions stated in this Opinion and Order shall control.

k. Attendance at monthly Saturday lectures shall be limited to 50 persons.

l. The Applicant shall compile and maintain a list of persons and families who regularly attend religious services at the Property. Weddings and funerals, as permitted herein, shall be limited to those for regular attendees and their families. Parking accommodations for weddings and funerals shall be provided on the Property, but not within the 100-foot setback required herein.

m. There shall be no food preparation or sale on the Property, except the residents permitted by this decision to live on the Property may use the kitchen facilities in their homes in the ordinary course of their residency.

n. The Foundation shall not provide temporary shelter on the Property to any person, through the Interfaith Network or otherwise.

o. The Applicant shall submit to the Township, on a semi-annual basis, a certification that the Foundation has complied with the Board's Order in this matter and with all the conditions stated herein.

p. Communication in writing to the Township as required by this Order shall be forwarded by first class mail, postage prepaid, and addressed to:

Zoning Officer

Lower Merion Township

75 E. Lancaster Avenue

Ardmore, PA 19003

Chairman Aaron and Members Morris and Fox participating, all voting "aye."

Attest: _________________________________

Michael Wylie

Secretary



[1] The religious use approved in FIE I allowed religious instruction, only on weekends, limited to 40 students.

[2] The affidavit is a form published by the DOE. [See Exhibit A-2; and see 24 P.S. §13-1327(b) (requirements for day school operated by a "bona fide church or other religious body")]

[3] See, Accelerated Enterprises, Inc., supra (the important comparison in special exception cases is whether the negative impacts posed by the proposed use are greater that those normally posed by other uses of the same type).

[4] The Applicant's witnesses apologized for the Foundation's previous unauthorized activities. The Applicant also apologized in writing to the neighbors for its past transgressions. Its witnesses committed to adjusting its activities to adhere to the Board's previous decision. [N.T. 11/10/05, pp. 6-11, 119-120]

[5] Mark Hershorin, a neighboring property owner, testified that he heard a loudspeaker noise coming from the Property during the summer "a couple times" since 1994. [N.T. 5/11/06, p. 83, 88] Another neighbor, Kenneth Haas, stated that he heard the sound of a megaphone coming from the Property every weekend during the summers of 2004 and 2005. [Id., pp. 101-102] Otherwise, there were no complaints about the camp.

[6] In regulating the expansion of religious and educational uses, the Zoning Ordinance refers to an increase in "participant population." Code §155-4 B ("Expanded Use").

[7] Food is donated by local restaurants or brought to the site by the attendees. [N.T. 5/11/06, p. 58]

[8] There are discrepancies between Exhibits A-11 and A-12 with regard to the precise description of the Sunday School. The Board will restrict the Sunday School to the more detailed description in Exhibit A-12 and in Ms. El-Menshawy's testimony. [N.T. 5/11/06, pp. 19-22] Consequently, the Board does not approve the annual 10% increase in student population requested in Exhibit A-11.

[9] It is important to also note that there was no evidence that the retreats are not religious in nature. The Board accepts the testimony of the Applicant's witnesses that the groups holding the retreats in the past were known to the Foundation and that the retreats consisted of religious services and religious education. The additional conditions imposed in this matter are designed to insure that the Foundation takes an active role in supervising the religious activities so that the neighbors and the township are satisfied that the use is a permitted one.

[10] The Applicant has terminated the refugee program and no longer participates in the Interfaith Hospitality Network. [Id., pp. 9, 79-80]

[11] This does not include the Director's "guest" who has been living on the Property for a number of years.

[12] Only two families were included in the Applicant's parking calculations in FIE I. [Id.]

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Foundation for Islamic Education allowed to continue Jihad in residents backyards

When the Lower Merion zoning board approved the expansion request of the Foundation of Islamic Education this July over residents objections, they granted a victory to the Wahhabists and jeopardized the safety of the residents whose interests they are employed to protect.

In September the Saudi funded FIE, was granted permission to expand their Islamist activity in the form of a day school and day camp despite a decade long record of zoning violations which included harboring a registered sex offender on the premises, a situation which led to an investigation by the FBI, who questioned the director who denied it, despite the fact that non Muslim visitors to the FIE open house testified that they saw him ‘mingling with guests'. The presence of a registered child molester on the FIE premises which houses a children's school is futher compounded by the fact that taxpayers are paying for student's transportation. As one resident lamented:

"…I'm just upset that the federal and local governments appear to be supporting a hardline Saudi religious center right in my neighborhood … county school buses are required to ferry school children to and from the place. I know there are complex legal issues, but you'd think the Saudis could afford their own buses. . . Why do I have to help pay for them? …"

Town Commission Phil Rozenzweig refused to take into account the residents police complaints about the FIE's decade long zoning violations stating "that's not the way the law works". Fred Fromhold, the FIE lawyer dismissed the long list of violations as "a meaningless list of information". The Lower Merion Council attempted to mollify residents by trumpeting a 25 page ruling of zoning regulation expected to be followed by the FIE, another outrage given their track record of flouting them for over a decade. If the FIE did incur any fines for violations, their wealthy Saudi owners would foot the bill in the same way they were bankrolling the litagation incurred by the expansion request.

Lower Merion residents had been less then enthusiastic about the FIE when they first bought the property in 1994, but it was only during the course of the zoning board deliberations 12 years later that the full extent of the FIE's terrorism ties and Wahhabist connections were investigated and documented.

City Commissioner Phil Rozenzweig stated that "It has little to do with the fact that it's an Islamic Institution"- "It's about following the rules and being a good neighbor". A rather disingenuous claim, since the mission statement of the Saudi run FIE shows that their Islamist interpretation of "good neighborliness" means using legal means to force there city to ensure their demands will be accommodated . The FIE's activities and affilitations threaten the wellbeing of the residents of Lower Merion,and the citizens of the United States because they are a radical Islamist institution. Ignoring that fact for the sake of political correctness is amounts to complicity in the spreading of fundamentalist Islam in the United States.

According to a report of the zoning meeting :

Officials from the foundation went before the Lower Merion Zoning Hearing Board last week for a special exemption to add a licensed elementary school for students in pre-kindergarten through eighth grade. The school would initially house 93 students but could grow to 130 in the future.

The foundation is also asking the board to allow a six-week summer camp, increase its full-time staff, increase its Sunday School classes, allow for more people to attend its Friday Juma Prayer session and increase its holiday attendance to allow for up to 400 participants.

But officials from the foundation spent most of the meeting fending off allegations from residents.

Attorney Jim Greenfield, representing a group of residents living near the foundation, raised concerns over whether a registered sex offender was spending time on the foundation's property.

Greenfield entered into testimony the page from the state's Megan's Law Web site on Farhat Mghirbi…two residents testified that they saw Mghirbi at the foundation around the spring of 2005.

In addition to the above, voting records were submitted which purportedly showed that 15 to 17 people lived on the property, yet the Foundation's spokesperson stated that the Foundation had no idea who most of them were. In response to numerous questions about religious retreats held regularly, it was admitted that no records were kept about the retreats. Neighbors are concerned that strangers are allowed to use the Foundation's facilities without any information being kept about them or the possible agendas of the retreats.

The Foundations attorney, Fred Fromhold dismissed a further list of residents complaints to police as "a meaningless list of information".

http://www.classicalvalues.com/archives/003652.html

Lower Merion City Commissioner Phil Rosenzweig appeared to take his cue from the FIE lawyer and said that previous violations were were irrelevant "because that's not the way the law works."

From the beginning the Foundation had opposed by the residents- and one described the situation in a blog headlined ‘Madrassah Update II"

"In 1993 the foundation, a non profit religious group headed by a Saudi businessman , agreed to buy the campus of the Northeastern Christian junior College, the former Morris Clothier Estate, for 2.7 million.

About 60 families dropped opposition to the 1994 zoning change after agreeing on the covenants. The zoning board, incorporating some of the covenants in its order, then ruled that the foundation's plans posed no threat to public health, safety and welfare.

That was the high point of the relationship.

The zoning order had given the foundation approval to hold as many as six retreats a year, at least 30 days apart, and to use the college dormitories to house up to four members of the support staff and their families. Outdoor sound systems were prohibited, as were outdoor calls to prayers, or calls inside that neighbors could hear.

During the November hearing, Manal el-Menshawy, foundation general manager, acknowledged that "much more than six, about 10," retreats had been held during summers, violating the 30-day intervals. The foundation also began an elementary school in 1999 and was the site of a summer camp in 2004, neither permitted under the original zoning order.

In addition, retreat groups set up outdoor speakers whose sounds carried easily into backyards of neighbors, and refugees from Turkey and homeless people were temporarily housed in the dormitories.

Neighbors testified at the May hearing that they were especially concerned that the foundation could not provide much information on what groups used the grounds for retreats or assurances that the foundation supervised their activities.

"It gets kind of scary in terms of security and what they're doing up there," said Kent Haas, one of about 30 neighbors whose properties abut the foundation…"

According to the 25 page ruling made by the Lower Merion Council, the FIE will be in charge of the security arrangements, a farce which tops the attempt of he FIE to sneak through a retreat in excess of the existing zoning regulations, at the same time the zoning board was considering their expansion request. Some of the scheduled speakers at the camp were documented as advocating suicide bombing. After the town council told the FIE they were in violation and the camp was cancelled and town Commissioner Rozenzweig and Zoning Board director Wylie did no further investigations. For their part the FIE remained brazenly true to form,m and complaints about the loudspeakers noise being from the premises during the summer of the hearings..http://www.classicalvalues.com/archives/003831.html .

The Lower Merion zoning board decision to allow the expansion of the camp and school would simply broaden the scope of activities and allow them to continue unabated,thus assuring that the center would be able to continue their role as theUnited States base for the Islamic Education Foundation, in Saudi Arabia and Egypt's Al Azhar University shar'ia university is a huge mistake. The fight against global Jihad has to be fought in the backyards of Lower Merion. Residents must monitor the activities and report any and all zoning violations with the aim of shutting down The Foundation of Islamic Education before they expand their operations.

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