Waverly Twp. residents Terrance and Margaret Neville are appealing the township zoning officer’s decision to issue a permit to Chabad of the Abingtons to build a 12-cabin Jewish religious retreat.
What’s still unclear, despite a hearing on the issue Wednesday, is why zoning officer Christine Capozzi issued the permit and superseded the township zoning hearing board’s special exception process.
“What we're asking the board to do ultimately is to revoke that permit and say this was done improperly, regardless of anything else, the procedure was not followed properly," said Attorney Kevin Walsh, who represents the Nevilles. “Under Pennsylvania law, there was no jurisdiction for the zoning officer to do anything after that appeal was pending, and yet she issued a permit.”
The Nevilles' property borders the synagogue’s property. Capozzi, who is also the township manager, was set to be Walsh's first witness, but she did not attend the hearing.
Attorney Bill Jones, who represents the township and is the planning commission's solicitor, reached Capozzi by phone Wednesday to verify that she can attend the next hearing, which is on April 20.
Chabad request
In October Rabbi Benny Rapoport, on behalf of his Chabad of the Abingtons Inc., appealed an original zoning determination by Capozzi and sought a special exception to build the religious retreat on his 21-acre property.
A Chabad House is a type of Jewish community center that teaches Hasidism, a kind of Orthodox Jewish philosophy.
Each of the 12 cabins would be 865 square feet — roughly equivalent to three full-sized school buses parked side-by-side. The cabins are expected to have three bedrooms, three bathrooms and one living room to accommodate six people. The cabins will be limited to individuals attending services, observing holy days and/or participating in other religious programing and activities at the synagogue, according to Pennsylvania Public Notices.
Waverly’s zoning ordinance only allows places of worship to have two homes on the property to accommodate “full-time religious leaders and their families.” The Chabad is in the township’s rural resource district, which is designated for agricultural use and some low density residential housing.
One hearing was held on Nov. 17. A Dec. 1 hearing was canceled because Capozzi issued Rapoport a zoning permit to build the retreat.
Attorney Matt Barrett represents Rapoport. He said Wednesday that the Chabad's plan for the retreat still has to go through the township's development process.
Objections and insight
Walsh called Terrance Neville as his first witness. He asked him to testify about his property.
Barrett and Jones both issued objections to Walsh’s line of questioning. Zoning Hearing Board Solicitor Matthew Boyd allowed them to continue.
Walsh asked Neville why his family moved to the property four years ago. They were living in an urban area and their 18-year-old son has autism. He’s sensitive to crowds and noises and doesn’t recognize certain dangers, Neville said.
"So this property allowed him to have a lot more freedom and independence,” Neville said.
Rapoport founded and runs the local Chabad and its Jewish Discovery Center. The center opened in 2015 before the Nevilles moved to the property. Rapoport and his family live in a home on the property. The center has a meeting room, Judaic library, youth center, classroom and Kosher kitchen. Outside is a pool, playground and Rapoport’s personal shooting range.
Walsh asked Neville if he had an issue with having a synagogue next door.
“We did not,” he said.
Jones objected.
"We're here for a jurisdictional issue, whether a zoning officer could issue a permit before a withdrawal of an appeal. It appears that we're taking testimony on attributes of a special exception, which is not before the board today,” Jones said.
Walsh responded.
"I understand the board isn't deciding tonight whether or not to grant the special exception approval, but I think the board needs to hear that this doesn't fit regardless,” he said.
Walsh also asked Neville to detail what else is on Rapoport’s property only 10 to 29 feet from his property. Neville flipped through photos that he took at his property line that includes two small homes that he says appear to have permanent electric and gas hookups as well as a sewage line that runs to a tank.
“There hasn't been any establishment as to where their property lines begin, where their property lines end,” Barrett said in his objection. “And then with regards to any suggestion that these support illegal violations, things of that nature. It's just inflammatory, not relevant, and not part of the plan that's been submitted and was approved by way of the permit.”
Waverly Twp. issued a violation for the installation of the homes.
“There's a history of non-compliance, and we submit that if this permit is granted, there's going to be nothing stopping the Chabad from doing whatever they want to do and continuing in that course of conduct,” Walsh said.
Second witness questioned
John Varaly, a professional planner with 52 years of experience, was Walsh’s next witness.
Barrett and Jones both argued at points that Varaly is not a qualified as a legal expert.
Walsh asked Varaly if, in his over five decades of experience, he’s seen a zoning officer take action once an issue is with the appeals board.
“If someone is appealing the determination of a zoning officer, then that appeal will then go to either the zoning hearing board or the governing body, depending on the type of appeal, so there would be no further involvement after the zoning officer,” he said.
Barrett asked about the relevance of Varaly’s testimony.
“There's no evidence of record that the zoning officer rendered a decision with regards to an appeal. The board issues decisions,” he said.
Walsh said one of the main issues in the Nevilles’ appeal is that Capozzi issued a permit despite a pending appeal on original decision by Chabad and their request for a special exception to the zoning laws.
Walsh said the issuance came “out of nowhere in violation of Pennsylvania law.”
The lawyers and Varaly also argued over the Pennsylvania Municipal Planning Code and the Religious Land Use and Institutionalized Persons Act (RLUIPA), a federal law that protects individuals, houses of worship and other religious institutions from discrimination in zoning and landmarking laws, according to the U.S. Department of Justice.
The next hearing is Monday, April 20, at 5 p.m. at the Waverly Community House, 1115 North Abington Road, Waverly Twp.
