civus
Hearing video

ZBA Hearing - August 20, 2024

Philadelphia Zoning Board of Adjustment (ZBA)Aug 20, 20242h 52m

and again i'm not even going to go through all these individually this is another one

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about the krishna movement yes this refers to the property on woodlawn street as the old center

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okay and that's just so uh because it i may refer to it later uh just what you said so this was an

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article that was written after they had left 424 east woodlawn and they were going to move into the

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new center on allen lane is that right yes okay then again that i'll just point out to the board

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that that will be significant later and i apologize for having to adjust the height for each of these

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again another article this one from 1971 a little bit earlier than the others

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another article from 1973 so these are all materials that you looked at in making a

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determination of whether about whether or not uh the prior use of the property fell within the

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public and institutional use category yes okay

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and last article from 1976 all right so i'm going to stop sharing here uh based upon now

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Now, in terms of doing your review, Dr. Farnham, are you, does that require you to make a judgment call as to whether or not something in this case qualified as a religious use?

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Yes.

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okay and if this property had been a we'll say christian denominational church uh catholic

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protestant episcopalian uh or a synagogue or a mosque um that would have made your job maybe

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a little bit easier well easier in that uh would have more familiarity right but but but there

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There's nothing in the code that specifies church, synagogue, or mosque as being the only houses of worship that qualify under the public and institutional use category.

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Is that right?

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Yes, I believe that to be correct.

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Okay.

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I have no further questions for Dr. Farnham.

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A cross-examination.

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Certainly.

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Do you want me to go first?

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Sure.

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Sure.

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Sorry, I don't know if Mr. Phillips had any more on direct.

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Do you have any more in direct, Mr. Phillips?

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My only question, I think Mr. Reuter covered it, but Dr. Farnham, you in the zoning records and in reading the articles, is it fair to say you determined that there was a documented former principal use as a house of worship?

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Yes.

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No further questions.

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Mr. Mattione.

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Sure, certainly.

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And Dr. Farnham, is it true that you never visited the property in the 1970s?

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That is true.

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I did not.

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So you have no personal observation of the uses during the period of 73 through 77 when it was owned by the Krishna Society?

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No, I do not.

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And did you hear the testimony of Mr. Hoy?

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Yes, I did.

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And do you have any reason to believe that the personal observation of Mr. Hoy regarding the uses of the properties of Rooming House are incorrect?

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uh i i would say yes i i did not get the impression that uh mr foy necessarily

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Yeah, I did not get the impression that Mr. Hoy necessarily understood what would constitute a religious practice under Krishna consciousness.

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That was a personal takeaway from Mr. Hoy's testimony.

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on. And you see in the articles that the cities relied upon, you have things like 20 members

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living or 25 members, residents, depending upon which article, living in this 4,400 square foot

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residence. And they even applied for a rooming house use as part of their church application.

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Isn't that correct? I believe one of the zoning permit applications did indicate

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church and rooming house, yes. Right, so a church is a church, a rooming house is a rooming house,

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and it's obvious, at least from their own applications, their own admissions, that

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a significant part of this building was being used as a rooming house or a residential purpose

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and not for religious activity. There was a housing for religious people, isn't that correct?

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That would, I would have to draw a conclusion about how Krishna's practiced their religion

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to agree with your statement and i'm not willing to do that understood um and mr hoy you alluded

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to a cloistered living by nuns and certain monks um they may all live together but that's certainly

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not religious assembly it's not religious practice it's them in a living in a religious

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I'm going to object to the characterization. I mean, unless the board wants to make decisions about what constitutes legitimate practice of religion, it seems like a dangerous word to go down.

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I understand your objection, and Mr. Mattione, why don't we just move on?

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The issue isn't practice of religion per se. It's public assembly. I mean, the whole point of this 146027 is to allow for certain historic structures that had public uses to continue on is getting CMX3 zoning. If you have a rooming house, that's not a public use. If you have a...

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Again, this is fine for argument, but I don't know if it's a question for Dr. Farnham.

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That's why the question's perfectly appropriate for Dr. Farnham. I mean, he's the one that made the judgment.

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Dr. Farnham, if you can answer that, answer it. If not, that's fine.

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Can Mr. Mattione please repeat the question?

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Well, we're looking at the use permit application that was filed by the society, and they sought to have a church along with the rooming house, and that was denied by the zoning board.

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But it was clear based upon Mr. Hoy's testimony that the use of people living in the structure, which was prohibited by the city, continued.

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And they wanted to have just a church.

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They applied for a church, but they continued to violate the city code by having people live there.

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The living in the building, and correct me if I'm wrong, Mr. Farm, but the living in the building really is different from religious assembly, public assembly.

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That's people living somewhere.

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It's not public assembly.

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And that's what was going on in the majority of the building.

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But you have no way to know whether the observation of Mr. Hoy are correct, right?

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I have no way of knowing.

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Is that the question?

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I have no way of knowing if Mr. Hoy's observations are correct.

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No, I was not in the building in the 1970s when Mr. Hoy was.

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And Mr. Hoy is the only person who's testified so far who testified about the uses at the time.

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Isn't that correct?

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Yes, I believe so. I believe Mr. Convales, the appellant, said he was not aware of the uses.

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So yes, Mr. Hoy is the only one who has testified regarding personal observations of the uses in the 1970s.

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So isn't it possible that the observations of Mr. Hoy regarding the very limited use of the home for religious assembly are correct, because he was the one who was personally there to observe what was going on?

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Again.

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Yeah, I did. Counselor, I think he already answered that where he disagreed with Mr. Hoy's.

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Well, you can't disagree with his.

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No, I think he disagreed with what Mr. Hoy thought a religion was.

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so anyway i have no further questions for okay okay we have no further witnesses and uh no no

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no redirect all right mr phillips you have any witnesses no i don't pardon me no okay questions

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from the board questions from our our attorney hillary emerson

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not a question mr chair but might i suggest that each party be permitted

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Not a question, Mr. Chair, but might I suggest that each party be permitted to give a brief closing statement?

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You can.

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Michael, why don't you go first?

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Do you take a public comment as well or not?

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We don't take public comment.

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I just didn't know.

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Yeah, we don't.

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That's fine.

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That's fine.

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All right.

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That's fine.

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Do you want to do your closing?

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Yes, yes, yes.

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The testimony of the only person to personally observe the structure from the period of 1973 to 1977 is clear and unrebutted, that even if there was any public, civic, or institutional use, it was in a very small portion of the property, far less than the 2,500 square foot of area required for the provisions of Section 146027A3 to apply.

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Why? Richard Hoy lived more than 50 years on the street, right across the street from this property and was president of the local civic association at the time, was personally inside the structure.

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On many occasions, he was clear. He was unequivocal about what he observed. His testimony was unrebutted. He saw people living in this structure, people living there all over the place, rooming house type living.

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It was not a religious assembly site.

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And there's a distinction there.

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You can live together and practice religion, but not be doing it as a religious assembly.

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He saw what he saw.

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He saw what the city saw when the city cited the property for having a rooming house.

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They cited it for a rooming house.

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They cited it for a church and they granted a church permit, but they still cited it after the fact, again, for continuing on with a rooming house use.

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clearly people living together like they were was not religious assembly not public assembly but it

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was just that a rooming house so at best what you had was a permit for a church and possible use of

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a small structure for religious assembly and the majority of the structure and it's 4400 square

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foot structure but the fair i'm sorry the large majority of the structure was used for living

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purposes only and not for practice of religious assembly and a public manner as is required under

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the code to be able to get CMX3 zoning. And in fact, he testified that the building is all chopped

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up as it was in the exhibit seven that we presented. And it was that way in the 1970s

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during the applicable time period. So we believe that this structure cannot possibly be considered

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to religious assembly or other public use that would permit the CMX3 zoning to apply.

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And I would like to move my exhibits into evidence, Mr. Chairman.

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Thank you.

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Ms. Sarah, thank you.

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Mr. Reuter?

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Sure.

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I think, obviously, the problem here, which we've sort of been dancing around, is what

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was the nature of the Society for Krishna Consciousness?

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What was the nature of their religious practices as they took place at this location?

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Nobody's disputing that ISKCON was the owner of the building.

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Nobody is disputing that, from the other side maybe, nobody is disputing that the property was used for communal living, had I think upwards of 50 people living there at one time.

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and we're not making any statements about the legality at the time of that use for communal

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living purposes. We do believe, however, that it is quite possible when you're dealing with,

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for lack of a better word, non-mainstream religions, that there's going to be a lot

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of overlap. There are certainly religious practices around the world for which communal

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living is an integral part of their religious practice.

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I mean, Mr. Hoyt himself testified that when he went there, he was able to identify the

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residents and the occupants of the property as members of the Krishna consciousness movement

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because of their consistent dress, the chanting that went on throughout the day and night,

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the food that was being prepared and provided that served a religious purpose

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or at least met with the preconditions of the religious observances.

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I think at most, Mr. Mattione's client is claiming that

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we didn't have a discrete 2,500 feet of the building

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that was dedicated to some specific type of ceremonies

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or whatever that might constitute religious practice

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if we were talking about, again, a mainstream religion, you know, i.e. some Christian denomination,

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a synagogue of one type or another, or a mosque of one type or another.

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And again, while the code does specify those types of uses, it says, or other religious worship.

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So, again, it's the religious assembly defined in the public civic and institutional use category now is religious services involving public assembly that customarily occur in synagogues, temples, mosques, churches, and other facilities used for religious worship.

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So again, it's the religious assembly defined in the public...

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so again we've we've got undisputed testimony from the uh the appellant's own witness that

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the the occupants of the property were involved in chanting they were involved in communal meals

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they were involved in communal living uh so it's to be able to say if there was no discrete section

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of the property that was used for a particular ceremony if anything we have testimony that

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indicates that the entire property was used for religious purpose.

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I do want to point out, and again, this is not an exhibit because I'm making reference

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to a court case that involves ISKCON, and in fact, as Dr. Farnham testified, as one

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of the articles indicated, after ISKCON left this property and sought another and wound

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up taking, purchasing, I believe, another property at 41 to 51 West Allens Lane, there

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was a lawsuit involving that property because at the time is con was seeking an exemption

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for property taxes as a house of worship for that property uh and this is a reported um 10

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this is a common pleas decision as far as i've been able to determine it was not appealed to the

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uh uh court to the commonwealth court um interesting a lot peter peter kelson was

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representing the city in the case this is from 1984 and it's international society for krishna

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consciousness of philadelphia versus the board of revision of taxes of philadelphia

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may term 1978 looks like the decision was january 27th 1984 and in that decision um the court

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indicates uh is making it made a determination about whether or not uh the property was used

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for communal worship, and it specifically cited 50 to 60 devotees who resided at the

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property on a full-time basis, and that while being a resident, while living at the property

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was not an essential requirement, that there were at least 12 full-time devotees who lived

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at the subject property, the day began at 3 in the morning and continued to 9.30, during

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which they devoted themselves to chanting 16 times a day,

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had a number of people living there,

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and that they would then leave the property, come back in,

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all the preparation, serving and eating the food,

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followed strict religious principles, etc., etc.

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And again, this is an unappealed decision of the Court of Common Pleas.

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I agree that is by itself not precedential because it's a Common Pleas decision,

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but these are basically findings of fact that the Court made at the time

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and again granted a different property

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but essentially the description is the same type of issue

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and the court agreed that the property qualified for an exemption

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as a house of worship

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and I will provide a copy of that to everyone

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if need be

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so again what we're talking about is that this

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I don't think that we can get into a position

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where the city or Dr. Farnham

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is put in a position where they have to make a determination

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about whether one religious practice is more valid than another

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or whether a particular type of communal worship

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constituted religious assembly,

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if they're all in the same house and chanting at the same time,

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as opposed to religious assembly being restricted to one particular room,

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which, of course, would be more familiar to Judeo-Christian religious practice.

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So we believe that the evidence indicates that this property was used,

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was clearly owned by by iscon uh it was inhabited by adherence to to iscon and that their entire

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living arrangement of the property whether or not the living arrangement was legalized by zoning

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permit that the entire living arrangement and the communal living situation of the property

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constitutes uh religious assembly for purposes of the exemption thank you mr phillips thank you

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