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A redevelopment authority may not use public funds to acquire land for a religious organization for the construction and operation of a private school even if the land is certified as blighted.
In re 1839 North Eighth Street,
891 A.2d 820 (Pa. Cmwlth. 2006), app. granted, 903 A.2d 539 (Pa. 2006).
A partnership of religious entities approached the Philadelphia Redevelopment Authority about acquiring property for the construction of a non-sectarian private school. After the City Planning Commission reviewed and recommended the approval of the project, City Council authorized the Redevelopment Authority to proceed with acquiring the properties and to issue Declarations of Takings as necessary. In this case, one of the landowners objected and argued, among other things, that the proposed project violated the First Amendment’s Establishment Clause and the Fifth Amendment’s “public use” requirement.
The trial court disagreed with the landowner and dismissed her objections. Under Pennsylvania’s Urban Redevelopment Law, the trial court opined, the taking and redevelopment of blighted property, by definition, satisfies the public purpose requirement for a taking. Moreover, the court found, it is irrelevant who ultimately redevelops the property. Landowner appealed.
The Commonwealth Court disagreed with the trial court and reversed. The court held that the actions violated the Establishment Clause because transferring the property to a religious organization violated all three prongs of the United States Supreme Court’s Lemon test, 403 U.S. 602 (1971): 1) the actions were not primarily secular in purpose, 2) the actions had the effect of advancing religion, and 3) the actions fostered excessive government entanglement with religion. In addition, the Court concluded that the project did not satisfy the public use requirement because the Authority, from the beginning, took the land with intent to transfer it to a private party for a primarily private purpose. In sum, the Court found that a redevelopment authority “may not use public funds to acquire [even blighted] land for a religious organization for its construction and operation of a private school.”
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