Citation:

In re 1839 North Eighth Street,
891 A.2d 820 (Pa. Cmwlth. 2006), app. granted, 903 A.2d 539 (Pa. 2006)

Affirmed in part, reversed in part, and remanded by: In re Condemnation Proceeding by the Redevelopment Auth. of Phila. (1839 N. Eighth St.), 938 A.2d 341 (Pa. 2007)

Summary:
Where the Lemon test is implicated in condemnation proceedings because a religious entity is involved, courts must look at the principal purpose of the use and how and why the religious entity is involved. A condemnation will not fail simply because a religious entity is involved as the entanglement must be prohibitively excessive to warrant failure under the Lemon test.
Case Details:

Note: This case is an appeal from In re 1839 North Eighth Street, 891 A.2d 820 (Pa. Commw. Ct. 2006). While the use of the Lemon test remains intact, the Pennsylvania Supreme Court reversed and remanded the case based on the specific facts.

 Where the Lemon test is implicated in condemnation proceedings because a religious entity is involved, courts must look at the principal purpose of the use and how and why the religious entity is involved. A condemnation will not fail simply because a religious entity is involved as the entanglement must be prohibitively excessive to warrant failure under the Lemon test.

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 (RDA), created under the Urban Redevelopment Ace (URA) to combat blight, to proceed with acquiring the properties and to issue Declarations of Takings as necessary. One of the condemnees 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 dismissed the condemnee’s objections, but the Commonwealth Court reversed based on its application of the test (Lemon test) established by the United State Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971). Under the Supreme Court’s Lemon test, the Commonwealth Court determined: 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 RDA, from the beginning, took the land with intent to transfer it to a private party for a primarily private purpose.

On further appeal, the Pennsylvania Supreme Court reviewed the Commonwealth Court’s analysis of the Lemon test and reversed. As to the first prong of the Lemon test, secular purpose in the RDA’s taking of the Property was a step to eliminate blight as per its mission.  Per the URA, “Redevelopment Authorities . . . shall exist and operate for the public purposes of the elimination of blighted areas through economically and socially sound redevelopment of such areas . . . in conformity with the comprehensive general plan of their respective municipalities.” The RDA acquired the Property to transfer it to a developer who was willing and able to redevelop the Property “pursuant to the [relevant] Redevelopment Plan,” thus, the first prong was met.  The second prong of the Lemon test prohibits a taking “to advance or inhibit religion.”  Under then current Establishment Clause jurisprudence, the Pennsylvania Supreme Court determined that, while a secondary effect of taking the Property advances a religious organization’s mission, that clearly was “not the principal or primary effect.” “The principal or primary effect of the redevelopment plan in general, and this taking in particular, is to eliminate blight in this long-suffering neighborhood.” Moreover, all potential developers were treated similarly and were “permitted to indicate property contained within the large blighted area in [the City] that they would be willing to develop.” While the religious nature of the use is reason for pause, the facts of this case established “no goal aside from the elimination of blight and [did] not provide any indication that the principal or primary effect would be to advance religion.”  Finally, there was no “excessive entanglement between the state and a religious entity created by the government action.” Because exercising the power of eminent domain to eliminate blight is a valid use of the power, the Pennsylvania Supreme Court determined “the subsequent sale of the Property to a private [and] religious entity does not constitute ‘entanglement’ that would somehow make the taking unconstitutional.”

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