A Condemnation Proceeding in Rem by the Redevelopment Authority of Philadelphia

range 2005, established a of 15% above and be- the above-captioned matter figure hereby low order to ascertain affirmed. (86.3%)

whether the common level ratio

fell within range. adopt To Sims’

methodology require would Court this every

overrule Park Terrace and other

case that has held that the Board’s meth-

odology was one to use. We have not given

been a reason to take step. this Proceeding A Condemnation In REM Sims also contends that this Court has by the REDEVELOPMENT AU retreated from the methodology above THORITY OF The CITY OF PHIL However, more recent decisions.7 ADELPHIA for the of Re upon by cases relied support Sims do not development Philadelphia of North argument. his In Vees County v. Carbon Redevelopment Area Model Cities Board Assessment Appeals, 867 A.2d Area Renewal Condemnation (Pa.Cmwlth.2005), the Court consid- Philadelphia, including No. 30 B PA ered question, ap- constitutional not the improvements prop certain land plicability predetermined of the ratio in a erties. case Further, such as one. in Appeal this Armco, Inc., 452, 100 Pa.Cmwlth. Eight RE: 1839 North Street. 326, 329 n. contrary Sim’s assertion, the Court the Park affirmed Appeal Mary of: Smith. Terrace method calculating the allow- Commonwealth of Pennsylvania. variance, able opining “[a]ny other inter- pretation would absurd and unreason- 16, Argued Nov. 2005. able in contravention of section 3 of the Decided Feb. 2006. Statutory Construction Act §C.S. 1922.”8

Accordingly, the decision of trial

court is affirmed.

ORDER NOW,

AND day this 3rd February, County the order of the Berks Board Appeals July Assessment dated 7. argument regarding appeal violating Sims' granted the Board's al- his can be without leged improper substitution "of" uniformity requirement Pennsylva- 9(a.l) "from” in Section of the Assessment Armco, nia Constitution. Sims notes that in herring. Regardless Law is a red of the se- valuations, using held we one different words, mantic difference between these two taxpayers appeal who did not and another beginning point in the calculation is al- appeal, those who did was not unconstitu- ratio, ways predetermined the com- correctly holding tional. Sims recites the mon level ratio as Sims asserts. However, point Armco. is of no this moment grant ap- we argues though because do not his properties 8. Sims assessment even ratio, using predetermined are peal. assessed objections

inary filed Daughter Smith to Au- Veronica thority’s November 2003 Declaration of Taking that condemned owned Eighth Condemnee at North Street City in Philadelphia (Property). Condemnee asserts that the trial court in holding erred existence justified regard- the condemnation specific developer’s less for in project, holding the intended Property given be taken and to a organization and in religious failing to rec- ognize Daughter Condemnee’s shared ownership and Property interest was due relocation costs. I Sugarman, Philadelphia,

Robert J. for February trial court ordered appellant. that evidence in case be taken Galante, Peter A. Philadelphia, ap- deposition and that were counsel to submit pellee, Redevelopment Authority of the any notes of testimony supplemen- City of Philadelphia. tal memoranda for the court to consider before COLINS, reaching its decision. The BEFORE: record Judge, President SMITH-RIBNER, establishes that Condemnee owns the Judge, PELLEGRINI, LEADBETTER, but. Property currently resides a nurs- Judge, Judge, COHN JUBELIRER, ing Daughter home and that her Judge, SIMPSON, has resid- Judge, ed in LEAVITT, Property years over 50 Judge. presently family. resides there with her Judge OPINION BY SMITH- 4, 2002, September On the “Hope Partner- RIBNER. ship for Education” submitted letter The in this Authority’s issue case is of first one Director Urban Renewal impression Activities, Koonce, question for the Court. specific The Michael docu- to decide pertaining prior request is whether the ments specific to acquire land tar- Philadelphia (Authority) may geted by the Hope Partnership exercise emi- eastern nеnt See private Philadelphia. domain to condemn a North Reproduced Rec- (R.R.) property, homeowner’s located in an area ord at 42a-44a. Philadelphia North that was certified as Hope Partnership proposed to build blighted, turn acquired and then over the private independent middle in a school private purely or- neighborhood, and it described ganization operate pri- to construct and project the venture narrative submit- independent

vate school. ted to the as being between (Condemnee)

Mary Smith from appeals religious sisters, “Two Communities of Society order the Court Common Pleas of Holy Jesus Child Philadelphia County prelim- Mercy....” overruled R.R. It Sisters at 43a. R.R., BEx. at 30a. On Partnership. explained further collaborative “[t]his notifying previously after being long August estab- venture is built on Property would be that her Mercy traditions of Condemnee Holy lished Child Con- offered religious, appraised, ... we sеrvice vowed [and][a]s $12,000 just compen- as estimated those in journey are called demnee need_” 6, sation, 121b; on November oper- Id. The school will S.R.R. Partnership foundation, wrote Con- through pri- business ate ac- advising plans about demnee funding. vate Id. and Berks and of quire the at 8th receiving after On October relocation; plan negotiate City Planning Commission’s November 21, 2003, Authority on the November the Phil- 1968 certification for North initiated the Area, adelphia Redevelopment the Author- objections preliminary ity redevelopment proposal Condemnee filed prepared its averred, 23, Redevelop- on December 2003. She titled “The Thirtieth Amended among things, Daughter that her submission to the Plan- Proposal” equitable Property interest the Supplemental See Re- owns ning Commission. there, (S.R.R.) 64b; residing 30b, prime Ex. is tenant produced at the Record taking not for 2 proposal’s 85b. The Fact Sheet lists that the at arbitrary purpose, taking that the development projects, public which includes discriminatory, that capricious Hope Partnership project identified predetermined taking is the result of the “North 8th Street Franklin/North entity, that illegal private to a (Hope Partnership Landbank for Edu- commitment cation).” R.R., 25a; rights vio- process A at were Ex. at S.R.R. Condemnee’s due taking was made with- North 8th lated and 89b. The is bounded west, compensation Franklin Condemnee’s Street North Street out due east, Daughter refused Berks to the north and because Street Montgomery recognize ownership interest. Avenue to south. Id. Hope Partnership one enti- prelimi- The trial court overruled for which make land ties will nary objections upon its ultimate based City’s Neighbor- acquisition through the was certi- the land “[o]nce conclusion Initiative; Transformation the lаnd hood it is to then trans- blighted, proper fied as price. given will be to it for a nominal ‍​​​​‌‌​‌‌‌‌​‌​​‌​‌‌‌​‌‌​​​​‌‌‌‌​‌​​‌‌‌​​‌‌​​​‌​​‍re- development, private fer land to R.R., 25a, (Deposition A at 68a-69a Ex. developer future of ‘who’ that gardless Koonce). M. Relying op. upon 3. may Slip be.” at 2002, 18, Redevelopment By Belovsky letter dated October 329, 277 pro- Philadelphia, 357 Planning approved Commission (1947), court determined that the trial posal, which the then submitted blighted areas constitutes S.R.R. 31b. After elimination Council. Au- which the City proper public purpose public hearing December do- thority may its eminent on No. 020681 passed Council Ordinance 2(d) Re- of the Urban main. Section acquisition, 19 inter See approving December Law, May Act of alia, development designated properties 1702(d). amended, R.R., 35 P.S. Ex. P.L. Hope Partnership project. did not 32b, 25a; pro- 114b. The It noted A at S.R.R. at which occurred $860,250, blight, and the certificatiоn posed cost was acquisition condemnation, years before the was identified as some developer quoted and it propositions Law, from Belov- ment the Court must ascertain that sky that a does taking not lose public the redevelopment authority has not acted simply character because some pri- future arbitrarily, bad faith or acted that it has gain vate may result and that if followed required statutory procedures in good is enhanced is irrelevant that a preparing plan and that interest benefit from the tak- there were no constitutional violations. ing. flatly rejected The court the argu- See In re Condemnation Washing ment that implicates Street, (Pa.Cmwlth. imper- ton 767 A.2d 1154 2001). missible entanglement church and state. In addition, in Redevelopment Au It stated was due to thority Erie v. Owners or Parties in Interest, sub-standard and conditions of 1 Pa.Cmwlth. the Property and that the tаking was au- acknowledged this Court its limita thorized 9 and 12 Sections of the Urban on appellate tions of a review trial court Law, §§ 1709 and decision to prelimi sustain or overrule 1712. “[wjith nary objections. It stated that re spect to inferences deductions from The trial court concluded that because law, facts and of both conclusions the court no deed pass exists to title from Con- en banc and the appellate courts have the demnee Daughter, to the possesses she power to own draw their inferences and only a tenancy may regard- will be make their own deductions and conclu ed as a displaced person specific entitled to Id., sions.” 274 at 253 (citing A.2d Felt v. damages. Relying on Section Hope, (1964); 416 Pa. 206 A.2d 621 201(8)(i)(A)(I) of Eminent Domain Kalyvas v. 371 Kalyvas, Code, Sess., Act of Special June (1952)). 819 amended, P.L. § 26 P.S. 1- 201(8)(i)(A)(I), Redevelopment and Urban objections Preliminary pur filеd Cleban, Authority Pittsburgh v. 406(a) suant to Section the Eminent Pa.Super. A.2d Code, l-406(a), Domain serve a court the Daughter may offered that be different function than those filed in other entitled to damages certain when she relo- civil actions. In re Stormwater Mgmt. cates and submits documentation for the (Pa.Cmwlth. Easements, 829 Authority to determine relocation costs 2003). They are the exclusive method for due. resolving to the challenges right appropriate

of the condemnor to the con II demned property previously adjudi unless cated, sufficiency security, any of the A procedures followed the condem nor or the They declaration Id. The Court’s review of' a trial are a intended to serve as mechanism for court’s sustain decision to or to overrule expeditious of factual resolution preliminary objections to a Declaration of legal challenges Taking to a Declaration of Taking an domain eminent case is limit before the parties proceed damages to the ed to determining whether the trial court stage. Id. abused its discretion or whether it commit ted an In error of law. re Condemnation B (Pa. Robinson, Land in 861 A.2d 387 Cmwlth.2004). reviewing initially When condem Condemnee contends that nation cases the Urban trial Redevelop- under interpretation Belovsky court’s when the actu- purpose expressly pretext public a and that this Court inaccurate Erie private benefits al is to bestow held only to acquired likely pre- that a be to be a is less and that reasonably required the extent of the owner the ultimate textual when acquired purpose. oc- known when not. convey Partner- Property to ulti- asserts curs. Condemnee school, private religious ship construct prior beneficiary known mate Cоndemnee, which, im- according here, an infer- which creates condemnation power. eminent domain permissible improper purpose ence that it was elimination Furthermore, of a sub- compre- gift. Unlike the providing area is standard structure up- development purpose economic hensive condemning proper- insufficient reason Kelo, purpose here was held ty denied the the owner has been where organization dispose of land to a repair Specifi- and rehabilitate. right school.1 operate construct cally, claims that the Authori- response, maintains ty’s condemnation violates the Establish- its dis- that the trial court neither abused ment Clause First Amendment an error law cretion nor committed Constitution, ap- made the United States objec- the preliminary when it overruled plicable to the states the Fourteenth Belovsky. The upon tions based Amendment. She also claims violation on Con- submits that cases relied I, Pennsylvania Article Section do not distinguishable demnee are Constitution, provides which that “no man principle an- claim that the attend, support her right compelled erect can in modified Belovsky to in has been support any place worship, or of or nounced it con- that any ministry any Authority maintain without his The stresses way. ...” sent. of the strictly complied provisions with all that, un- Redevelopment Urban Law brief, In reply her Condemnee discusses in Au- Redevelopment — like the situation London, New Kelo v. U.S. of Erie, allegation or is no thority there -, 2655, 162 L.Ed.2d 439 125 S.Ct. of showing by Condemnee of was decided after Con- which Property faith. Also because bad main demnee filed her brief. She asserts of area, the soundness blighted in a located reasoning that there reinforces insufficient basis its structure position. emphasized The Kelo Court that i.s See, e.g., Craw- preventing a condemnation. property may not be taken under dwelling to the dis- determining replacement available 1. Condemnee contends that placed person in market. just compensation, "the owner” broadly Au- be construed and should just compen- The counters thority required provide replacement to challenge the Au- be made when sation must compensation Daughter. just to the costs as Property thority possession under seeks 602-A(a) of Domain Section the Eminent addition, § Section P.S. 1-407. Code, De- 8 of the Act of added Section 201(2), 1-201(2), 26 P.S. Section under § 1- cember P.L. inter- is “the owner of condemnee 602A(a), pay- provides in addition Daughter is not Because est taken.'...” authorized, acquiring otherwise Property ments con- she is the-owner Nonetheless, payment, not agency question mаke an must additional wheth- demnee. $22,500, any displaced person housing exceeding are due should replacement er costs amount, of viewers at such when added resolved the board and that be dwelling, not ad- acquired appropriate time. The Court need acquisition cost disposition. light of its comparable this cost of a dress issue equals the reasonable Redevelopment Fay ment no matter “who” the develop- future ford ette, (1965). Second, 211 A.2d 866 evidently er be. the court presumed, improperly, that Condemnee’s Authority posits public pur- failure to challenge the certification pose of its condemnation was established blight effected waiver of her blighted, once the area was certified as Third, the court erred re- which eliminated the need for consider- jecting Condemnee’s claim that ‍​​​​‌‌​‌‌‌‌​‌​​‌​‌‌‌​‌‌​​​​‌‌‌‌​‌​​‌‌‌​​‌‌​​​‌​​‍ation of the or poten- status nature of the implicated impermissible entanglement developer tial It disputes land. church Finally, and state. it erred contention that do- eminent exercised concluding simply proper- because the power main religious gift make a ty was in blighted substandard and condi- that, although Hope entered into between the and ulation, a statement of the existing uses the Partnership subject would be to therein, of the real property a statement City approval 10(j) Council’s under Section of the proposed following uses redevel- Law, Redevelopment P.S. opment, a statement the proposed 1710(j), any and contract must conform changes zoning ordinances and street 11, the requirements to of Section layouts, an estimate of the acqui- cost of § 1711. sition the and other costs neces- sary prepare to it for redevelopment,

Ill and a stаtement of such con- continuing may From its necessary examination of the record and trols as be deemed to application the accomplish purposes basic fundamental the act. the law, principles Thereupon Authority prepares Court concludes a “re- the trial court did development proposal” indeed commit an error for the redevel- opment area, of law it preliminary part when overruled the of all or such in- objections. The cluding proposed trial court erred on sever- First, in holding al fronts. it erred contract selection the redevel- oper, when land is the Au- proposal certified as and submits this to thority may private develop- transfer planning it to commission for review. The and that right property together planning with the citizen’s hold proposal, thereon, strictly authority commission’s to condеmn must be recommendations construed). body, the governing are then certified to which, public hearing, approves after a Forrester, 365, In re 575 Pa. In rejects or proposal and the redevel- Supreme acknowl- Court contract; opment in the event of the edged principle that the well-settled being proposal approved powers its eminent domain state exercises empowered execute the contract public use. when takes may and to take such action as be neces- Wilkes-Barre, 542 See Balent v. carry pro- sary out. The contract 555, Quoting 669 A.2d 309 vides for the amount of the consider- 283, at A.2d at Belovsky, 357 Pa. paid redeveloper ation be recognized that tak- Supremé Court con- necessary and for the its.public character ing does not “lose tinuing controls. merely in the may because there exist Id., 335-336, 357 Pa. at 54 A.2d at 280-281. privаte gain, feature of operation some Supreme acknowledged Court good if it is immate- public enhanced of property right owner has the be private rial that interest also enjoyment uninterrupted of her Forrester, In at benefited.” re 575 Pa. subject to property, right of the state observed, at 105. The court necessary to take such nonetheless, pub- that a have will (cid:127) public It appears serve uses. public lic when the is to purpose be general redevelopment scheme was fol- primary paramount beneficiary here, although lowed as discussed below power of eminent domain the exercise any reliance failure upon Condemnee’s effectuating that to consider blight the 1968 certification is citizenry large rather cannot legally support any flawed and im- entity will be than a or individual plication that she somehow waived her ob- principal recipient any benefit.

jections to the taking. this Erie B cogent recognized observations outset, At the correctly Philadelphia Clay v. York made Co. principles recites the well-settled Co., 309-310, Clay 241 Pa. 88 A. authority pow to exercise eminent domain (1913): strictly er must and that a construed Legislature While the certification does not in and of corporations invest individuals prop itself authorize the condemnation of private for right property to take a Aires, erty, citing Winger to v. Pa. 371 public clearly recognized by is use (1952), Redevelopment 89 521 Constitution, suggestion is a there not v. Scranton Kameroski of , anywhere private property may be In Pa.Cmwlth. 616 A.2d It has private for a use. been taken addition, authority a does in our uniformly held the courts own power acquire not have one man’s land jurisdictions as well as in other state satisfy mаn’s by condemnation another right of eminent domain that under the need, Redevelopment Authority Erie. of only be taken for a private can Washington See also Condemnation of principle underlying (noting public of use.... Street that the exercise eminent of has the a is that the owner derogation' private domain of right the uninterrupted burgh, use and en- held in Redevelopment joyment world, against all the sub- Scranton: ject, however, sovereign right to the blight A does in and certification may much as state take so of it be condemnor, give of itself as such necessary public to serve the various Redevelopment Authority], [Scranton which may properly uses to sub- authority to all property condemn jected. URL, Under, within the area. This Redevelopment Court clarified in Au- blight merely an inter- certification thority reasoning Erie that the above physical nal finding that cеrtain condi- was still that it in way valid and no had project tions exist area that make short, by Belovsky. been altered noth- “blighted.” the area The certification ing in the Constitution authorizes a property rights does not affect but itself private private property for use. stage redevelopment. sets the for Id., rejected 1104. 616 A.2d at The Court

C argument failure condemnees’ 2(a) Section of the Urban Redevel challenge there to the certification of Law, opment 1702(a), authorizes blight right effectuated waiver their designation an area be challenge subsequent taking. That unsafe, dwellings unsanitary, cause its are holding applies equal force to the inadequate or overcrowded. There is no present absolutely case. There is merit no dispute present in the case contention, or suggestion, that Con- Property which sits was certified as right waived to chal- demnee somehow blighted by Planning Commission in lenge of Tak- Declaration Likewise, November 1968. there is no ing challenge she failed to because dispute that challenge Condemnee did not Planning blight Commission’s certification blight, the certification of which occurred for Nor Philadelphia her North area. years prior some To does the law trial court’s de- support the suggest may that she have waived her termination that once certified present by failing to contest the blighted, it is irrelevant “who” the blight patently certification is erroneous as It is developer be. evident that Redevelopment shown the decision Authority may not funds upheld Scranton. This Court acquire religious organization land for the trial decision that court’s the certifica pri- operation its construction and of a tion of there did not the con affect vate school. rights merely

demnees’ property but set stage redevelopment, citing Matter D Urban Redevelopment requirements The Establishment Clause Pittsburgh, 527 ‍​​​​‌‌​‌‌‌‌​‌​​‌​‌‌‌​‌‌​​​​‌‌‌‌​‌​​‌‌‌​​‌‌​​​‌​​‍carefully were examined United noted that while Appeals Court of Cir- States Third Law allows cuit in Philadelphia, Gilfillan implement or effectuate a (3d Cir.1980). 924 of 637 F.2d The Court to plan specific enough notify it must be Appeals three-part set forth test of potential condemnees their future. applied determining must be when wheth- Following the decision in Matter er a violation of Establishment Clause of has deciding Pitts- occurred. a violation

829 Appeals applied the three- The case, explained the court occurred presented Gil- evidence part test following: confronted fillan, the court was where of the The first amendment Constitu Phila- issue of whether with “Congress shall make provides tion the Establishment Clause delphia violated respecting an establishment of no law $200,000 to con- more than paid when it religion, or the free exercise prohibiting provide and special platform struct a The amendment was made thereof....” Holy Mass extraordinary for a assistance on states the fourteenth binding II Paul by Pope John that was conducted v. Everson Board Edu amendment. Appeals Logan Circle. The Court 504, 507, cation, 1, 8, 67 330 U.S. S.Ct. Court, as to the District agreed with the (1947). 711[, The two L.Ed. 719] 91 of the construction prong, that first deep stirred feel religion clauses have an incidental merely had platform special meaning has been much ings and their instead, primary pur- purpose; secular Although of the litigated. members Su ie., religious, was pose City’s of the action disagreed on the preme Court have Pope as- Holy Mass celebration application the Establishment proper of the Church. by Bishops sisted Catholic Clause, fairly simple statement Ap- prong, second the Court As “(A) legislative enact test has evolved: District Court agreed with the peals again the Establish ment does not contravene primary reli- City’s actions had that the legislative if it a secular Clause has they Pope’s in that aided the gious effect principal primary if effect purpose, by providing the construction mission religion, advances nor inhibits neither Pope to celebrate Mass and enabled the and if it does not foster an excessive religious message. The deliver with government entanglement reli could plain primary effect gion.” Committee Public Education religion. advancing considered as 646, 653, v. 444 100 S.Ct. Regan, U.S. ie., entanglement, prong, third As 840, 846, 94[, 102] 63 L.Ed.2d joint agreed Appeals the Court citing Maryland Roemer v. Public Archdiocese between the planning event Board, 736, 748, 426 96 Works U.S. S.Ct. entanglement City revealed its 2337, 2345, 179[, (1976); L.Ed.2d 188] District Cоurt made religion. The Ny v. Public Education Committee finding that this assistance the alternative 772-73, 93 S.Ct. quist, U.S. among and promote divisiveness tended 948[, 2955, 2965, 962-963] 37 L.Ed.2d Because the religious groups. between Kurtzman, (1973); v. test, Lemon U.S. the Court City did not meet 602, 612-613, 91 S.Ct. the Establish- it violated Appeals held that 745[, circuit is had 755] L.Ed.2d This the Archdiocese and that ment Clause unconstitutionally of this application with the the funds familiar to reimburse Holy support the Mass. three-part spent test. (citations three-part application 637 F.2d at 928-929 Gilfillan, unequivo- omitted).2 here shows the evidence test Estab- violated Springfield outside of district boundaries School District 2. See also De- Education, pass stating con- that to partment lishment Clause (1979) (applying three-part test to deter- requirements three muster all stitutional requiring school trans- mine whether statute the statute be satisfied before the test must portation nonpublic school stu- stand). be allowed within ten milеs dents within a district and 830

cally Authority’s taking that the and religious contra- articles” was unconstitutional First, vened the Establishment Clause. as it violated the Establishment Clause. Authority’s primary purpose was to This Court determined that the tax had acquire Partnership for Hope exemption land pur- failed serve secular it op- make available for construction pose pass and thus did not the constitu- Clause, of private Although eration school. tional bar the Establishment Authority argued yet that no contract relying heavily upon reasoning Monthly, Bullock, executed between the holding and the Inc. Texas 1, Hope Partnership, 890, such evidence is imma- 489 1 U.S. 109 S.Ct. 103 L.Ed.2d terial redevelopment proposal where the Supreme The Court reviewed case religious organization analyses included the law as the of the Establishment Clause developer, Kurtzman, Planning ap- beginning Commission with Lemon v. prоved the proposal, enacted Council U.S. S.Ct. L.Ed.2d. required (1971), ordinance and the it that concluded under Texas Second, proceeded then Monthly subsidy critical that any Authority’s acquisition granted religious organizations for the be war- Hope Partnership primary had a religious overarching pur- some ranted secular directly justifies effect because it aided the reli- like pose benefits non- gious organization's provide Supreme mission to groups. The Court rea- services, among faith-based educational soned as follows: things, in the blighted residents Comparable Texas deficient ex- acqui- area. See S.R..R. at 125b. The land Pennsylvania’s emption, does exemption had primary advancing sition effect of publications by not extend to nonreli- Third, religion. dispute there is no taxed, gious groups, which are the Authority jointly worked with requisite therefore lacks also Hoрe Partnership effectuating tak- legis- breadth for this to but anything be ing. Hope The evidence shows that the solely provide lation intended tax re- Partnership designated the land that Lacking lief religious organizations. requested wanted and purpose, exemp- a broader secular this it, acquire proceeded to tion cannot survive Establishment joint do so. This effort demonstrates the pursuant to the Clause United entanglement between church and state. holding in Supreme Court’s Tex- States Monthly. Commonwealth,

In Haller v. Depart- Revenue, Haller, 556 Pa. 556 Pa. 728 A.2d at 356. Pennsylvania in Haller Supreme provides per- decision added upheld ruling authority this that a Court’s suasive conclusion Pennsylvania exemption Authority’s taking sales tax for the reached here that .the religious publica- “sale at retad or constitutes a violation of the Establish- by religious tions sold and Bibles ment groups Clause.3 Although designation represents independent 3. the trial court did not consider the such quashing allegations improper purpose, basis of favoritism condemnation addi- that the issue tion nonetheless asserts violation of Estab- impermissible purpose points lishment Clause. Condemnee out that squarely concurring opinions majority before the on the Au- Court based Kelo thority’s Partnership designation emphasize taken acqui- pretext beneficiary performing public pur- as the intended of the land under the pose prior sition to the condemnation and when actual is to bestow Judge BY conclusion, OPINION DISSENTING In the Court holds that PELLEGRINI. in an of law trial court committed error objec- overruling preliminary Condemnee’s majority from the respectfully I dissent Au- permit tions. The law does not Redevelopment Au- decision because (Author- City Philadelphia then private property thority and thority take ity) may power eminent domain еxercise religious organization a it over to turn private property homeowner’s condemn a development the law private purposes; blighted in a is located when require does not property own- neighborhood, may con- before she certification case, Mary Smith in this er/condemnee precludes the taking; test the settled law (Smith), prove that the failed to taking private property from that was not condemning property was Clause; violation of Establishment blighted. alternative, and, in the the law does not This case involves the condemnation here support a conclusion that located property owned Smith a use. The order of the public was for daughter, Eight North Street in which therefore trial court is reversed. Smith, neighbor- resided. The Veronica City blighted certified hood was ORDER Planning Philadelphia’s Commission 1968.1 NOW, day February, AND 6th this “Hope Partner- September 2006, the order of the of Common (Hope Partnership) for Education” ship Philadelphia County overruling Pleas of request renewed its initial by Mary preliminary objections filed Philadel- acquire land eastern North Smith, Condemnee, hereby reversed. building private phia with after-

independent middle school PELLEGRINI, J., dissents and files an programs school adult education opinion in LEADBETTER In its neighborhood. which blighted center in a Statement, LEAVITT, JJ„ Partnership indi- join. Vision placing preclude from further private did not states benefit another eminent do- pretextual on the exercise of likely restrictions less to be when ultimate already many states main developer owner condemned "public requirement that is imposed a use” unknown at standard, stringent than the federal more Although premised the reversal here is on have been established as some of which the Establishment violation of law. Also other state constitutional matter of Clause, ignore that in Kelo the Court cannot state eminent requirements are set forth in agree- the court’s decision was based on its grounds that restrict domain statutes comprehensive devel- ment that the economic takings may upon be exercised. The which opment plan public purpose there served a transfer of that a one-to-one court indicated require- thereby public use satisfied the the context of property executed outside plan Amendment—the the Fifth development plan present- integrated was not designed the entire of New to benefit ed in Kelo. contrast, taking here London. In stark acquire 2(a) plan resulted from the Urban 1. Section Law, public May P.L. funds for the benefit of Act school; hence, amended, organization authorizes that to build requirement. designated аs when its satisfy may be cannot unsafe, inadequate unsanitary, dwellings are particular Of note is court’s observation affirming taking, its decision or overcrowded. that in Kelo project eated was proving purchase a collaborative and development of However, venture in properties. the 39 pres- “tradition ser- at the time, vice,”2 school, agreement but ent no has been middle after- entered into between the programs ‍​​​​‌‌​‌‌‌‌​‌​​‌​‌‌‌​‌‌​​​​‌‌‌‌​‌​​‌‌‌​​‌‌​​​‌​​‍Hope school and the adult education Partnership that Partnership binds the center were “a variety intended to serve and can anything away walk from the pro- religious backgrounds and beliefs.” The ject. Authority presented a redevelopment pro-

posal to City of Philadelphia’s Planning The Authority notified Smith that it was (Commission) Commission which included condemning her property and offered her property, Smith’s as well as оther prop- $12,000 compensation and aid in relocat- erties, which purchase would ing. initiated, After the Smith for a nominal amount through City’s preliminary filed objections alleging, inter Neighborhood Transformation alia, Initiative3

for by Hope Partnership.4 Nonethe- was not for a purpose but less, the approved Commission the propos- a religious purpose instead for in violation al and City submitted Council for the Urban Law and the approval. On December City Establishment Clause United States passed Constitution,5 Council Ordinance No. 020681 ap- process and that her due project 2. The was described groups: as follows: 14 other the Cecil B. Moore (55 Homeownership parcels Zone used Child, January Holy Sisters of the housing to build affordable for hom- first-time Brothers of the Christian Schools and Sis- (five ebuyers); City Board of Trusts vacant Mercy gathered ters ongo- to initiate the structures tо be used build affordable hous- ing process creating intergeneration- ing homebuyers); for first-time Clifford al, independent educational center in an (existing historic structures to be renovated economically depressed educationally and housing elderly); into 67 units of Hab- Philadelphia. underserved area of North Humanity (eight itat for vacant lots and one being This collaborative venture is built on housing vacant structure used to be to build Child, long Holy established Lasallian single-families for and low and moderate in- service, Mercy and tradition of character- families); (14 Project come Homestart vacant reverence, compassion ized belief in structures); (23 Susquehanna parcels Seniors life-changing of education. As housing to build affordable for seniors and religious, journey vowed we are called income); families of median Green- EZ/PHS need, respecting serving with those in (25 use); ing parcels green” for “clean and variety religious backgrounds and beliefs. Seedy (existing Acres site be used to save 42a.) (Reproduced Hope Record at Part- green use); space community for future 5th nership develop also prop- desired to (seven structures); District vacant Rehabs En- development. erties for (five structures); capsulated Properties vacant Neighborhood 3. The Transformations Initia- Program Women’s Christian Revitalization proposal strategy tive is described as "a (seeks utilize tax credits new for construc- Philadelphia’s neighborhoods to rebuild families); Komplete tion low for income thriving communities with clean and secure (one Welding parcel expand existing vacant streets, outlets, recreational cultural business); (two Development Phoenix vacant quality housing. Among goals the central creating acquired living structures to be for are to danger- NTI eradicate caused space persons living or families with HIV lots, buildings, ous AIDS); debris-filled abandoned (five Project H.O.M.E. vacant cars, graffiti, promote litter and and to rede- developed housing structures to be into velopment through large-scale land assem- homebuyers). income first-time low/moderate 87b.) bly.” (Reproduced Record at 5.The Establishment Clause of United proposal 4. provides "Congress The Commission's includ- States Constitution projects developed by respecting ed to be Partner- shall make no law an establish- Const, ship, but projects develop- religion.” also included ment of U.S. amend. 1. In re blighted.” to be being area deemed rights were violated. Be Lands Situate and Condemnation of prelimi- The trial overruled court Scranton, Pa. ing nary objections determining that after Cmwlth. was located in a Smith’s denied, aрpeal petition allowance of not Property area and because was “[t]he 527 Pa. 589 A.2d 204 “When taken, however, provide in order to Plan, by proposed prepared the the developer; the for the rather entire area Authority, ultimately is blighted plan was and the redevelopment body, gov presented governing to the the a Property the turnover of the included reject Plan body is free to the on erning Pennsyl- private developer, a scenario the any a belief that condi ground, including Supreme proper vania court found has Project Area not warrant tions the do (Trial February public purpose.” court’s the the of area. 35 P.S. 2.) specifically 2005 decision at It ad- 1710(h). body governing ap Unless the taking argument dressed Smith’s that the Plan, proves Planning Commis the the impermissible was is- because there were blight of and the Rede sion’s certification church sues of and state due Authority’s of Plan veloрment appi’oval the religious Partnership’s as the de- affiliation beginning pro are middle to a merely veloper, finding property that the tak- was Through that have no end.” Id. cess will substandard, en eminent domain due process, out this the condemnee is not conditions, blighted and that was all that hearing entitled to notice and because was relevant. The trial that court noted blight by the certification of the challenge Smith had failed to the certifica- However, adjudication. is not an Id. the of blight. tion may the condemnee attack certification Court, appeal majority On to this the objections to decla filing preliminary grants reverses the trial court and Smith’s proving that taking ration objections preliminary disagrees because it blighted. Id. neighborhood is 1) that Smith’s failure to challenge case, not challenging In this is Smith certification of the blight constituted blight in her certification taking, waiver of her 2) prop- or as it to her neighborhood pertains property blighted, once is certified it Authority is authorized to take erty. The to private developer be transferred property regardless of whether it has a regardless of who the developer is. The now in developer property, for the or majority also no disagrees that there was future, is purpose because “entanglement church and state.” I City in an area. eliminate required dissent because Smith was Scranton, Belovsky Redevelop- citing prove property that her condemned 357 Pa. 54 A.2d 277 Authority, blighted neighborhood, not in a not wheth- (1947),we stated: nature, might project er and failed to do so. purpose, ... is directed [public] clearance, solely to the reconstruction authority When determines that a area, blighted and rehabilitation of neighborhood particular parcel accomplished, pub- and after that is is on property blighted, does so based realized.... purpose completely lic is dem- area/parcel studies conducted Scranton, at 254. Be- onstrating that “certain conditions physical Redevelop- blighted, cause the area is exist as defined that the area may acquire ment Law in the so project area that make Child, may be redeveloped. there is no Because Brothers the Christian Schools dispute Mercy, and that and Sisters the religious orders “public purpose” are sponsoring project, state redevelop- there is no project their Vision Statement in-place, ment contract those facts should “creating intergen- assuming erational, have ended the matter. Even independent educational center there was a economically contract existence in an depressed and edu Clause, violated Establishment cationally North underserved area of Phil setting does not justify aside the condem- adelphia,” with intent to serve “a vari An nation. Establishment religious backgrounds Clause violation ety and beliefs.” would render the contract unenforcea- Holy Partnership yet Because has not blight ble. Elimination is valid otherwise, still shown that its intentions are purpose even if the lies fallow until it such it until time we must take at its is conveyed developer. to another give opportunity pro word and it the school, pro the middle after-school vide if Even we were forced to address grams adult center for from students here, squarely the I church-state issue do variety of religious backgrounds and be any not see violation of the Establishment See Dauphin liefs. Central School Dis First, Clause of the First Amendment. Infinity trict Coаlition Founding is property well-settled that after the is School, (Pa. Charter A.2d eliminated, acquired is Cmwlth.), petition appeal allowance conveyed can be to a denied, (2004) 580 Pa. developer. Belovsky; Scranton. (held that application for proposed char majority What the is suggesting is that the mentally ter school for gifted students or, matter, any govern- for that granted because no violation of properly entity convey mental could not Charter School Law that charter school church, that it has in its possession for a did discriminate admissions on ba not school, home, nursing a college run ability sis intellectual and “no evidence religious group or a shelter run of record that ICS practice would dis Army Salvation aid because that would practices.”) crimination in its enrollment religion and the Establishment violate contrary, To Clause. what that out- assuming Even that the Establishment suggests “viewpoint come us, is discrimina- issue is because there Clause before tion” against religious groups, which is an one pur- scintilla of evidence that the impingement on their First Amendment of this pose project to establish a reli- rights that has been condemned gion but to live in serve individuals who Supreme States in Good area, economically United depressed allega- School, News Club v. Central 533 tion alone does not even close come Milford U.S. S.Ct. 150 L.Ed.2d 151 implicating the Establishment' Clause. reasons, I respectfully For these dissent. Second, pled based on what has been Judges LEADBETTER and LEAVITT project, possible about the no Es- there is join dissenting in this opinion.

tablishment Clause violation because no proof project there is is a

religious enterprise, but

being by groups run who have Holy

motivations to the poor. educate notes Partnership tion the was authorized to take God, schools presence assume the' it. schools are accept non-sectarian and stu- race, creed, color, regard dents without A religion ethnicity. Also none of the cases that cited to support To-provide a procedural framework violation of the Establishment Clause in- the scheme under the power volved eminent domain or urban Law, the Supreme redevelopment law. in Belovsky: Court stated Moreover, when a determination The local ‍​​​​‌‌​‌‌‌‌​‌​​‌​‌‌‌​‌‌​​​​‌‌‌‌​‌​​‌‌‌​​‌‌​​​‌​​‍planning commission makes a made has “redevelopment plan” designating remedies, propose and the exercise emi an area which finds nent domain power is one the tools at its because of existence of condi- disposal implement a redevelopment tions enumerated in act and contain- proposal. In re See Condemnation Ur ing redevelop- recommendations for the (Pa. Redevelopment, ban plan ment of such area. The must set Cmwlth.2003), appeal granted, 577 Pa. area, forth the boundaries of the infor- any 847 A.2d 59 Also contract concerning buildings mation pop-

Case Details

Case Name: A Condemnation Proceeding in Rem by the Redevelopment Authority of Philadelphia

Court Name: Commonwealth Court of Pennsylvania

Date Published: Feb 6, 2006

Citation: 891 A.2d 820

Court Abbreviation: Pa. Commw. Ct.