Appeal of REDEVELOPMENT AUTHORITY OF the CITY OF PHILADELPHIA for the Purpose of Redevelopment of North Philadelphia Redevelopment Area Model Cities Urban Renewal Area Condemnation No. 30 B Philadelphia, PA including certain Land Improvements and Properties Re: 1839 North Eighth Street.
Supreme Court of Pennsylvania.
Decided Dec. 27, 2007.
938 A.2d 341
Argued April 16, 2007.
Lewis Rosman, City of Philadelphia Law Dept., for City of Philadelphia, appellant amicus curiae.
Edward M. Posner, Drinker, Biddle & Reath, L.L.P., Philadelphia, for The Hope Partnership, appellant amicus curiae.
Robert J. Sugarman, Sugarman & Associates, P.C., Philadelphia, for Mary Smith, appellee.
Steven Freeman, New York City, for Anti-Defamation League, appellee amicus curiae.
Barry E. Ungar, Theodore R. Mann, Judah Isiah Labovitz, for Jewish Social Policy Action Network, et al., appellee amici curiae.
BEFORE: CAPPY, C.J., CASTILLE, SAYLOR, EAKIN, BAER, BALDWIN and FITZGERALD, JJ.
OPINION
Justice BALDWIN.
The primary question raised in this appeal is whether taking private property, certified as blighted 36 years previously, by eminent domain, in order to convey the property to a religious entity as part of a redevelopment plan, violates the Establishment Clause of the United States Constitution. The Commonwealth Court, in a four-three en banc decision, reversed the Court of Common Pleas of Philadelphia‘s determination that the taking was lawful, and found that, among other things, the taking violated the Establishment Clause. Because we believe that under the limited facts of this case the taking was Constitutional, we reverse.
On September 4, 2002, the Hope Partnership for Education (the “Hope Partnership“), a coalition of several Catholic groups, sent a letter to Philadelphia‘s Redevelopment Authority (the “RDA“) requesting that the RDA acquire 39 specific parcels that the Hope Partnership had targeted in eastern North Philadelphia (including the Property) for the purpose of building a non-denominational, faith-based, not tuition based school for children of the blighted neighborhood and its surroundings. The RDA prepared a redevelopment proposal for the Planning Commission, including the request from Hope Partnership. The Planning Commission approved the proposal, which was then submitted to Philadelphia‘s City Council (“City Council“). Following a public hearing, the City Council passed an ordinance approving the acquisition of, among other things, the 39 properties designated by the Hope Partnership and the Partnership was identified as the developer. There is no question that these properties were blighted—only two were actually still occupied—and the estimated just compensation for the Property was $12,000. All 39 properties were to be transferred to the Hope Partnership. R. 69a.
The Thirtieth Amended Redevelopment Proposal (“Redevelopment Proposal“) covered significantly more than just the acquisition for the Hope Partnership. One thousand three hundred seventy six parcels were acquired for eighteen separate projects, with purposes including: (1) building affordable housing units for first-time homebuyers; (2) renovating historic structures for affordable housing for the elderly; (3) building low-income senior rental housing; (4) creating community gardens and related programs; (5) building a religiously operated middle school (the Hope Partnership program); (6) building low-income rental housing; (7) expanding existing business use; (8) building rental units for persons or families living
Condemnee filed preliminary objections to the taking on December 23, 2003. Condemnee alleged, among other things: that the taking of the Property was not for a public purpose; that the taking was arbitrary, capricious and discriminatory; that the taking is the result of a predetermined illegal commitment to a religiously-affiliated private entity; and that Condemnee‘s due process rights were violated.
The trial court overruled the preliminary objections, finding that “[o]nce the land was certified as blighted, it is proper then to transfer the land to private development, regardless of ‘who’ that future developer may be.” In Re: 1839 N. Eighth St., November Term, 2003, No. 2988, slip op. at 3 (Pa. Ct. of Com. Pleas of Philadelphia Cty. February 24, 2004). The trial court relied upon this Court‘s decision in Belovsky v. Redevelopment Auth., 357 Pa. 329, 54 A.2d 277 (1947), in which we stated that the taking of private land deemed blighted was proper because the statute‘s purpose was “the clearance, reconstruction and rehabilitation of the blighted area” and the separate, subsequent transfer to a private developer was “purely incidental to the accomplishment of the real or fundamental purpose.” Id. at 340, 54 A.2d at 283. Because the trial court found the taking of the property due to its blighted
The Commonwealth Court reversed, finding four errors in the trial court‘s decision. According to the Commonwealth Court, the trial court erred: (1) in holding that land certified as blighted may be acquired and transferred to a private developer without regard to the identity of the developer; (2) in presuming that a condemnee‘s failure to challenge the certification of blight constituted waiver of any challenge to the taking; (3) in rejecting a condemnee‘s claim that the taking implicated an impermissible entanglement of church and state; and (4) in finding that a determination of blight was sufficient reason to justify the exercise of eminent domain.
Judge Pellegrini authored a dissent, joined by Judges Leadbetter and Leavitt, in which he found that in order for the taking to be invalid, Condemnee was required to prove that her property was not located in a blighted area, which she failed to do. According to Judge Pellegrini, the fact that the potential developer was a religious entity was not pertinent to the decision. Relying on Belovsky, the dissent would have found that the public purpose necessary to effectuate the taking is completely realized when the taking occurs for the purpose of clearance, reconstruction and rehabilitation of the blighted area. In re 1839 N. Eighth St., 891 A.2d 820, 834
The RDA petitioned this Court for a grant of allocatur, which was granted.
An appellate court‘s scope of review where a trial court has sustained or overruled preliminary objections to a declaration of taking is limited to a determination of whether the trial court abused its discretion or committed an error of law. Condemnation of 110 Washington St., 767 A.2d 1154, 1157 (Pa.Commw.Ct.2001). Review of the RDA‘s certification of blight and subsequent taking is limited to a determination that the RDA has not acted in bad faith, has followed the statutory procedures, and has not violated any constitutional safeguards. Crawford v. Redevelopment Auth. of Fayette County, 418 Pa. 549, 553, 211 A.2d 866, 867 (1965).
The record does not support a bad faith claim against the RDA. “Public officials are presumed to have acted lawfully and in good faith until facts showing the contrary are averred, or in a proper case are averred and proved.” Robinson v. Philadelphia, 400 Pa. 80, 86-87, 161 A.2d 1, 5 (1960) (citing Parker v. Philadelphia, 391 Pa. 242, 249-50, 137 A.2d 343 (1958); Hughes v. Chaplin, 389 Pa. 93, 132 A.2d 200 (1957)). Justice Kennedy, in Kelo v. City of New London, 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005), instructed that “[a] court confronted with a plausible accusation of impermissible favoritism to private parties should treat the objection as a serious one and review the record to see if it has
The constitutional violation allegation centers on whether the Commonwealth Court‘s review of the Establishment Clause issue was too narrow, leading to a misapplication of the three-part test announced in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). This Court has noted that Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997), has not limited or abrogated the Lemon test. Haller v. Dep‘t of Revenue, 556 Pa. 289, 292, 728 A.2d 351, 352 (1999). The Lemon test requires, for a government action to survive an Establishment Clause challenge, that the state demonstrate: (1) that the action serves a secular purpose; (2) that its principal or primary effect neither advances nor inhibits religion; and (3) that it does not foster an excessive government entanglement with religion. Lemon at 612-13, 91 S.Ct. at 2112, 29 L.Ed.2d at 756. The majority opinion in the Commonwealth Court found that the taking in this instance violated all three prongs of this test. First of all, the Hope Partnership requested specific land, which was acquired by eminent domain. This did not serve a secular purpose, but rather a purely religious one. Second, the principal or primary effect advanced religion by creating a religious school where there had not been one. Last, the relationship between the Hope Partnership and the RDA demonstrates excessive entanglement. In re 1839 N. Eighth St., 891 A.2d at 830.
The second prong of the Lemon test has to do with whether the principal or primary effect of the government action, in this case, the taking of the Property, is to advance or inhibit religion. The Commonwealth Court found that the acquisition “had a primary religious effect because it directly aided the religious organization‘s mission to provide faith-based educational services, among other things, to residents in the blighted area.” In re 1839 N. Eighth Street at 830. We reject
In 1973, the United States Supreme Court decided Comm. for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973). In Nyquist, a New York law established financial aid programs for nonpublic elementary and secondary schools, including direct monetary grants to “qualifying” nonpublic schools that were to be used for the “maintenance and repair of ... school facilities and equipment to ensure the health, welfare and safety of enrolled pupils.” Id. at 761-62, 93 S.Ct. at 2960, 37 L.Ed.2d at 956 (citing
In Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993), the Court rejected an Establishment Clause challenge to a program providing sign-language interpreters to students, even those attending pri-
In 2002, in Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002), the United States Supreme Court distinguished Nyquist, and found that a program that provided an incidental benefit to religious schools while providing a broad benefit to all students without regard to whether they attended a sectarian or non-sectarian school did not violate the Establishment Clause. In Zelman, there was a challenge to an Ohio law which provided educational choices to lower income students in Cleveland‘s schools, which, at the time, were some of the worst schools in the nation. Id. The high Court found that the Ohio program was “neutral in all respects toward religion.” Id. at 653, 536 U.S. 639, 122 S.Ct. at 2467, 153 L.Ed.2d 604.
While the Commonwealth Court is correct that an effect of this taking is to advance a religious organization‘s mission to provide faith-based educational services, this is clearly 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. See, In re Condemnation by the Urban Redevelopment Auth. of Pittsburgh at 446-47, 913 A.2d at 186-87. One secondary effect is the provision of quality non-denominational educational opportunities to low-income urban families in their own neighborhood. R. 125b. Another secondary effect could potentially be the advancement of religion; however, as far as we can tell from the record, all potential developers were treated in the same manner: They were permitted to indicate property contained within the large blighted area in North Philadelphia that they would be willing to develop. The development plans were reviewed for their potential to eliminate blight in the neighborhood and their conformance with
The third prong of the Lemon test requires there to be no excessive entanglement between the state and a religious entity created by the government action. The Commonwealth Court found the instant facts to constitute excessive entanglement. We disagree. The Commonwealth Court has conflated the second and third prongs of the test. Basically, the Commonwealth Court found that because they believed the principal or primary effect of the transfer of the Property to Hope Partnership was the advancement of religion, then any relationship between the RDA and Hope Partnership constituted a joint effort that reflected excessive entanglement. See In re 1839 N. Eighth St., 891 A.2d at 830. The Commonwealth Court ignores that entanglement is more than just mere interaction between government and religious entities. The United States Supreme Court has said that “[i]nteraction between church and state is inevitable and we have always tolerated some level of involvement between the two. Entanglement must be ‘excessive’ before it runs afoul of the Establishment Clause.” Agostini v. Felton, 521 U.S. 203, 233, 117 S.Ct. 1997, 2015, 138 L.Ed.2d 391, 420 (1997) (citing Bowen v. Kendrick, 487 U.S. 589, 615-17, 108 S.Ct. 2562, 2577-78, 101 L.Ed.2d 520, 544-46 (1988) (periodic monitoring of counseling program set up by religious institution not excessive entanglement)); Roemer v. Board of Public Works of Md., 426 U.S. 736, 764-65, 96 S.Ct. 2337, 49 L.Ed.2d 179 (1976) (annual
The exercise of eminent domain to eliminate blight has been approved repeatedly by both this Court and the United States Supreme Court. Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954); Kelo v. City of New London, supra; In re Condemnation by the Urban Redevelopment Auth. of Pittsburgh, supra; Crawford, supra. Therefore, we find that the subsequent sale of the Property to a private developer, even a developer who is a religious entity, does not constitute “entanglement” that would somehow make the taking unconstitutional.
For the reasons stated above, to the extent that the Commonwealth Court was correct when that court found it necessary to overrule what it believed to be the trial court‘s finding of waiver for Condemnee‘s failure to challenge the certification of blight, we affirm. In all other respects, we reverse and remand to the Commonwealth Court for a determination of any outstanding issues consistent with this opinion.
Chief Justice CAPPY and Justices CASTILLE, SAYLOR, EAKIN and FITZGERALD join the opinion.
Justice BAER files a dissenting opinion.
Justice BAER dissenting.
I respectfully dissent from the Majority‘s conclusion that taking private property through condemnation and transferring that property for nominal consideration to a religious partnership to develop a religious school does not have the principal effect of advancing religion. I believe that this government action provides direct aid to a religious school in violation of the Establishment Clause, and would therefore affirm the Commonwealth Court‘s holding that the taking was unconstitutional.
As part of a redevelopment plan in Philadelphia, the City of Philadelphia‘s Planning Commission certified as blighted the neighborhood that includes the property located at 1839 North
The RDA prepared a redevelopment proposal for the Planning Commission that included the acquisition for Hope Partnership, as well as numerous other nonreligious projects, such as building affordable housing, expanding existing businesses, and creating community gardens. The Planning Commission approved the proposal, and the Philadelphia City council approved the acquisition. Thirty-nine properties were identified for the Hope Partnership at a proposed acquisition cost to the RDA of $860,250.1 After acquiring these properties, the RDA proposed to transfer them to the Hope Partnership below market value, for nominal consideration.
Appellee challenged the condemnation before the trial court, which held that the existence of blight justified the condemnation regardless of the specific developer‘s purpose for the
On appeal, the issue before this Court is whether the RDA may exercise eminent domain to condemn a private homeowner‘s property that was certified as blighted and then transfer that property for nominal consideration to a purely private religious organization to construct and operate a private religious school. As noted, this issue implicates the Establishment Clause and Article 1, Section 3, of the Pennsylvania Constitution.3 To survive an Establishment Clause challenge, the state must demonstrate (1) that the government action serves a secular purpose; (2) that its principal or primary effect neither advances nor inhibits religion; and (3)
The Majority finds the taking constitutional premised upon its application of the three-prong Lemon test. Regarding the first prong, the Majority finds a secular purpose in the elimination of blight as established by the Urban Redevelopment Act. See
I agree with the Majority‘s conclusions regarding these two prongs of the Lemon test. However, I part ways with the Majority regarding the second prong because I disagree that the state has demonstrated that the government action‘s principal or primary effect neither advances nor inhibits religion. The Majority describes the government action as the taking of the Property, and concludes that one effect of the taking is to advance a religious organization‘s mission, but that this is not the principal or primary effect. Shifting gears and looking more broadly at the entire redevelopment plan, rather than the specific taking and transfer for the Hope Partnership, the Majority reasons that the principal or primary effect of the redevelopment plan is to eliminate blight in the neighborhood, while a secondary effect is the provision of quality religious educational opportunities and, potentially, the advancement of religion. The Majority reaches its conclusion in reliance on Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002), and Zobrest v. Catalina Foothills School District, 509 U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993).
I respectfully disagree. This case, like all other Establishment Clause cases, requires a careful examination of whether the government action violates any of the Establishment
Each time the Supreme Court has been faced with Establishment Clause challenges to private choice programs involving indirect aid to religious schools, the Court has rejected the challenge. In Mueller, the Court rejected an Establishment Clause challenge to a program authorizing tax deductions for educational expenses because the class of direct beneficiaries included all parents rather than specific schools. Similarly, in Witters, the Court rejected a challenge to a vocational scholarship program that provided tuition aid to a blind student who wished to use the grant to attend a Christian college and become a pastor, because the aid that ultimately flowed to religious institutions did so only as a result of the choices of the aid recipients. In Zobrest, the Court examined whether a deaf student was permitted, under the Establishment Clause, to bring his state-employed sign-language interpreter with him to a Roman Catholic School. The Court concluded broadly that government programs that neutrally provide benefits to classes of citizens without regard to their religion are not
In contrast to these indirect aid cases, special Establishment Clause dangers exist when aid is given directly to religious schools. Mitchell, 530 U.S. at 820, 120 S.Ct. 2530. Unlike the Majority, I find no analogy between this case and cases detailed above involving indirect private choices. Rather, I believe this is a case of direct government aid, in the form of a land transfer below market value to a religious organization for the development of a religious school. The state action here is neither directed at, nor directly benefits, individual students without regard to where they choose to apply the aid. Instead, the aid here is essentially a land grant, directly to the religious school, as a consequence of state decision-making.
Appellee relies on two cases concerning direct aid to religious schools, which I agree are more germane to the facts sub judice. See Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971) (plurality); Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948. In Tilton, the Court rejected a
In Nyquist, the challenged government action authorized direct payments to nonpublic religious schools for maintenance and repair without restricting payments to those expenditures related to the upkeep of facilities used exclusively for secular purposes. Although the program was enacted for ostensibly secular purposes as part of a broader plan encompassing nonpublic schools serving low-income families, the Court found that the program‘s function was “unmistakably to provide desired financial support for nonpublic, sectarian institutions.” Id. at 783, 93 S.Ct. 2955. A majority of the Court struck down the law, concluding that because the grants were given without restriction on usage, it was possible for schools to finance their entire maintenance and repair budget from state tax-raised funds, and nothing prevented the schools from paying out of state funds the salaries of employees who, for example, maintained the school chapel. Absent appropriate restrictions on expenditures, the Court concluded that “it simply cannot be
In the instant case, the RDA paid, from the public treasury, an acquisition cost of $860,250 for the thirty-nine parcels of land it intends to transfer to the Hope Partnership for nominal consideration. The Hope Partnership, a religious partnership, intends to develop a religious school on the property to advance Judeo-Christian values. The RDA is, therefore, essentially gifting land to a religious organization. It is not clear what the value of this gift is, but it cannot be disputed that the difference between the $860,250 paid by the RDA and “nominal” cost paid by the Hope Partnership represents substantial aid, or direct financing of religious education, with the primary effect of advancing religion. Cf. Everson v. Board of Edu., 330 U.S. 1, 16, 67 S.Ct. 504, 91 L.Ed. 711 (1947) (“No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they adopt to teach or practice religion.“).
Further, the transfer of land to the religious organization will be given without restriction on usage. If tax-raised-funds may not be granted to institutions of learning where the possibility exists that those funds will be used to construct a facility utilized for sectarian activities twenty years hence, see Tilton, and they may not be distributed to sectarian schools for the maintenance and repair of facilities without limitation on their use, see Nyquist, it follows that they cannot be used to purchase land to give outright to a religious institution to develop a sectarian school.5
Appellant and the Majority defend the vastly below-market-value transfer of land to the Hope Partnership by focusing on its inclusion in a broader redevelopment plan. I disagree that providing direct aid to a religious school as part of a redevel-
I also note my disagreement with the Majority‘s discussion of viewpoint discrimination. The Majority argues that to bar the Hope Partnership from participating in the redevelopment of a blighted area where all other entities are permitted to participate, solely on the basis of the Partnership‘s religious views, would likely constitute viewpoint discrimination. Majority Opinion at 252-53, 938 A.2d at 348, citing Good News Club v. Milford Central School, 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001) and Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). Although the Majority does not develop the basis for its position, it apparently believes that requiring fair market value from a religious organization, where such is not required from nonreligious parties, amounts to an unconstitutional discrimination on speech on the basis of viewpoint. See Good News Club, 533 U.S. at 106-107, 121 S.Ct. 2093; Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510. I respectfully, but resolutely reject this as sophistry. Rosenberger and Good News Club involve, respectively, forums for public expression such as school facilities that are opened for after-school activities or for use by non-government organizations; or government-funded subsidies for student publications. In such cases, a sectarian/religious activity or publication cannot, consistent with the Free Speech clause of the First Amendment,
This reasoning is irrelevant, however, in a situation where there is no forum for speech. In Locke v. Davey, 540 U.S. 712, 124 S.Ct. 1307, 158 L.Ed. 2d 1 (2004), the Court refused to strike down a state constitutional prohibition barring the grant of state scholarship aid to students majoring in devotional theology, rejecting the argument that such a ban was viewpoint discrimination. The Court reasoned that the scholarship program is not a form for speech, and its purpose, to assist students from low and middle income families with the cost of postsecondary education, was not “to encourage a diversity of views from private speakers.” In so concluding, the Court pointedly distinguished cases dealing with speech forums as inapposite. Similarly, the Urban Redevelopment Law is not a forum for speech; its purpose, to eliminate blight, is not to encourage a diversity of views from private speakers. Viewpoint discrimination is not implicated where the issue does not implicate access to a forum for speech. To find, as the majority suggests, that withholding public funds from a religious school amounts to viewpoint discrimination would create an inherent conflict between the First Amendment‘s establishment and expression aspects, causing the government to choose which aspect to vindicate, and which to violate, a result that finds no support in any legal authority. Accordingly, it is no answer to the foregoing Lemon analysis to suggest that it leads to unconstitutional viewpoint discrimination.
For all the stated reasons, I strongly dissent to what I view as an unfortunate decision by this Court.