dissenting.
I respectfully dissent. I agree with the majority's conclusion that the various provisions of the Indiana Constitution dealing with religion prevent the State from imposing material burdens on the exercise of religious practice. I agree that this protection extends beyond the private devotion vel non of individuals and also includes the public and group activities associated with religious practices. And I agree that City Chapel is an organization whose activities seem to fall well within those protections. Thus, I agree that it follows that the City of South Bend, an arm of government, may not exercise its right of eminent domain in such a way as to materially burden City Chapel's religious activities.
I disagree, however, that City Chapel has presented a claim that raises this issue. To quote from City Chapel's brief, which in turn quotes from its presentation to the trial court:
{If we have an evidentiary hearing, what [the trial court will hear is] not just that this is an interference, this taking will destroy City Chapel ... [The congregation] specifically wanted to be in the center of downtown, and specifically wanted to be in a visible site. ...we had some various attempts to see if we could find an alternate location. [There will *457be] testimony that there are almost no alternate locations for City Chapel either because of size or location, but most importantly because of price. There simply is no place else for them to go that we can find that they possibly can afford....
(Emphasis added.). There is no claim here that the site has an independent religious significance. Cf. Pillar of Fire v. Denver Urban Renewal Auth., 181 Colo. 411, 509 P.2d 1250, 1251-52 (1978) (sect sought to enjoin a municipal urban renewal agency from conderaning a building said to be birthplace of the Pillar of Fire denomi-pation). Rather, City Chapel's complaint is that its mission will be materially burdened because it cannot find a home consistent with its religious mission at a price it can afford. It seems to me that the Indiana Constitution has taken care of this problem. In addition to the provisions dealing with religious freedom, we also have Article I, Section 21, which provides that no person's property "shall be taken by law, without just compensation." In view of the provisions of the Indiana Constitution cited by the majority, "just compensation" for a site important to the free exercise of religion may require more than it otherwise would.
No case has addressed the issue under our state constitutional takings clause. In United States v. 564.54 Acres of Land, although the United States Supreme Court rejected the condemnee's claim in that case, the Court recognized that in very unusual cireumstances fair market value may not constitute "just compensation" under the federal takings clause. 441 U.S. 506, 512-18, 99 S.Ct. 1854, 60 L.Ed.2d 485 (1979) ("[When market value has been too difficult to find, or when its application would result in manifest injustice to owner or public, courts have fashioned and applied other standards." (citations omitted)). Although that case involved a taking of property from a religious organization, there was no claim that the free exercise of religion was burdened. Rather, the claim was that the state should pay the cost of developing a "functionally equivalent" substitute facility rather than fair market value because the condemned property was exempt under grandfather provisions from regulations that would impose significant costs on a new facility. Id. at 508, 99 S.Ct. 1854. This claim was rejected on the basis that the condemnee would reap a windfall if it chose not to construct the new facility (in that case a campground for children), id. at 515-16, 99 S.Ct. 1854, and in any event a new facility would place the condemnee in a better position than before the taking of the older facility, id. at 517-18, 99 S.Ct. 1854 (White, J., concurring).
Similarly, in State v. Lincoln Memory Gardens, Inc., 242 Ind. 206, 214, 177 N.E.2d 655, 659 (1961), this Court rejected the "principle of substitution" as a means of compensation in a case not implicating free exercise of religion. However, it is not entirely clear whether substitution means (1) replacement cost or (2) the amount necessary to put the condemnee in the' same position as before the taking. The two are not necessarily the same because the latter may be accomplished by giving the condemnee a replica of the condemned asset, but may also be achieved by providing a different asset of equivalent value. In any event, "just compensation" is demanded by our constitution. In the overwhelming majority of cases, fair market value will constitute "just compensation" to the conderanee. Ordinarily, a claim of unique value to the owner will not overcome that presumption. But where a taking is shown to infringe upon a "core value," I would conclude that "just compensation" under the Indiana Constitution requires placing the owner in a substantially equivalent position as before the taking.
Here, the contention is that City Chapel needs more than fair market value to place it in the same position as before the taking-an operator of a facility positioned to serve the constituency required by its reli*458gious mission. If the trier of fact at the valuation stage agrees, this would provide a basis for compensation above the amount the property would command in the hands of a secular owner. But in my view, City Chapel has not presented a claim that, if established, would stop the City's condemnation in its tracks. Rather, even assuming the Chapel can establish what it claims, money, not a permanent barrier to downtown redevelopment, is the cure.
If the City is willing to accept the risk that City Chapel can establish that it requires more than the fair market value of the property to permit City Chapel to replace the condemned facility in a location and manner that are necessary to its religious mission, that is the City's decision. Fair market value is usually defined as the price upon which the hypothetical willing buyer and willing seller can agree. Area Plan Comm'n v. Major, 720 N.E.2d 391, 398 (Ind.Ct.App.1999). But if this formula is inadequate to avoid a material burden on the Chapel's exercise of religion, the City may have to pay more to achieve "just compensation" than it would if it were condemning a secular site. Given the Chapel's representation that this is a dispute over money, not religious principle, even if the Chapel proves all it claims, the solution is in dollars, not injunctive relief. In short, I do not believe that the Chapel's claim presents anything to be heard as to the taking, although it may be highly relevant to fixing the "just compensation" owed to the Chapel.
I agree with Justice Sullivan that the threshold issue is whether City Chapel is entitled to a hearing at the taking stage of this eminent domain proceeding. However, it seems to me that whether a hearing is required is determined by the issues raised by City Chapel. If its claims, if proven, would constitute a bar to the taking, it seems to me that City Chapel is entitled to a hearing in which it has the opportunity to prove them, just as any landowner may present the facts that support any legally recognized defense to the taking. See Dohany v. Rogers, 281 U.S. 362, 869, 50 S.Ct. 299, 74 L.Ed. 904 (19830) ("[The] requirements [of due process] are satisfied if he has reasonable notice and reasonable opportunity to be heard and to present his claim or defense {[to the taking]."); Derloshon v. City of Fort Wayne ex rel. Dep't of Redevelopment, 250 Ind. 163, 171-72, 284 N.E.2d 269, 273-74 (1968) ("At some place in the [eminent domain] proceedings, and by some method the landowner is entitled to contest the legality of the conderonation proceedings, and question the authority under which the attempt is being made to take his property _...") (quoting Cemetery Co. v. Warren Sch. Township, 286 Ind. 171, 178, 1839 N.E.2d 538, 541 (1957) (citations omitted)).1 Because I do not believe City Chapel has presented a claim that bars the taking, I believe no hearing is required. But if such a claim had been raised, I would agree that City Chapel would be entitled to its day in court to present its proof.
Finally, I agree with Chief Justice Shepard that a "hybrid" claim requires at least something more than collective religious exercise to add a right of association to the religious exercise rights of the complainants. For the reasons given above, however, I disagree that under the state constitution a hearing is required on the taking as opposed to the compensation phase of the City's exercise of its right of eminent domain. *
. In Dohkany, the landowner challenged the taking under a statute that he claimed provided for a process that fell below federal due process requirements. 281 U.S. at 366-67, 50 S.Ct. 299. In Derloshkon, the landowner argued that he was denied due process when he was not given a hearing on his claim thai the taking was for a private rather than a public purpose. This Court reversed and directed the trial court to hold a hearing. 250 Ind. at 165-66, 175, 234 N.E.2d at 270, 276.