Posted by Jill Norcross on March 29, 2010 at 19:34:18:
Arlington Affordable Housing Dispute Morphs into Test of
Church-State Separation
Lisa Rein
The Washington Post
March 21, 2010
The First Baptist Church of Clarendon, its pews emptying, needed cash. Arlington County, its redhot
Metrorail corridor pushing up real estate prices, needed affordable housing.
So the church and the County Board agreed to an unusual redevelopment of prime land one block
from the Clarendon Metro station. The church would sell the air rights over its sanctuary. A
developer, with the help of government subsidies, would build a new sanctuary with eight floors of
apartments on top, most dedicated to affordable housing. And the church's historic steeple would
survive.
Neighbors in well-to-do Lyon Village were not impressed. They sued twice to stop construction,
calling the building intrusive. Now they've turned their zoning battle into a fight over the First
Amendment.
Clarendon resident Peter Glassman is suing the church, the county and Virginia in federal court,
saying the development violates the constitutional separation of church and state.
Glassman, a financial adviser who lives near the church, says the $48 million in county and state
loans and federal tax credits that are paying for the redevelopment enrich the church. The county
took "unprecedented steps to promote, sponsor and fund the demolition, rebuilding and renovation
of a Baptist Church with taxpayer money," his lawsuit says. The county contributed $13 million in
low-interest loans.
On April 2, a judge in U.S. District Court in Alexandria will hear the county's motion to dismiss the
case. An earlier ruling has allowed construction to proceed. Interior demolition began in December,
and the church has moved to temporary quarters in Rosslyn.
The disagreement
Glassman's complaint alleges that the subsidy per unit -- $660,000 -- is excessive and proves that the
county wanted to bail out the church. In court papers, county attorneys call the claims a "tangled
web of allegations." The county says that its portion of the subsidy is $186,500 an apartment and
that a separate nonprofit group, the Views at Clarendon, will develop and manage the apartments.
Three church members serve on the nonprofit group's seven-member board.
The county also disputes that the church received more than the fair market value when the
nonprofit group paid $5.6 million for a portion of the property, including the air rights, last year.
Integrating a church sanctuary with condominiums or offices is just beginning to happen in many
communities, but a factor in the Clarendon lawsuit is how the church is incorporated into the new
development's design. The church and the housing above it will share an entrance, a lobby, an
elevator and other elements.
Residents will literally pass through the church's property, overlook the church's steeple and be
subject daily to the church's message," the suit says. It's the third legal challenge in the six-year
history of the contentious project.
Like many older congregations, First Baptist's membership had dwindled as busy immigrants moved
into the area and older parishioners moved out. Church leaders realized that they could tap the
equity in the property, valued at $10 million after rezoning to allow apartments, to finance
construction of a smaller sanctuary and other improvements.
In 2004, the county approved the plan, which included 46 market-rate and 70 affordable apartments
with starting rents of about $1,000, a sanctuary, a renovated church education center and three to
four stories of underground parking.
Residents concerned that a 10-story building would come too close to single-family homes filed suit,
and the case went to the Virginia Supreme Court, which ruled in 2006 that the county skipped a step
in the rezoning process.
Difficult case to prove
To prove a violation of the First Amendment's establishment clause, legal experts said it must be
shown that the county's approval of the project had a religious purpose, that the project primarily
advances religion or that it fosters excessive government entanglement with religion.
"The fact that the county has thrown a lifeline to the church at a time when the membership is in
sharp decline -- that's the single biggest constitutional issue," said Barry Lynn, director of Americans
United for Separation of Church and State, calling the project a "secular salvation" for the church.
But it will be difficult to prove that the "whole purpose" of the rezoning was to enrich the church
rather than build affordable housing, said Sen. Jamie B. Raskin (D-Montgomery), a professor of
constitutional law at American University.
"There's clear, secular purpose to promoting affordable housing," he said.
Arlington County Board Chairman Jay Fisette (D) said the county is pursuing more deals like this in
its push to build more affordable housing. "Every square foot of Arlington is at risk of being
unaffordable."
Jerry Morris, a church trustee and a director of the Views, said the constitutional questions are
masking opponents' real beef with the renovation: They don't want to live near affordable housing.
"This project has been vetted since 2004," he said. "There were no behind-the-door deals, no secret
handshakes. It was all done in public." The church is contributing $500,000 toward the project, he
said.
Glassman and his supporters say they support affordable housing. But they argue that affordable
housing did not become a mission for First Baptist until it became a lifeline.
"A lot of people who are in favor of affordable housing are also people who think the government
shouldn't be entangled with religion," said Joseph Hall, who lives five blocks away.
Glassman said that he opposes the project "on multiple fronts" but that "from Day One, my issue
was, how can they build this building with our tax dollars?" With Arlington facing the same financial
pressures as most local governments, the money should have been spent on schools and other
services, he said.
Former Arlington board member Paul Ferguson cast the lone vote against the deal because he
thought that rezoning the property to allow the apartments failed the church-state test. A countycommissioned
appraisal in 2004 estimated the added value at $9 million, although Assistant County
Attorney Carol McCoskrie said last week that the figure is "substantially" smaller because the
appraisal before the rezoning was too low.
Ferguson, a lawyer who is now clerk of Arlington Circuit Court, said he supports affordable
housing. Nonetheless, "it was definitely an upzoning that created value for the church in order to
create affordable housing, which, in my opinion, we would not have done for another application