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Arlington affordable housing dispute morphs into test of church-state separation

By Lisa Rein
Washington Post Staff Writer
Sunday, March 21, 2010; A01

The First Baptist Church of Clarendon, its pews emptying, needed cash. Arlington County, its red-hot 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.

The county board then amended its zoning ordinance. Neighbors sued again to block the project but lost before Glassman filed suit in November.

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 county-commissioned 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."

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