Foes of Arlington County affordable housing project lose challenge

By Lisa Rein
Washington Post Staff Writer
Wednesday, April 14, 2010

A U.S. District Court judge threw out a First Amendment challenge to an affordable housing project above a church in Arlington County on Monday, ruling that it does not violate the constitutional separation of church and state.

Judge Claude M. Hilton said Peter Glassman failed to prove that the county, by partnering with First Baptist Church of Clarendon to build apartments and enable the church to renovate, is advancing religion or enriching the church, as Glassman alleged.

"The actions of the county board . . . had a secular purpose of providing affordable housing to the citizens of Arlington County," the judge wrote in a 24-page opinion granting the county's motion to dismiss the case.

Glassman, a financial adviser who lives a block from the church, said Monday night that he plans to appeal the ruling to the Court of Appeals for the 4th Circuit. "We are confident that once the dealings between the county and the church see the light of day, the entanglement and preference will be apparent."

But county officials, church leaders and housing advocates said they hope Arlington can be a model for local governments that want to build affordable housing by joining forces with houses of worship.

"People with moderate incomes should have a right to live a block from the Metro," said Arlington County Board member Barbara A. Favola (D), who was chairman when the project was approved. "It doesn't happen without government intervention."

Bozzuto Development is building a new church sanctuary and child-development center with eight floors of apartments on top, most of them subsidized for low- and moderate-income renters.

The ruling is the latest chapter in a six-year legal battle over the Views at Clarendon, an unusual redevelopment that met the county's goals of increasing affordable housing and the church's need for cash to renovate its aging sanctuary. The church sold the air rights over its property at 1210 N. Highland St. for $5.6 million last year to a nonprofit group that is building the apartments with $48 million in county and state loans and federal tax credits.

But as soon as Arlington officials approved the deal in 2004, neighbors in Lyon Village sued to block construction on zoning grounds, calling the building intrusive. After the county amended its zoning ordinance and a second legal challenge failed, Glassman initiated his First Amendment fight.

In a complaint filed last November, he alleged that Arlington took "unprecedented steps" to fund the church renovation with taxpayer money, enriching a religious institution in violation of the First Amendment's establishment clause. He claimed that the subsidy for each apartment was excessive, that the church received more than market value for its air rights, that the shared lobby, entrance and other brick-and-mortar elements would, literally and figuratively, entangle the church and the subsidized housing. He claimed that the nonprofit board's domination by church members furthered the entanglement.

But Hilton concluded that Glassman "lacks factual allegations" to prove any of his claims. The county's $13.1 million loan "is expressly for the purpose of financing the affordable housing project," the judge wrote, concluding that the court "cannot glean . . . that [the church] has a goal of indoctrinating residents in the planned apartment building." He wrote that "the mere fact" that church members comprise a majority of the Views' board "does not transform The Views into a religious entity." Glassman also failed to prove that the church was "fraudulently" paid more than its property was worth, the judge said.

The project broke ground last fall after the court allowed construction to proceed. Site work is almost finished. The apartments are scheduled to open at the end of next year.

Supporters of the project said the constitutional questions raised by Glassman and other opponents were simply a strategy to oppose affordable housing.

"It's the same group of people who are not interested in having affordable housing in their neighborhood," said Jerry Morris, a church trustee and a director of the Views.

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