While I do not want to bog the blog down (did I really just write that?) with what can be mind numbing issues of constitutional law, I did want to highlight a decision yesterday made by a U.S. District Court judge for the Eastern District of Virginia. In his opinion, Judge Claude Hilton rejected a First Amendment challenge to an affordable housing project above a church in Arlington County, Virginia concluding that it does not violate the constitutional separation of church and state.

A close in suburb of Washington, D.C., Arlington County (like many suburban locales) faces a shortage of affordable housing. Real estate in Arlington has been at a premium for quite some time at any price and the property that has been available has commanded high end prices for homes, condominiums, and apartments.

In this case, the First Baptist Church of Clarendon partnered with Arlington County to construct affordable apartments and enable the church to raise money to renovate its property. The plaintiff alleged that his arrangement is advancing religion or enriching the church in violation of the Establishment Clause of the First Amendment to the Constitution.  

In disagreeing with the claim, the Court wrote that "[t]he actions of the county board . . . had a secular purpose of providing affordable housing to the citizens of Arlington County.” The plaintiff, who lives a block from the church, stated that he will appeal the ruling to the U.S. Court of Appeals for the Fourth Circuit. 

Arlington 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.  Here, the developer 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.

To be sure, this is an unusual redevelopment plan. The proposal was crafted to meet 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 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.

Shortly after Arlington officials approved the deal, some local residents sued to block construction on zoning grounds, calling the building intrusive.  Arlington County then amended its zoning ordinance and a second legal challenge failed. Next, the plaintiff initiated his First Amendment fight.

The complaint alleged 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.  The Court disagreed, holding that the plaintiff lacked “factual allegations" to prove any of his claims and that the county’s $13.1 million loan "is expressly for the purpose of financing the affordable housing project.” The plaintiff also failed to prove that the church was "fraudulently" paid more than its property was worth.

Supporters of the project said the constitutional questions raised in this case and by the other opponents were simply a strategy to block affordable housing in their neighborhoods.

The case is Glassman v. Arlington County, Virginia, et. al., Civil Action No. 01-09-cv-1249.

Does the plaintiff really believe there is an actionable First Amendment claim? Is this lawsuit an effort to prevent affordable housing from being constructed in the neighborhood? Should local officials work to add to the number of affordable housing units in an area that is perceived to need it? Should the opinions of the nearby residents matter?

Just A Thought.