Church and Housing Provider Vindicated in Clarendon Case

A church's involvement in affordable housing subsidies by the state doesn't violate the Constitution. So says another court in the ongoing battle at The Views at Clarendon, which has cleared yet another legal hurdle in its battle to build an apartment building heavily subsidized by the government in place of the First Baptist Church of Clarendon. The U.S. Court of Appeals for the Fourth Circuit this week upheld a ruling, issued last May, that found that Arlington did not violate the state or U.S. constitutions by subsidizing the church-led project.

The struggle may finally wrap up 5 years of lawsuits 7 years after the Church hired the Arlington Partnership for Affordable Housing (APAH) to advise on an affordable housing project. The Church later sold the land to The Views at Clarendon Corporation, a non-profit, for $5.6m, with plans to build 46 market-rate and 70 affordable apartments. The Church retained 3 of 7 seats on the board, and will retain two floors within the new structure and a small building on the side. That lead to a neighbor arguing in Peter Glassman v. Arlington County, et. al that the subsidy amounted to unconstitutional support to a church, an argument that has been repeatedly rejected by both state and federal courts.

The news is a relief for the housing provider, not least because it began construction on the project last January (tearing down) and has just now begun building the 10-story structure, and the courts have refused to enjoin construction. While the case could be appealed - back to the same appellate court or to the U.S. Supreme Court - "further appeals are unlikely to be successful" says Raighne Delaney, an attorney Shareholder with Bean, Kinney & Korman, a law firm representing the non-profit. With plaintiffs having exhausted all automatic appeals, further appeals would be heard only at the discretion of the court.

"The county got a great bargain here," said Delaney. The nature of the bargain was a $13.1m loan the county gave to the developer, for which it got 70 subsidized apartments, with the feds kicking in a $14.5m loan and $20m grant for the project thanks to the American Recovery and Reinvestment Act. "Constitutionally, the only thing that mattered here was what the church got out of it. Even if it was a bad deal, the government is allowed to make bad deals," said Delaney, who stressed that the transaction is unbeatable for the county. Delaney said the real test is not whether the state is doing business with the church, but whether there is any "excessive entanglement" with the church. "The answer to that really is no. The state is not disallowed from doing business with the church, prohibiting regular business with the church would be a sort of anti-religious bigotry, and that's not allowed either."

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