Establishment of Religion or Affordable Housing Incentive? Glassman v Arlington County


After a six-year legal battle, Arlington County, Virginia may have finally prevailed in its plan to create affordable housing one block from the Clarendon Metro station. See official County statement here (see article for link). Washington Post story on the decision is here (see article for link).

Previous legal battles over this project had included zoning challenges that resulted in a 2006 Virginia Supreme Court decision which resulted in an amendment of the zoning ordinance provision in question and a subsequent unsuccessful legal challenge, which ended when the Virginia Supreme court refused to hear the case.

In an opinion issued December 23, 2010, the Fourth Circuit Court of Appeals has upheld the federal District Court for the Eastern District of Virginia, which held that Arlington County’s approvals, loans and plan to create affordable housing in a metro corridor was not subterfuge for establishment of religion in violation of the First Amendment.

Ironically, the First Baptist Church of Clarendon – owner of the real estate and an essential player in the deal – prevailed as well, just two days before Christmas. The church, which had a shrinking congregation and a resulting financial crisis, gained cash flow, a new sanctuary and potentially new congregants by selling its air rights to a developer. And its historic steeple will survive.

The Court applied the familiar “Lemon Test” in determining whether the County’s actions had the primary effect of advancing religion or lacked a secular purpose...

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