Monday, March 22, 2010
Zoning Battle Escalates to First Amendment Test
In 2003 the First Baptist Church of Clarendon in Arlington, Virginia determined that it needed to renovate or rebuild its church building. However, the Church could not finance a renovation or new building and therefore devised a plan by which it would finance the building with public funds. According to the suit, “the Church decided to make the provision of affordable housing part of its religious mission, and it proposed a plan to develop a new Church facility.” One year later, the plan was approved by the county and construction commenced in December 2009. County residents have attempted to sue to stop construction on the basis of zoning and “intrusiveness,” but have failed. Thus, instead, county resident and financial adviser Peter Glassman is suing the church, the county, and the state in federal court on the basis of the Establishment Clause of the First Amendment of the United States Constitution.
The suit states that the affordable housing provision was not the main purpose of rebuilding the Church, which is evident in the time line of events that took place between 2003 and 2004. Plaintiffs also state that “this case represents a remarkable example of state actor taking unprecedented steps to promote, sponsor and fund the demolition, rebuilding and renovation of a Baptist Church with taxpayer money.” In other words, there is excessive entanglement between church and state. Furthermore, Plaintiffs argue that this case is quintessential violation of the Establishment Clause. The diagram of the new Church shows that the physical layout of the renovated building reflects an obvious religious overtone. The suit states that “the building lobby and entrance will be within the Church portion of the property, and will be shared with the Church. The housing units will share with the Church a common foundation, common elevator, and other common infrastructure such as piping and walls.” Residents of the subsidized housing will be subject daily to the Church’s message.
However, as the author of this article from the Washington Post points out, this is a difficult case to prove. In order to prove that this is a violation of the First Amendment Establishment Clause, Plaintiffs must prove that the project fails the Lemon Test, which states that its purpose cannot be religious, it neither advances nor inhibits religion (has no religious effect), or does not create excessive entanglement between the state and the Church.
So, does the Church project pass the Lemon Test?
Although it seems that there is certainly a religious purpose, the County argues that there is a clear secular purpose of creating affordable housing. However, I agree with the Plaintiffs. The original purpose of the project was the rebuilding of the Church and even though that purpose has expanded to include affordable housing, which is certainly secular, I still believe that the religious purpose is the dominating one. On whether the project has a religious effect, I think that it depends. If the space shared by the Church and apartment dwellers contains religious paraphernalia, then there may be an advancement of religion. If this is not the case, then the advancement of religion is a stretch.
Even if I agreed with the County and the Church on the first to accounts of the Lemon Test, the Church project absolutely violates the last part of the test: excessive entanglement. First, “the County granted unprecedented zoning variances to benefit the Church,” which were actually in violation of Arlington’s own zoning ordinances. Second, tax payers’ money was ultimately used for the rebuilding and renovation of the Church.
I will be surprised if the U.S. District Court of Alexandria sides with the County and dismisses the case pending the hearing on the 2nd of April. However, at this point, construction has already begun and a separate non-profit organization, the Views at Clarendon, has been set up to see the development through and manage the apartments thereafter. The affordable housing is needed in Arlington County due to recent incline in real estate prices. Thus, should the renovations simply continue, creating the promised seventy affordable housing units despite the Constitutional violation?
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