Glassman v. Arlington County, VA

• Citation: 628 F.3d 140
• Decision Date: 23 December 2010
• Docket Number: No. 10-1496,10-1496
• Parties: Peter GLASSMAN, Plaintiff-Appellant, v. ARLINGTON COUNTY, VIRGINIA; 1210 North Highland Street—Clarendon Limited Partnership; The Views at Clarendon Corporation, Incorporated; Virginia Housing Development Authority; Board of Supervisors of Arlington County, Virginia; First Baptist Church of Clarendon, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

628 F.3d 140

Peter GLASSMAN, Plaintiff-Appellant,

v.ARLINGTON COUNTY, VIRGINIA; 1210 North Highland Street—Clarendon Limited Partnership; The Views at Clarendon Corporation, Incorporated; Virginia Housing Development Authority; Board of Supervisors of Arlington County, Virginia; First Baptist Church of Clarendon, Defendants-Appellees.

No. 10-1496.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 22, 2010.

Decided: Dec. 23, 2010.

ARGUED: Andrew S. Oldham, Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC, Washington, D.C., for Appellant. James Patrick Taves, Greehan, Taves, Pandak & Stoner, PLLC, Chantilly, Virginia; Raighne Coleman Delaney, Bean, Kinney & Korman, PC, Arlington, Virginia, for Appellees. ON BRIEF: Stephen G. Cochran, Roeder, Cochran, Parrott, Chandler & Kinsel PLLC, McLean, Virginia; Joseph S. Hall, Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC, Washington, D.C., for Appellant. T. David Stoner, Greehan, Taves, Pandak & Stoner, PLLC, Chantilly, Virginia; Stephen A. MacIsaac, County Attorney, Carol W. McCoskrie, Assistant County Attorney, Arlington County Attorney's Office, Arlington, Virginia, for Appellees Arlington County, Virginia, and Board of Supervisors of Arlington County. H. Robert Showers, Timothy Paul Bosson, Simms Showers, LLP, Leesburg, Virginia, for Appellee First Baptist Church of Clarendon. Robert M. Tyler, Jeffrey D. McMahan, Jr., McGuirewoods LLP, Richmond, Virginia, for Appellee Virginia Housing Development Authority.

Before NIEMEYER and DUNCAN, Circuit Judges, and ROBERT J. CONRAD, JR., Chief United States District Judge for the Western District of North Carolina, sitting by designation.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge DUNCAN and Judge CONRAD joined.

OPINION

NIEMEYER, Circuit Judge:

In 2004, the First Baptist Church of Clarendon, in Arlington County, Virginia, proposed—and Arlington County approved—a plan to develop a parcel of land that the Church owned and on which the church building was located. Under the plan, the existing church building would be razed, and in its place a 10-story building would be erected, which would include a new church building and church facilities on the first two floors, and apartments on the upper eight floors, to include affordable units for low and moderate income people as well as market-rate units.

In furtherance of the plan, the Church conveyed the property to a private development corporation, and the development corporation thereafter created a two-unit condominium on the property, one for the Church and one for the apartments. The Church financed the construction of its portion of the building, and Arlington County and the federal government provided loans to finance construction of the apartments.

Peter Glassman, a taxpayer in Arlington County, who lives less than one block fromthe property, commenced this action under 42 U.S.C. § 1983 against Arlington County, the Commonwealth of Virginia, the First Baptist Church, and the developer, alleging that Arlington County's involvement in the development violates the Establishment Clause of the U.S. Constitution, as well as its counterpart in the Virginia Constitution. He seeks to enjoin completion of the project, which has already commenced, and to order rescission of the loan and restitution to Arlington County of all monies advanced by the County. In his complaint, Glassman alleges that the County's announced purpose of providing affordable housing in Arlington "has been used to mask what is really a subsidy from the County to support the building of the [new] Church, at the expense of the affordable housing cause." This is evidenced, he alleges, by the County's approval of above-market payments for the housing portion of the project, by the presence of both Church and County members on the developer's board, and by the physical layout of the building in which "[t]he housing units will share with the Church a common foundation, common elevator, and other common infrastructure." Glassman also alleges that the funding arrangement, administration, and building layout create an unconstitutional, excessive entanglement of the Church and the County.

The district court granted the defendants' motion to dismiss the complaint, concluding, in a thorough 24-page opinion, that the facts alleged in the complaint did not state a plausible claim upon which relief could be granted for a violation of the Establishment Clause. Having found no violation of the U.S. Constitution, the court also found no violation of the Virginia Constitution, which has been construed in "parallel" to the U.S. Constitution.

For the reasons that follow, we affirm.

I

Because we are reviewing the district court's order dismissing Glassman's complaint under Federal Rule of Civil Procedure 12(b)(6) and therefore are evaluating the complaint only for legal sufficiency, we take as true the facts alleged in the complaint in determining whether they support a plausible claim for relief. See Francis v. Giacomelli, 588 F.3d 186, 192-93 (4th Cir.2009).

Summarizing his complaint, Glassman states that he "has a substantial grievance concerning the County and State's financing of a Baptist Church building less than one block from his home." He alleges that (1) the nature of the relationship between and among the First Baptist Church, the developer, and the County in the development of this project; (2) the nature of the funding; and (3) the planned structure of the completed project support his claim that Arlington County has violated the Establishment Clause of the First Amendment and its counterpart in the Virginia Constitution.

The complaint then recites the transaction in some detail. In the 2003-04 period, the First Baptist Church decided to develop the property on which its church building was then located in order to rebuild the church building and to construct affordable housing. By including affordable housing in the plan for the project, the Church intended to take advantage of funding from Arlington County's "Affordable Housing Investment Fund"; funding by the Virginia Housing Development Authority; and tax credits from the federal government for low-income housing.

The plan called for razing the existing church building and constructing a new building, including a new sanctuary and church facilities, 70 affordable housingapartments, 46 market-rate apartments, and a parking garage for the apartment tenants. To implement the plan, the Church created a nonprofit corporation to serve as the developer of the project—the Views at Clarendon Corporation (the "Developer")—which had a seven-person board consisting of three members designated by the Church, one of whom was the president of the board, three "Affordable Housing Advocates," and one member appointed by Arlington County. The Developer in turn created a Virginia limited partnership—1210 North Highland Street, Clarendon Limited Partnership—to purchase the property from the Church and administer the funding. In forming the limited partnership, the Developer made itself the general partner and the limited partner. The 1210 N. Highland Partnership then created a two-unit condominium on the property, with one unit for the portion of the project to be occupied by the Church and the other for the housing portion of the project. All funding for the project was paid directly to the 1210 N. Highland Partnership.

The configuration of the physical structure of the building called for a three-story below-ground tenant parking garage and a ten-story above-ground building. The first two stories above ground, which had a footprint larger than the eight-story tower, were largely dedicated to Church use, including the sanctuary. The portion of the structure extending beyond the tower's footprint was designed to accommodate the Church's front entrance and a steeple. The eight-story tower was dedicated to housing and was comprised of 70 below market-rate apartments, to be rented as affordable housing for low and middle income persons, and 46 market-rate apartments. The tower lobby and elevator on the first floor were to be used in common by both church members and tenants.

The construction of the Church's portion of the structure, estimated to cost $5.8 million, was funded mostly by the $5.6 million proceeds of the Church's sale of the property to 1210 N. Highland Partnership. The construction of the housing portion of the project and parking garage was funded by a $13.1 million loan from Arlington County's Affordable Housing Investment Fund, a $14.5 million loan from the Virginia Housing Development Authority, and an $18.6 million loan funded by the federal government. The complaint does not allege that any money from these public sources was paid to the Church except for the $5.6 million for the purchase of the property.

The complaint asserts that Arlington County and the Virginia Housing Development Authority overvalued the apartments in making loans to the project and that this overvaluing was necessary to make the project work financially. It states that, as a consequence, the Church benefited, because the viability of the project enabled construction of a new church building. Based on this indirect benefit, the shared membership on the Developer's board, and the physical design of the building, Glassman asserts that the County's actions involved it in a constitutionally-prohibited relationship with the Church.

After briefing and argument, the district court, by an order dated April 12, 2010, granted the defendants' motion to dismiss. After examining all of the relationships between the parties, as well as the funding scheme and the physical structure, the court held that Glassman had failed to allege facts showing that he was entitled to relief for violation of the Establishment Clause or Virginia's counterpart. The court found: (1) "Despite an innuendo plaintiff tries to draw from such allegations, the facts alleged in the Amended...