Board responds to DOJ litigation

Editor’s Note: This letter was sent December 7, 2016 to Onjil McEachin, Trial Attorney with Housing and Civil Enforcement Section, Civil Rights Division, United States Department of Justice. On December 12, 2016, the federal civil suit was filed in the United States District Court Western District of Virginia.

 

Dear Ms. McEachin:

I write to you on behalf of Culpeper County (the “County”) in response to the letter dated Nov. 10, 2016, postmarked November 14, 2016, and signed by Sameena Shina Majeed. The County is dismayed by this letter. The County has cooperated fully with the Department of Justice (DOJ) and is disappointed that the Principal Deputy Assistant Attorney General for the Civil Rights Division has authorized the filing of litigation against the County. This situation does not warrant federal intervention or litigation.

The County requests that DOJ thoroughly review the voluminous records which the County has voluntarily provided, and reconsider its position. The County has acted in good faith and in complete compliance with all federal, state and local laws. The DOJ has not provided a report or analysis of its findings to the County, or engaged in substantive dialogue through legal counsel concerning its findings. DOJ has a public obligation to be forthcoming, and not just threaten.

  1. No Violation of RLUIPA

 

Absolutely no law or fact supports a complaint alleging that the County implemented a land use regulation that imposed a substantial burden on religious exercise or that discriminates against the Islamic Center of Culpeper (ICC) on the basis of religion or religious denomination in violation of the Religious Land Use and Institutionalized Practices Act (RLUIPA). The County feels strongly that the instant facts do not fall within the purview of RLUIPA.

The County has implemented no land use regulation that imposes any burden,much less a substantial burden, on any religious exercise or a regulation that discriminates against religious entities on the basis of religion or religious denomination. Yet land use regulation is the focus of RLUIPA, not the handling of sewage. See 42 U.S.C. § 2000cc.

Importantly, as I have previously advised, the County Zoning Ordinance provides that, in each and every of its zoning districts, religious institutions, places of worship, and other ancillary uses normally associated with congregational worship, such as churches, parish houses, rectories, parsonages, seminaries, and Sunday schools, are (with emphasis) a by-right use. Further, there are no County zoning regulations or land use limitations applicable to religious institutions places of worship, and other ancillary uses.

The permit application in the instant case concerns a request of the ICC to haul feces (sewage waste) away from the subject-site and about the County. This process is known as “pump and haul.” It involves storing the excrement on site, picking it up potentially months later, and carrying it to another site for disposal. This issue concerns a quintessential health matter, management and disposal of excrement, and not the use of the land as or by a religious entity. Moreover, the County’s action does not prevent the ICC from locating to the site. Thus, the County imposed no burden on the ICC’s ability to engage in religious exercise.

The ICC’s application earlier this year to the County Board of Supervisors (the “Board”) sought a permanent permit to dispose of excrement by hauling it away from the site and upon the roads of the County. The ICC did not investigate or explore any of the preferred methods of disposal of the feces, as expressed under Virginia law. The County’s local Zoning Ordinance and land use regulations simply do not apply. Rather the laws of the Commonwealth of Virginia and the regulations of the Virginia Department of Health apply.

When presented with the issue, the Board engaged in full and fair reflection concerning the matter of waste management. Several factors were considered attendant to the review of the application as to the pump and haul/sewage waste management permit, including but not limited to:

-the failure of the applicant to provide appropriate or any current information regarding the ability of the site to maintain a traditional sewage system; and

-the failure of the applicant to provide any information regarding the exploration of readily available alternative sewage systems to address sewage disposal rather than by pump and haul.

Due to the missing information, the Board reasonably denied the request to permanently pump and haul excrement from the site. Even upon this denial, the ICC could have secured and can still secure a temporary permit from the local Health Department at any time, while it explored the preferred waste management methods (alternative systems) under the Code of Virginia.

The ICC should have explored alternative systems before petitioning the Board. Where a site cannot support a traditional drain field and/or septic system, many alternative methods are readily available to treat the feces on site in an environmentally sound manner. These methods are akin to a mini-sewage treatment plant and offer a more efficient and sanitary solution than the pump and haul approach.

The Virginia Administrative Code (VAC), which governs human waste removal, provides that pump and haul should be an unusual circumstance. Moreover, pumping and hauling on a permanent basis (for over one year) is prohibited by Virginia law unless done under the auspices and supervision of a government entity. These restrictions are not surprising given that the pumping and hauling of waste can result in contamination not only on the site from which the feces are pumped and the one into which they are pumped but also dripping along roadways and other property during transport.

II. Same factors considered in reviewing previous applications

 

Review of every previous determination of the applications and the records attendant thereto for a pump and haul permit reveals that in all 23 previous applications, the same lawful and appropriate factors were considered by the Board, just as in the case of the ICC. Those factors include, but are not limited to:

  1. Was the request attendant to an existing structure whereby an emergency of a failing traditional septic system (i.e. in ground field) prompted the request?
  2. Was the request temporary in nature and limited to a term certain?
  3. Was the proposed site to be serve within the water sewer master plan such that it was reasonably contemplated that one day it would be served by public water and sewer or other sewer treatment plant?
  4. Was alternative systems (which properly disposed of the sewage onsite) explored and exhausted by the applicant, etc.?

It is clear that these factors are not land use considerations as contemplated by RLUIPA. They are health issues.

Even if the pump and haul permit were under the purview of RLUIPA, there is no singling out of the ICC on the basis of religion. Many of the prior applications involved the Brandy Station area which is an area located in the general vicinity of the airport and/or other areas slated for extension of public water and sewer facilities. (A map was provided to you of this contemplated service area). By contrast, the ICC application was for a site in an area that is not currently slated for public water and sewer services. This is very important because, as the VAC notes, pump and haul is intended to be temporary. To date, the ICC has provided no information to the County indicating that the pump and haul operation is intended to be temporary.

Further, only one church was previously permitted for pump and haul when no structure was existing on the site. In that instance the Health Department supported the application because the structure was to be built near the Town water supply. Unlike that application, the ICC wants to demolish the structure and rebuild from scratch without seeking Health Department assistance or support.

In addition, this Board has spent time studying its responsibilities under its VAC general permit which allows it to grant pump and haul permits. The Board has become increasingly concerned about its legal obligation to supervise the pumping and hauling. It has concluded that it needs to revise its regulations in order to make clear its expectations of permittees and to capture in writing the expectations it has of applicants in reviewing their applications. That process is ongoing and a report will be made to the Board within the month. Granting a vacant property a permit permanently to conduct a pumping and hauling operation after building a new structure while the Board is in the midst of revising its regulations does not make any sense. Consequently, the Board acted properly in denying the application.

Finally, the ICC is not precluded from filing for a new application for a pump and haul permit. Importantly, it is not precluded from using alternative septic systems or consulting with the Health Department on whether a traditional septic system can be utilized.

III. DOJ should reconsider

 

As noted, the County acted in good faith, and provided complete and thorough timely responses to the DOJ. The County furnished over 1000 pages of responsive documents and other information. At DOJ’s request, the County Administrator and the Planning/Zoning Director met with the DOJ and cooperated in extensive interviews. In addition, each and every member of the Board agreed to meet with the DOJ and be interviewed. The DOJ elected to interview a majority of the Board members and these interviews were conducted by two DOJ attorneys, including a federal prosecutor. The Board’s willingness to aid the DOJ with its investigation is itself precedential.

The lack of any DOJ report, the absence of the release of any specific findings, and the absence of any substantive dialogue through counsel as to the identified concerns of law and fact are very troubling. These omissions on a matter that DOJ indicates is so important suggest that DOJ is proceeding rashly and precipitously.

We, therefore, ask that DOJ reconsider filing suit. DOJ can certainly follow the County’s current efforts to improve its processes with respect to pump and haul permits, which may include removing itself from such an approval role. Certainly, the DOJ has many more intractable issue to handle. However, please be advised that, if DOJ proceeds with litigation, the County will vigorously defend its actions.

I am available to discuss these matters with you, please do not hesitate to contact me at the above address or via email at bjalexis@culpepercounty.gov. Thank you for your time and consideration. I remain

Very truly yours,

 

Bobbi Jo Alexis

County Attorney