A decision in April by the Culpeper County Board of Supervisors has created consequences at the federal level.
Percolating for several months, the board’s denial of a pump and haul request by the Islamic Center of Culpeper (ICC) last spring has resulted in a 12-page civil action lawsuit: The United States of America, as Plaintiff, versus the County of Culpeper as Defendant.
The suit was filed Monday, Dec. 12.
At the heart of the complaint is that the county’s action resulted in a “discriminatory denial of a sewage permit to an Islamic congregation that has presented it from building a mosque on land it has purchased from the County.”
The suit alleges that the board’s decision violates the Religious Land Use and Institutionalized Practices Act (RLUIPA) imposing a substantial burden on the ICC’s religious exercise. The suit further alleges the County treated the ICC and its application for a pump and haul permit differently from other applicants on the basis of religion or religious denomination.
In a county press release, dated Dec. 13, those allegations are denied.
“The issue regarding a permit for a permanent pump and haul of excrement is a health issue – not a religious one. There presently is no bar to the Islamic Center of Culpeper using its property for religious gathering.”
The suit states that the Islamic Center of Culpeper is a non-profit Muslim organization incorporated and existing under Virginia Law. The ICC is a “religious assembly or institution,” as defined by RLUIPA.
The suit alleges that since 2011, the ICC has been searching to find a permanent facility to conduct its worship services.
In January 2016, the ICC entered into a purchase contract to buy one acre at 14434 Rixeyville Road. It was deemed affordable and located centrally in the county. According to the suit, the ICC purchased the property in April for $15,000.
The ICC’s director, Mohammad Nawabe, had contacted the county’s planning and zoning department which then led to discussions with the county’s health department where Mr. Nawabe learned that the soil would not support a traditional septic tank and drainfield and that he would need to apply for a pump and haul request.
The suit alleges that in February, select members of the board were contacted by residents voicing their concern over the pump and haul request.
Back in April
When the board met in April, many of those concerned attended the meeting.
The first item under general county business was for the board to consider a request by the Islamic Center of Culpeper for a pump and haul permit on a parcel of land, about an acre, located on Route 229 at 14434 Rixeyville Road.
Planning Director John Egertson reported that all was in order with the application. He also stated that the applicant had a contract on the property but that it hadn’t gone to closing. The property in question has an uninhabitable structure. Egertson said that he and his staff had met with the applicant who intended to demolish the building and construct a prayer center where they planned to meet perhaps twice per week for a couple of hours. Egertson also said that a pump and haul request was not subject to a public hearing.
Supervisor Bill Chase quickly broached the subject.
“I’m dead set against this,” he said emphasizing that his decision was not based on religion but on use. Chase felt that these types of requests were for emergency situations which this was not.
Chairman Alexa Fritz said later that she had received many unsettling phone calls and was particularly disturbed when a sign appeared in her district painted in red clearly against approval and seemingly against her in particular.
Supervisor Sue Hansohn said that she had also received many emails and calls.
“We are supposed to support rules and regulations…we have in the past passed some applications and renewed when they have run out…our policy doesn’t give us the right to turn someone down because of religion,” said Hansohn who believed they couldn’t change the way they operate midstream. She was in favor of sending the pump and haul policy back to the rules committee for further review.
Supervisor Jack Frazier said they had been faced with a challenging decision.
For him, it got back to the hardship situation. “If there is a situation where there is no other alternative, I see that, but in this case there is not a hardship…they’re buying this property at a cheap price and stand to enhance their situation by doing this. They can walk away from this property and look to another [that doesn’t have these issues].”
“I cannot support, it’s not about who but about what,” said Frazier.
With the majority against approving the request, it died with a vote of 4-3. Those voting in favor were Brad Rosenberg, Sue Hansohn and Alexa Fritz. Those against were Steve Walker, Gary Deal, Bill Chase and Jack Frazier.
The suit, which reportedly reached the media even before members of the board, declares that the County is in violation of RLUIPA. It claims that a substantial burden has been placed on the religious exercise of ICC and that they have been discriminated against on the basis of religion.
It requires that the County “take such actions as may be necessary to restore, as nearly as practicable, the ICC and its members to the position they would have been in but for the Defendant’s unlawful conduct, including but not limited to granting such approvals as are necessary to allow the ICC to use the Subject Property as a place of worship.”
The suit further suggests that the County provide RLUIPA training to its personnel to avoid the recurrence of such unlawful conduct.
While the property in question has been determined not to be suitable for a traditional septic system and drainfield, the county has reached out to area companies and there are other alternatives on the market that could be explored.
One of the assertions by the County is that the applicant failed to provide any information regarding the exploration of readily available alternative sewage systems to address sewage disposal rather than pump and haul.
The County contends that even with a denial for the request to permanently pump and haul excrement from the site, the ICC could have secured and can still secure a temporary permit from the local Health Department at any time while it explores the preferred waste management methods (alternative systems) under the Code of Virginia.
The County believes the recent lawsuit filed by the Department of Justice against the County is ill-informed and meritless. The County intends vigorously to defend its actions.
A letter was sent on December 7 from the county in response to correspondence received from the Department of Justice in mid-November. While it was sent prior to learning that the Department of Justice intended to go ahead with their lawsuit, it details their decisions. You can find in in Views, on page 20.
Anita Sherman may be reached at firstname.lastname@example.org