Guest Post by Derek Valentine

Earlier this month, the U.S. Justice Department (“DOJ”) filed suit in District Court for the Western District of Virginia against the Culpeper County Virginia Board of Supervisors alleging it acted in a discriminatory manor by denying a permanent pump and haul septic system permit for a proposed mosque.

The Islamic Center of Culpeper (ICC) is a non-profit Muslim center that began its formal search for a permanent mosque location in 2011. In January of 2016, the ICC located a property that met its qualifications and entered into a purchase contract. The one-acre property included a dilapidated structure that would be razed to make way for a small mosque to serve the ICC’s needs for the next ten years. The new facility would accommodate separate prayer rooms for male and female congregants, classrooms for Arabic language studies, and a proper space to allow congregants to perform a pre-prayer ritual requiring the washing of hands and feet.

After entering into the purchase contract, Mohammed Nawabe, ICC’s Director, contacted the County Administrator to initiate construction approvals. The property is located in a zoning district that allows religious land uses by right, but the County Administrator recommended that Mr. Nawabe contact the health department regarding soil conditions and the ability to accommodate an on-site septic system. Mr. Nawabe was subsequently informed by the health department that the property would not support a traditional septic system and instead would have to rely on a permanent pump and haul system, requiring approval from the County. A permanent pump and haul system is out of the ordinary and is required where there is no public sewer service and soil conditions do not allow a conventional on-site septic system.  Instead, the sewage must be retained in a tank and periodically hauled away by truck.  Under Virginia  law this requires a special permit from the state, and in this case the county holds the only permit in the county and thus must approve such systems to be added to its permit.

The ICC submitted an application for pump and haul approval but, according to the complaint, was met with considerable interference from a local civic leader. At one point, ICC’s application was pulled from a meeting agenda and was deferred to the County Attorney for additional review. Mr. Nawabe then met with the County Planning Director and was told he needed to reapply with an updated County pump and haul agreement because he mistakenly was given an outdated copy.

The ICC’s application was resubmitted on March 3, 2016, and scheduled for County Board consideration on April 5, 2016. The DOJ claims that in the intervening time between the submission and the scheduled Board action date, the County received a barrage of emails and phone calls from constituents urging denial of the application. Many of the comments relayed anti-Muslin sentiments. The County Administrator informed the County Board Chairwoman that the ICC application should be reviewed consistent with the established criteria and level of scrutiny applied to all other applications. The Administrator stated that he would be prepared to invalidate any irrelevant constituent concerns at the scheduled Board meeting.

At the April 5th meeting, the County Administrator shared prepared comments indicating that the ICC had “provided letters from the health department “saying that the soil just wouldn’t support what they would consider a traditional type of drain field, and no other alternative was identified.” After some discussion from County Supervisors, the application was denied on a 4-to-3 vote. According to the complaint, of the 26 applications processed in the last 20 years this was only the second denial  . The County Supervisors who voted against the application argued that ICC did not show hardship and that pump and haul permits were for emergency use only and not intended for commercial or church use. These Supervisors also denied the hardship claim because ICC did not own the property at the time of the application and there was no existing structure on the property. Furthermore, they alleged that ICC purchased the property at a below market price because of the preexisting poor soil conditions and inferred that any hardship would be deemed self-inflicted. However, the DOJ concluded that permits were issued to other parties under very similar circumstances, including one to a Baptist church.

The DOJ alleges that the County has used the permit process to allow land uses it finds desirable while excluding unwanted land uses. The allegations state that the County’s denial constituted “a substantial burden on ICC’s freedom to practice their religion” and that ICC’s permit was treated substantially differently than similar permit applications. The  complaint requests injunctive relief requiring the County to issue the permits necessary for ICC to construct the mosque and requiring the County to provide RLUIPA training, establish a protocol to address future RLUIPA claims, and maintain records/reports with respect to RLUIPA compliance.

The complaint in United States of America v. County of Culpeper, VA is available here.

Original Photograph by Laura Gilmore, some rights reserved.

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Photo of Karla Chaffee Karla Chaffee

Karla L. Chaffee is a member of Robinson+Cole’s Real Estate + Development Group and is based in the Boston office, focusing on a variety of land use and environmental matters. Karla’s interest in RLUIPA began in law school when she co-authored, “Six

Karla L. Chaffee is a member of Robinson+Cole’s Real Estate + Development Group and is based in the Boston office, focusing on a variety of land use and environmental matters. Karla’s interest in RLUIPA began in law school when she co-authored, “Six Fact Patterns of Substantial Burden in RLUIPA: Lessons for Potential Litigants,” (with Dwight Merriam) published in Albany Government Law Review (Spring 2009). Karla has continued to write and speak on RLUIPA and has represented clients in several federal proceedings, including RLUIPA, First Amendment, and Equal Protection claims. In addition to her RLUIPA practice, Karla has litigated complex environmental matters, defending claims under Massachusetts Chapter 21E. Karla’s transactional experience includes pre-acquisition and pre-financing due diligence, environmental risk assessment and risk mitigation. She also represents clients seeking local zoning approvals and counsels them on the impact of proposed or recently enacted land use legislation, as well as on land use trends across the country.

Karla is also a proud member of Robinson+Cole’s Pro Bono Committee and is dedicated to maintaining pro bono work as part of her practice. Her pro bono clients include individuals and families seeking asylum in the United States. She has also represented nonprofit organizations in obtaining tax-exempt status and has served as legal counsel in a zoning appeal for a nonprofit association created to support and protect a national park.

Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

Photo of John Peloso John Peloso

John Peloso, a partner in the firm’s Real Estate Litigation Group, is a trial lawyer who represents companies, municipalities, and individuals in a wide range of matters. At the administrative, trial, and appellate levels, John counsels clients and litigates real property disputes, including…

John Peloso, a partner in the firm’s Real Estate Litigation Group, is a trial lawyer who represents companies, municipalities, and individuals in a wide range of matters. At the administrative, trial, and appellate levels, John counsels clients and litigates real property disputes, including real estate, land use, environmental, and tax matters, including RLUIPA and eminent domain matters.

In the area of real estate litigation, John represents institutional, municipal, and individual clients in disputes involving title, zoning, wetlands, land use, RLUIPA, eminent domain, and other real property rights. He also represents clients in all aspects of commercial lease and other real estate transactional disputes. In the area of real property tax litigation, he represents institutional and individual clients in proceedings at the regulatory, administrative, and trial levels. In this regard, he has dealt with specialized issues involving among other things, the valuation of high-tech software, wireless communications equipment, contingency fee tax audits, special use properties, and the impact of environmental conditions on the valuation of real property.

Prior to joining Robinson+Cole, John was a member of the litigation department at White & Case LLP in New York City, where he concentrated his practice in complex commercial, property and securities litigation.