The District Court for the Western District of Virginia denied Culpeper County, Virginia’s motion to dismiss a lawsuit brought by the U.S. Justice Department (“DOJ”).  The DOJ filed suit after the County denied a permanent pump and haul septic system permit for a mosque proposed by the Islamic Center of Culpeper (ICC). The Court’s decision is available here.

In the motion to dismiss, the County claimed that the case was not “ripe” because ICC’s application was insufficient to make a final decision, and it was incumbent upon ICC to submit a complete application. The County also argued that the decision to deny the pump and haul permit was not subject to RLUIPA because the County applied a public health law, not a land use regulation; the latter being an action protected under RLUIPA. In moving to dismiss the substantial burden claim, the County argued that it did not impose a substantial burden because ICC had other options to obtain a permit, such as redesigning the septic system, resubmitting an application, or seeking a septic permit directly from the State. Further, the County denied any acts of religious discrimination, claimed that the denial was based on a legitimate protection of public health, and suggested that ICC lacked hardship.

The Court concluded that the County’s motion to dismiss should be denied. First, County staff was on record acknowledging the completeness of ICC’s sewer application, therefore the case is constitutionally “ripe”, and the County’s action to deny the septic permit was, in fact, a final decision. Next, it found that the complaint sufficiently alleged religious discrimination, based on:

The low showing required for permit approval in the past; the historically high approval rate, including to other commercial and religious entities; the atypical delay in considering the ICC’s initial application; the statements by County officials that the ICC’s application received heightened scrutiny; the County Administrator’s prepared remarks that the ICC’s application satisfied state law and local practice, and anti-Muslim comments and pressure directed at Board members before their vote.

The Court then considered the interesting question of whether denial of a sanitation permit could constitute a land use regulation subject to RLUIPA’s protection. Finding that it was, the Court concluded that zoning approvals were contingent upon securing the sewer permit, so the County’s denial of that permit was in essence a zoning action subject to protections under RLUIPA. It was also persuaded by statutory language in favor of “broad” construction” and Fourth Circuit decisions indicating that sewer regulations are “zoning laws.”  The Court also found that there were sufficient allegations of religious discrimination because ICC was subjected to a higher level of scrutiny than is common for a septic permit. Septic permits are generally granted with regularity and ease, and without that permit, ICC was unable to construct a mosque to practice its religion- justifying both the substantial burden and religious discrimination claims.

Our previous post regarding the DOJ’s complaint is available here.

Original Photograph by Dariane N, some rights reserved.