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United States v. County of Culpeper

United States District Court, W.D. Virginia, Charlottesville Division

March 29, 2017

United States of America, Plaintiff,
County of Culpeper, Virginia, Defendant.



         In 2016, the Islamic Center of Culpeper (ICC) wished (and still wishes) to build a mosque. Local health authorities told the ICC its building site would not support normal septic methods, so it needed a special permit from the County. Historically, such permits were granted as a matter of course, with little fanfare or scrutiny. Officials even called the matter “routine” and stated publicly that the ICC's application satisfied state law and the County's protocols. Nevertheless, the County denied the application.

         For now, the Court has before it only allegations, not evidence. Allegedly, though, the County first delayed a hearing on the ICC's application. During the delay, a few officials openly worried that the application was being subjected to an unusual, heightened degree of scrutiny. At the same time, local citizens got wind of the ICC's plan to build a mosque and began pressuring County officials to deny the permit. Some of these communications (both prior to and during the subsequent public hearing) supposedly contained unabashed anti-Muslim sentiments. Ultimately-despite the County Administrator's conclusion that the ICC's application met state and local requirements, and notwithstanding that the County granted every similar application over the last quarter-century-the County's Board of Supervisors (“Board”) denied the permit by a 4-to-3 vote, drawing applause from the audience at the hearing.

         Based on these allegations, the United States of America filed this lawsuit against the County for violating RLUIPA-the Religious Land Use and Institutionalized Persons Act. That statute forbids land use laws that (1) discriminate against a group because of its religion, or (2) substantially burden religious exercise, unless there is (in layman's terms) an extremely good, narrowly-crafted reason for doing so. See 42 U.S.C. §§ 2000cc-(a), (b)(2).

         The County has moved to dismiss the lawsuit. But the facts alleged leave the impression that the County's permit denial was based on religious hostility, and that the denial substantially burdened the ICC's ability to exercise its religion. And although the County contends that RLUIPA's protections do not apply to its permit process, several points indicate otherwise: the text of RLUIPA, precedent from the Fourth Circuit and other courts, the structure of the County's own laws, and how the permit process was (allegedly) used here to restrict property that otherwise allowed religious uses as of right. For these reasons, the Court will deny the County's motion to dismiss.


         The County primarily argues that the allegations in the Complaint do not amount to a violation of the law. When evaluating this type of motion to dismiss, the Court must accept as true all well-pled allegations. See Vitol, S.A. v. Primerose Shipping Co., 708 F.3d 527, 539 (4th Cir. 2013); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and quotation marks omitted). Stated differently, in order to survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The Court disregards the Complaint's legal conclusions and arguments. Iqbal, 556 U.S. at 578-79.

         The County also asserts this Court lacks jurisdiction because the case is not ripe for decision. When a motion to dismiss is made pursuant to Rule 12(b)(1), the plaintiff bears the burden of proving his assertion of subject-matter jurisdiction. See The Piney Run Pres. Ass'n v. The Cty. Comm'rs Of Carroll Cty., MD, 523 F.3d 453, 459 (4th Cir. 2008). In a facial challenge to subject-matter jurisdiction, like the one asserted here, the “defendant contends that a complaint simply fails to allege facts upon which subject matter jurisdiction can be based. Accordingly, the plaintiff is afforded the same procedural protection as she would receive under” the Rule 12(b)(6) legal standard, discussed above. Beck v. McDonald, 848 F.3d 262, 270 (4th Cir. 2017) (internal citations and quotations omitted).


         The ICC and Its Religious Needs

         The ICC is a non-profit, religious organization centered around Islam. (Complaint ¶¶ 22- 23). ICC members adhere to several religious beliefs and practices. For instance, members are religiously required to: pray five times daily; wash their hands and feet before prayer in a sacred ritual called abulation or wudu; and attend a Friday religious service. (Id. ¶ 23).

         The ICC is, and always has been, without a mosque. (Complaint ¶ 25). None exists in Culpeper County, and driving to an existing mosque is simply infeasible. (Id. ¶ 25). The nearest mosque is approximately 45 minutes away, meaning ICC members would have to travel by car almost eight hours round-trip every day to attend the five, religiously required daily prayer sessions. (See id. ¶ 25).

         Consequently, ICC members currently worship at a small, single-room house in Culpeper County. (Complaint ¶¶ 26-27). The house fails to meet the membership's religious needs. It is too small to host large gatherings on significant religious holidays and celebrations. (Id. ¶ 27). It does not have separate worship facilities for women, which conflicts with the ICC's beliefs. (Id.). There is no dedicated space for studying religious texts, so classes are often interrupted by other activities. (Id.). And the house lacks an adequate washing facility, so most congregants perform adulation at their own homes. (Id.).

         Facing these problems, the ICC undertook a multiyear search for suitable property to purchase and on which to build a mosque. (Complaint ¶ 28). The members' faith does not permit borrowing money at interest, a belief applying with special force to the construction of a mosque. (Id. ¶ 24). That belief, along with the lack of affordable land in a central location within the County, made finding a suitable property difficult. (Id. ¶¶ 24, 28). Yet on January 19, 2016, the ICC signed a contract for a one-acre tract in Culpeper County (“the Property”); the land is zoned for residential use and allows religious uses as of right. (Id. ¶¶ 14, 29).

         The ICC's Initial Pump-and-Haul Application and Subsequent Delay

         Also in January 2016, the ICC's Director, Mohammad Nawabe, asked the County's Planning and Zoning Department for information about the Property. (Complaint ¶ 32). The County Planning Director encouraged Nawabe to contact the local health department about the Property's soil conditions, which Nawabe did. (Id. ¶¶ 33-34). The health department informed Nawabe that the Property's poor soil would not support traditional septic systems, so the ICC needed to apply for a pump-and-haul permit from the County. (Id. ¶ 35). The health department provided Nawabe with two letters regarding the Property's poor soil conditions. (Id.).

         A pump-and-haul permit is used when municipal sewers cannot service a property and the local soil cannot effectively support a septic system. (Complaint ¶ 16). Accordingly, sewage is held in a tank on-site, then periodically pumped out and hauled away by truck to a treatment plant. (Id. ¶ 16). Pump-and-haul permits are a creature of state law and issued by the Virginia Department of Health. (Id. ¶ 17). But any “permanent” pump-and-haul operation-meaning one lasting longer than a year-must be done under supervision of a local governmental entity rather than a private actor. (Id. ¶ 17; see 12 Va. Admin. Code § 5-610-599). The Culpeper County government is the only holder of a permanent pump-and-haul permit in Culpeper County, so one must receive the Board's approval to be added to its permit. (Complaint ¶¶ 18-19; see 12 Va. Admin. Code § 5-610-599.3).[1] The Board exercises complete discretion over that decision. (Complaint ¶ 20). But from 1992 to 2016, the Board considered 26 applications for commercial or religious use (including nine for churches) and granted them all. (Id. ¶ 21).

         Around February 8, 2016, Nawabe paid a processing fee and submitted a pump-and-haul application to the County on behalf of the ICC, which included the two letters from the health department. (Complaint ¶ 36). The application indicated that the Property would be used for “praying and meetings” and that the Property's soil could not support a traditional septic system. (Id. ¶ 36). The application was scheduled for a hearing before the County's Board of Supervisors (“Board”) on March 1, 2016. (Id. ¶ 37).

         Two days prior to the meeting, “well-known civic leader” Kurt Christensen emailed certain Board members, the County Administrator, and local media outlets about the application. He wrote that the ICC “wishes to rehabilitate the existing home [on the Property] and use it on a weekly basis as a place of prayer…………Hmmmmmmmm” and asked the Board to “please pull this item from the March meeting agenda and give citizens a detailed briefing pronto.” (Complaint ¶ 38). The County Administrator subsequently emailed the County Attorney, saying “we should discuss this today.” (Id. ¶ 39). The County Attorney then stated at the March 1 meeting that she needed more time to review the ICC application. The Board granted a delay, which was a break from prior practice because historically the County Attorney did not review such applications. (Id. ¶¶ 40, 41).

         The ICC's Second Application and the Board's Vote

         After the March 1 meeting and at the County Planning Director's request, Nawabe met with the Director, the County Administrator, and Board Chairwoman Alexa Fritz to discuss the pump-and-hall application. (Complaint ¶¶ 42-43). At the meeting, the Director provided Nawabe with a new permit application because the previous one was ostensibly outdated, and the County Administrator and Chairwoman Fritz assured Nawabe that the permit was a routine matter. (Id. ¶ 44). Nawabe promptly resubmitted the application, which was scheduled for a hearing at the Board's April 5, 2016 meeting. (Id. ¶¶ 45-46).

         Prior to the April 5 meeting, the County received many emails and phone calls from citizens about the ICC's application, and allegedly “[m]uch of the opposition” contained disparaging anti-Muslim comments, such as references to terrorism and the September 11, 2001 terrorist attacks. (Complaint ¶ 47). On April 2, Chairwoman Fritz contacted the County Administrator about the deluge of correspondence, to which the County Administrator replied:

It just keeps coming back to the same question-why is this request subject to more scrutiny and tighter interpretation of the policy than all the past requests?

(Complaint ¶ 48). Chairwoman Fritz agreed that “the scrutiny is unfair” and hoped that the County Administrator would be prepared to answer questions to help “keep the grandstanding to a minimum.” (Id. ¶ 49). She advised the County Administrator that “Board members are being drilled by these folks and taken to lunch I hear so these are the questions and/or comments [Board members] will be making in order to answer to those folks.” (Id.).

         The Board considered the ICC's application on April 5. Prior to discussion, the County Administrator read a ...

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