UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF VIRGINIA
UNITED STATES OF AMERICA,

)
)
)
)
) CIVIL ACTION NO. 3:16CV00083
)
)
)
)

Plaintiff,
v.
COUNTY OF CULPEPER, VA,
Defendant.

COMPLAINT
The United States of America, by its undersigned attorneys, files this complaint and
alleges:
Introduction
1.

This is a civil action brought by the United States of America under the Religious

Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. §§ 2000cc–
2000cc-5, based on the County of Culpeper’s (the “County” or “Defendant”) discriminatory
denial of a sewage permit to an Islamic congregation that has prevented it from building a
mosque on land it has purchased in the County.
Parties, Jurisdiction, and Venue
2.

This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and

1345 and 42 U.S.C. § 2000cc-2(f).
3.

Venue is proper under 28 U.S.C. § 1391(b) because the events giving rise to this

action occurred in the Western District of Virginia.
4.

Defendant County of Culpeper (the “County” or “Defendant”) is a county located

in the Commonwealth of Virginia.

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 5.

The County is governed by and acts through an elected seven member Board of

Supervisors (the “Board”).
6.

One member represents each district and each serves a four-year term of office.

7.

The members of the Board are Brad C. Rosenberger, Jefferson District; C. Jack

Frazier, Vice Chairman, Cedar Mountain District; Sue D. Hansohn, Catalpa District; Alexa V.
Fritz, Chairwoman, Salem District; Steven L. Walker, East Fairfax District; Gary M. Deal, West
Fairfax District; and, William C. Chase, Jr., Stevensburg District.
8.

The Board appoints the County Administrator, who occupies the highest level

management office of the County government. The County Administrator directs and supervises
the day-to-day operations of all County departments and agencies, which are under the direct
control of the Board.
9.

John Egertson is the County Administrator. He became the County Administrator

in April 2016. Prior to occupying this position, County Administrator Egerston was the
County’s Planning Director for about 25 years.
10.

The County has the authority to regulate and restrict the use of land and structures

within its borders, including by granting or denying requests for sewer approval.
11.

For purposes of RLUIPA, the County constitutes a “government.” 42 U.S.C. §§

2000cc-5(4)(A)(i), (ii).
Facts
Land Use in Culpeper County
12.

Land development in the County is regulated by its Zoning Ordinance and the

official zoning map. The map identifies the location of various zoning districts which are
regulated through the text of the Zoning Ordinance.

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 13.

There are currently fifteen different zoning districts in Culpeper County: two

agricultural, six residential, three commercial, two industrial and the Planned Unit Development
District and Planned Business District for mixed-use development.
14.

The R-1 Residential zoning district permits places of worship by right.

15.

Pump and haul permits are regulated by the state of Virginia.

16.

In Virginia, a pump and haul permit regulates situations where, due to the

unavailability of municipal sewers or the inability of soil to handle a septic system, sewage is
held in a tank on the site and periodically pumped out and hauled by truck to a treatment facility.
17.

Pursuant to the Virginia Administrative Code, a special permit that is issued by

the Commissioner for the Virginia Department of Health is required for the operation of all
pump and haul services. The operation of pump and haul services on a “permanent” basis, which
refers to the use of a pump and haul operation for more than one year, must be done under the
auspices and supervision of a government entity.
18.

The County holds the only permanent pump and haul permit issued by the

Virginia Department of Health in Culpeper County.
19.

In order to conduct a pump and haul operation for a period of more than one year

in the County, an individual or entity must receive approval from the Board to be added to the
County’s general pump and haul permit.
20.

Approval of permanent pump and haul services in the County is at the complete

discretion of the Board.
21.

Since 1992, other than the request from the ICC, the County has considered a total

of 26 pump and haul requests for commercial or religious use, including nine for churches.
Every one of those pump and haul requests has been granted.

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 The Islamic Center of Culpeper
22.

The Islamic Center of Culpeper (the “ICC”) is a non-profit, Muslim organization

incorporated and existing under Virginia law. The ICC is a “religious assembly or institution,”
as defined by RLUIPA. 42 U.S.C. § 2000cc(2)(b)(1).
23.

According to the religious beliefs and practices of the ICC, members are required

to pray five times per day and attend a Friday afternoon prayer service, which includes a sermon.
Before praying, ICC congregants perform ablution, or “wudu,” a sacred ritual that requires the
washing of hands and feet.
24.

ICC members believe that Islam does not permit borrowing money at interest, and

they believe it is especially important that the financing of a religious building not be tainted by
interest financing. For this reason, they cannot take out a mortgage to finance the purchase of
land and construction of a mosque.
25.

Since its inception, the ICC has been without a mosque. There is no mosque in

the County. The closest mosque is approximately forty-five minutes away by car, which is too
far for most ICC members to drive for daily prayers.
26.

Without a mosque, the ICC currently worships at a small house on the site of a

used car dealership on Brandy Road in Culpeper.
27.

The house does not adequately serve the ICC’s religious needs. The house has a

single room, and it is too small to host events that attract additional worshippers, such as the
celebrations of the holidays of Eid al-Fitr and Eid-ul-Adha. Another limitation of the house is
that women do not have a separate area for worship, which the ICC feels is important to have for
Muslims who believe there should be separate areas for male and female congregants to pray. In
addition, the house does not contain a dedicated space for Qur'an or Arabic language studies and,
as a result, these classes are often disrupted by other activities that take place in the house. Also,
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 the house has an inadequate washing facility. Consequently, most congregants wash their hands
and feet before they come to the house for prayer.
28.

In 2011, the ICC initiated an effort to find a permanent facility to conduct its

worship services. The ICC performed a five-year search for a suitable property, but had
difficulty finding a property that was centrally located in the County and affordable.
29.

On January 19, 2016, the ICC entered into a purchase contract to buy one acre at

14434 Rixeyville Road (the “Subject Property”), which is located in the R-1 zoning district of
the County where religious land use is permitted by right.
30.

The ICC purchased the Subject Property on April 14, 2016 for $15,000.

31.

The Subject Property contains a dilapidated structure that the ICC intends to

demolish and replace with a small mosque that could serve the religious needs for up to one
hundred congregants over the next decade.
The ICC’s Request for a Pump and Haul Permit
32.

In January 2016, Mohammad Nawabe, the ICC’s Director, contacted the County’s

Planning and Zoning Department seeking information to effectuate the ICC’s envisioned mosque
at the Subject Property. Mr. Nawabe spoke to Sam McLearen, who was the County’s Zoning
Administrator and Acting Planning Director at the time.
33.

As a first step, Planning Director McLearen recommended that Mr. Nawabe

contact the local health department to learn more about the Subject Property’s soil conditions.
34.

At Planning Director McLearen’s behest, Mr. Nawabe contacted the County’s

health department, which informed Mr. Nawabe that the Subject Property’s soil would not
support a traditional septic tank and drain field, and that the ICC would need to apply for a

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 permanent pump and haul permit with the County. The health department provided Mr. Nawabe
with two letters that evidenced the Subject Property’s poor soil conditions.
35.

On or about February 8, 2016, Mr. Nawabe paid a $250 processing fee and

submitted a completed pump and haul application package to the County on behalf of the ICC.
The application package included the application, a signed pump and haul agreement, the ICC’s
contract to purchase the Subject Property, and the two letters from the health department.
36.

On the application, the ICC indicated that the Subject Property would be used for

“praying and meetings” and that the ICC was presented with a hardship because “the soil is bad
and cannot support a traditional septic system.”
37.

The County scheduled the application to be considered at the Board’s March 1,

2016 meeting.
38.

On February 28, 2016 at 8:24 p.m., Kurt Christensen, a well-known civic leader

sent an email to County Administrator Egerston, select members of the Board, and media outlets
voicing concern about the ICC’s application. The email read in relevant part: “I understand the
Islamic Center of Culpeper wishes to rehabilitate the existing home and use it on a weekly basis
as a place of prayer. …..Hmmmmmmmmm...” Christensen asked the Board to “please pull this
item from the March meeting agenda and give citizens a detailed briefing pronto.”
39.

Upon reading the email the following morning, County Administrator Egerston

sent the County Attorney an email stating “we should discuss this today. Thanks.”
40.

In a break from prior practice, and in response to Christenson’s email, at the

March 1, 2016 Board meeting the County Attorney stated she needed time to review the ICC’s
contract. As a result, the Board pulled the application from the March 1, 2016 meeting agenda.

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 41.

The County Attorney however, did not require such a review for previous

applicants’ pump and haul contracts.
42.

After the March 1, 2016 meeting, Planning Director McLearen contacted Mr.

Nawabe and asked that he meet him at his office to discuss the ICC’s pump and haul request.
43.

Later that day, Mr. Nawabe met with Planning Director McLearen, who was

joined by County Administrator Egerston and Board Chairwoman Fritz.
44.

During the meeting, Planning Director McLearen informed Mr. Nawabe that he

had given him an outdated pump and haul agreement to complete. Planning Director McLearen
provided him with the correct form. County Administrator Egerston and Chairwoman Fritz
assured Mr. Nawabe that pump and haul applications were routine matters and that the ICC’s
application would be approved.
45.

On or about March 3, 2016, Mr. Nawabe resubmitted the ICC’s pump and haul

application package, using the correct pump and haul agreement, to the County.
46.

The County scheduled the application to be considered at the Board’s April 5,

2016 meeting.
47.

Between the March 1 and April 5, 2016 Board meetings, the County received

numerous emails and phone calls from constituents opposing ICC’s pump and haul application.
Much of the opposition contained comments that disparaged Muslims and made references to
terrorism and the 9/11 attacks.
48.

On April 2, 2016, Chairwoman Fritz emailed County Administrator about the

barrage of emails and phone calls she received concerning the ICC’s request for a pump and haul
permit. County Administrator Egerston responded: “It just keeps coming back to the same
question – why is this request subject to more scrutiny and tighter interpretation of the policy

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 than all the past requests?” He informed Chairwoman Fritz that he would be prepared to cover
the questions raised by the community at the April 5 Board hearing.
49.

In a subsequent email from Chairwoman Fritz to County Administrator Egertson

on the same day, Chairwoman Fritz agreed that “the scrutiny is unfair,” and that she hoped “that
if all questions are answered prior to any board discussion it will keep the grandstanding to a
minimum.” She also warned County Administrator Egertson 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.”
50.

On April 5, 2016, the Board considered the ICC’s application for a pump and haul

permit. Prior to the Board’s discussion on the application, County Administrator Egerston read a
prepared statement that noted the following:
•

The County had reviewed the ICC’s application package and the ICC was deemed
an eligible applicant under applicable state law.

•

The subject property is “within reasonable distance from public utilities, it has the
potential that those utilities could become available over the next few years, if not
in the immediate future.”

•

The Board had the authority to approve requests for pump and haul permits
“which are expected to be in use for periods longer than one year” and that pump
and haul permits had been approved in the past that were considered “long term.”

•

County staff researched pump and haul permits issued since 1995 and the Board
had approved all but one application.

•

The County’s practice has “generally required the applicant to show proof [from]
the health department that no other viable alternatives exist” and that the ICC

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 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 by the health department and the soil consultants that
could work here.”

51.

After a discussion from the supervisors on the ICC’s application, Supervisor

Chase made a motion to deny the ICC’s request, which received cheers from the audience.
52.

Supervisor Chase’s motion to deny the ICC’s request passed 4 to 3 with

Chairwoman Fritz and Supervisors Sue Hansohn and Brad Rosenberger voting in the minority.
Voting with Supervisor Chase were Supervisors Gary Deal, Jack Frazier and Steve Walker.
53.

Prior to the vote, Supervisors Chase, Deal and Frazier stated that they opposed the

ICC’s pump and haul application because the ICC did not show hardship. In particular,
Supervisor Chase stated that pump and haul services are used “for emergencies. . . . [The ICC’s
request] is [n]ot for a commercial or church use, a purpose like that. That’s the reason I can’t
support it.”
54.

According to Supervisors Chase, Deal, Frazier, and Walker, the ICC was not

presented with a hardship since it did not own the Subject Property at the time of the application,
and because the property did not contain an existing structure. However, the Board previously
approved requests for pump and haul operations where the applicant presented circumstances
that were similar, if not identical, to the ICC’s, including circumstances where an applicant did
not yet own the property and in which there was not an existing structure. The Board considered
26 applications and never denied a pump and haul permit to a commercial or religious use prior
to the ICC.

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 55.

Because the County did not approve the ICC’s pump and haul request, the ICC

cannot construct a mosque, and therefore its members cannot engage in their religious practices
to the degree and in the way they believe they are compelled to do.
56.

There is currently no other land in the County that is available for purchase that is

suitably located for the ICC’s worship community and is affordable.
57.

In denying the ICC’s application, the County has used its pump and haul

application review process as a means for allowing land uses that it desires and excluding a use
that it is does not want in the County.
58.

For purposes of RLUIPA, the County’s denial of the ICC’s pump and haul request

constitutes the “application” of a “land use regulation” that “limits or restricts a claimant’s use or
development of land (including a structure affixed to land).” 42 U.S.C. § 2000cc-5(5).
COUNT I
RLUIPA – Substantial Burden
59.

The allegations above are hereby incorporated by reference.

60.

Defendant’s treatment and denial of the ICC’s pump and haul permit has imposed

a substantial burden on the ICC’s religious exercise in violation of RLUIPA, 42 U.S.C. §
2000cc(a)(1).
COUNT II
RLUIPA – Discrimination
61.

The allegations above are hereby incorporated by reference.

62.

Defendant 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 violation
of RLUIPA, 42 U.S.C. § 2000cc(b)(2).
WHEREFORE, the United States prays that this Court enter an order that:

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 1.

Declare that the Defendant’s actions, as alleged herein, violate RLUIPA;

2.

Enjoin the Defendant, its officers, employees, agents, successors and all

other persons in concert or participation with it, from—
a.

Imposing a substantial burden on the religious exercise of the ICC and its

members that is not narrowly tailored to further a compelling governmental interest; or
b.

Discriminating against the ICC and its members on the basis of religion or

religious denomination.
3.

Require the Defendant, its officers, employees, agents, successors, and all other

persons in concert or participation with it, to:
a.

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; and
b.

Take such actions as may be necessary to prevent the recurrence of such

unlawful conduct in the future, including but not limited to, providing RLUIPA training
to its personnel, establishing procedures to address complaints of RLUIPA violations,
and maintaining records and submitting reports relating to RLUIPA compliance; and
4.

Awards such additional relief as the interests of justice may require, together with

the United States’ costs and disbursements in this action.

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 Respectfully submitted,
LORETTA E. LYNCH
Attorney General

JOHN P. FISHWICK, JR.
United States Attorney
Western District of Virginia

s/Vanita Gupta_______________________
VANITA GUPTA
Principal Deputy Assistant Attorney General
Civil Rights Division

s/Sameena Shina Majeed
SAMEENA SHINA MAJEED
Chief

_

s/Onjil McEachin____________________
CATHERINE A. BENDOR
Deputy Chief
ERIC W. TREENE
Special Counsel
ONJIL McEACHIN
NY State Bar
Trial Attorney
Housing and Civil Enforcement Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Northwestern Building, 7th Floor
Washington, D.C. 20530
Phone: (202) 353-4136
Email: Onjil.McEachin@usdoj.gov

Dated: December 12, 2016
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