COUNTY OF CULPEPER
OFFICE OF THE COUNTY ATTORNEY
306 North Main Street, Culpeper, VA 22701
‘Telephone: (540) 727-3407 — Fax: ($40) 727-3462
December 7, 2016
Attention: Onjil McEachin, Esq.
‘Trial Attorney
Housing and Civil Enforcement Section
Civil Rights Division
United States Department of Justice
950 Pennsylvania Avenue, NW —-NWB!
Washington, DC 20530
Re: Letter in Response to DOJ Letter ~ United States’ Authorized RLUIPA Lawsuit
Against Culpeper County
Dear Ms. McEachin,
write to you on behalf of Culpeper County (the “County”) in response to the letter dated
November 10, 2016, postmarked November 14, 2016, and signed by Sameena Shina Majeed.
The County is dismayed by this letter. The County has cooperated fully with the Department of
Justice (DOD) and is disappointed that the Principal Deputy Assistant Attomey General for the
Civil Rights Division has authorized the filing of litigation against the County. This situation
does not warrant federal intervention or litigation,
‘The County requests that DOJ thoroughly review the voluminous records which the
County has voluntarily provided, and reconsider its position. The County has acted in good faith
and in complete compliance with all federal, state and local laws. The DOJ has not provided a
report or analysis of its findings to the County, or engaged in substantive dialogue through legal
counsel concerning its findings. DOJ has a public obligation to be forthcoming, and not just
threaten.
1. NO VIOLATION OF RLUIPA
Absolutely no law or fact supports a complaint alleging that the County implemented a
land use regulation that imposed a substantial burden on religious exercise or that discriminates
" This leter in response is also being mailed to: 1800 G Street, NW, Suite 7002, Washington, DC, 20006; faxed to:
(202)5 14-1116; and emailed to onjil.mceachin@usdoj.gov.against the Islamic Center of Culpeper (ICC) on the basis of religion or religious denomination
in violation of the Religious Land Use and Institutionalized Practices Act (RLUIPA). The
County feels strongly that the instant facts do not fall within the purview of RLUIPA.
‘The County has implemented no land use regulation that imposes any burden, much less
a substantial burden, on any religious exercise or a regulation that discriminates against religious
entities on the basis of religion or religious denomination. Yet land use regulation is the focus of
RLUIPA, not the handling of sewage. See 42 U.S.C. § 2000ce.
Importantly, as I have previously advised, the County Zoning Ordinance provides that, in
each and every of its zoning districts, religious institutions, places of worship, and other ancillary
uses normally associated with congregational worship, such as churches, parish houses, rectories,
parsonages, seminaries, and Sunday Schools, are (with emphasis) a by-right use. Further,
there are no County zoning regulations or land use limitations applicable to religious institutions,
places of worship, and other ancillary uses.
‘The permit application in the instant case concerns a request of the ICC to haul feces
(sewage waste) away from the subject-site and about the County. This process is known as
“pump and haul.” It involves storing the excrement on site, picking it up potentially months
later, and carrying it to another site for disposal. This issue concerns a quintessential health
matter, management and disposal of excrement, and not the use of the land as or by a religious
entity. Moreover, the County's action does not prevent the ICC from locating to the site. Thus,
the County imposed no burden on the ICC's ability to engage in religious exercise.
The ICC’s application earlier this year to the County Board of Supervisors (the “Board”)
sought a permanent permit to dispose of excrement by hauling it away from the site and upon the
roads of the County. The ICC did not investigate or explore any of the preferred methods of
disposal of the feces, as expressed under Virginia law. ‘The County's local Zoning Ordinance
and land use regulations simply do not apply. Rather the laws of the Commonwealth of Virginia
and the regulations of the Virginia Department of Health apply.
When presented with the issue, the Board engaged in full and fair reflection conceming
the matter of waste management. Several factors were considered attendant to the review of the
application as to the pump and haul/sewage waste management permit, including but not limited
1
= the failure of the applicant to provide appropriate or any current information
regarding the ability of the site to maintain a traditional sewage system; and
= the failure of the applicant to provide any information regarding the exploration of
readily available alternative sewage systems to address sewage disposal rather than
by pump and haul.
Due to the missing information, the Board reasonably denied the request to permanently
pump and haul excrement from the site. Even upon this denial, the ICC could have secured and
can still secure a temporary permit fiom the local Health Department at any time, while itexplored the preferred waste management methods (alternative systems) under the Code of
Virginia.
‘The ICC should have explored alternative systems before petitioning the Board. Where a
site cannot support a traditional drain field and/or septic system, many alternative methods are
readily available to treat the feces on site in an environmentally sound manner. These methods
are akin to a mini-sewage treatment plant and offer a more efficient and sanitary solution than
the pump and haul approach.
The Virginia Administrative Code (VAC), which governs human waste removal,
provides that pump and haul should be an unusual circumstance. Moreover, pumping and
hauling on a permanent basis (for over one year) is prohibited by Virginia law unless done under
the auspices and supervision of a government entity. These restrictions are not surprising given
that the pumping and hauling of waste can result in contamination not only on the site from
which the feces are pumped and the one into which they are pumped but also dripping along
roadways and other property during transport
Il. SAME FACTORS CONSIDERED IN REVIEWING PREVIOUS APPLICATIONS.
Review of every previous determination of the applications and the records attendant
thereto for a pump and haul permit reveals that in all 23 previous applications, the same lawful
and appropriate factors were considered by the Board, just as in the case of the ICC. Those
factors include, but are not limited to:
(1) was the request attendant to an existing structure whereby an emergency of a
failing traditional septic system (ie. in ground field) prompted the request?
(2) was the request temporary in nature and limited to a term certain?
(3) was the proposed site to be served within the water sewer master plan such that it
‘was reasonably contemplated that one day it would be served by public water and
sewer or other sewer treatment plant?
(4) were altemative systems (which properly disposed of the sewage onsite) explored
and exhausted by the applicant, etc.?
tis clear that these factors are not land use considerations as contemplated by RLUIPA.
They are health issues.
Even if the pump and haul permits were under the purview of RLUIPA, there is no
singling out of the ICC on the basis of religion, Many of the prior applications involved the
Brandy Station area which is an area located in the general vicinity of the airport and/or other
areas slated for extension of public water and sewer facilities. (A map wes provided to you of
this contemplated service area.) By contrast, the ICC application was for a site in an area that isnot currently slated for public water and sewer services. This is very important because, as the
VAC notes, pump and haul is intended to be temporary. To date, the ICC has provided no
information to the County indicating that the pump and haul operation is intended to be
temporary.
Further, only one church was previously permitted for pump and haul when no structure
was existing on the site. In that instance the Health Department supported the application
because the structure was to be built near the Town water supply. Unlike that application, the
ICC wants to demolish the structure and rebuild from scratch without seeking Health Department
assistance or support.
In addition, this Board has spent time studying its responsibilities under its VAC general
permit which allows it to grant pump and haul permits. The Board has become increasingly
concerned about its legal obligation to supervise the pumping and hauling, It has concluded that
it needs to revise its regulations in order to make clear its expectations of permittees and to
capture in writing the expectations it has of applicants in reviewing their applications. ‘That
process is ongoing and a report will be made to the Board within the month, Granting a vacant
property a permit permanently to conduct a pumping and heuling operation after building a new
structure while the Board is in the midst of revising its regulations does not make any sense.
Consequently, the Board acted properly in denying the application
Finally, the ICC is not precluded from filing for a new application for a pump and haul
permit. Importantly, it is not precluded from using alternative septic systems or consulting with
the Health Department on whether a traditional septic system can be utilized.
HI.DOJ SHOULD RECONSIDER
As noted, the County acted in good faith, and provided complete and thorough timely
responses to the DOJ. The County furnished over 1000 pages of responsive documents and other
information. At DOI’s request, the County Administrator and the Planning/Zoning Director met
with the DOJ and cooperated in extensive interviews. In addition, each and every member of the
Board agreed to meet with the DOJ and be interviewed. The DOS elected to interview a majority
of the Board members and these interviews were conducted by two DOJ attorneys, including a
federal prosecutor. The Board’s willingness to aid the DOJ with its investigation is itself
precedential.
The lack of any DOI report, the absence of the release of any specific findings, and the
absence of any substantive dialogue through counsel as to the identified concems of law and fact,
are very troubling. These omissions on a matter that DOS indicates is so important suggest that
DOI is proceeding rashly and precipitously.
We, therefore, ask that DOJ reconsider filing suit. DOJ con certainly follow the County's
current efforts to improve its processes with respect to pump and haul permits, which may
include removing itself from such an approval role. Certainly, the DOJ has many more
intractable issues to handle. However, please be advised that, if DOI proceeds with litigation,
the County will vigorously defend its actions.1 am available to discuss these matters with you, please do not hesitate to contact me at
the above address or via email at bjalexis@eulpepercounty.gov. Thank you for your time and
consideration. I remain
Very truly yours,
Bobbi Jo Alexis
County Attorney
ce: Mme. Chairman and the Members of the Board of Supervisors
John C. Egertson, County Administrator
Samuel A. McLearen, Planning Director