Posted by: Patricia Salkin | August 22, 2017

Fed. Dist. Court of VA Holds Denial of Permit for Sewage Disposal was a Land Use Regulation under RLUIPA

Editor’s note: This summary appeared in the USDOJ Newsletter, Religious Freedom in Focus (May 2017) –  https://www.justice.gov/crt/religious-freedom-focus-volume-70-may2017

In an important case about the prerequisites for suits under the Religious Land Use and Institutionalized Persons Act (RLUIPA), the U.S. District Court for the Western District of Virginia held on March 29 that RLUIPA’s protections could be triggered by a denial of a sewage permit that had the effect of barring construction of a place of worship.  In the case, United States v. County of Culpeper, the court denied the County’s motion to dismiss the United States’ complaint alleging discrimination against a proposed mosque, holding that denial of a permit for sewage disposal was a “land use regulation” as contemplated by RLUIPA.
The Justice Department filed the suit on December 12, 2016 alleging that Culpeper County violated RLUIPA when it denied a “pump and haul” sewage permit application to the Islamic Center of Culpeper (ICC), preventing the ICC from building a small mosque in the county. The ICC bought land in a zoning district allowing places of worship by right. The county had told the ICC that the soil on the property, like much soil in the area, could not support a septic system, so they would need to apply for a permit to store waste on the property and periodically have it pumped out and hauled away.

According to the suit, since 1992, the county had considered 26 pump and haul applications for religious or commercial uses, and had never denied one. However, the county denied the ICC’s application after residents raised concerns about a mosque locating in the county.   There is currently no mosque in Culpeper County.  The complaint alleged that the permit denial imposed a substantial burden on the ICC’s exercise of religion, and discriminated against it based on religion.

The county moved to dismiss the complaint, primarily based on an argument that a “pump and haul” permit is not a “land use regulation”, but rather is a health regulation.  The District Court rejected this argument.  It noted that RLUIPA states that its provisions are “to be construed in favor of a broad protection of religious exercise, to the maximum extent permitted” by its terms and the Constitution.”  The court also observed that the County’s zoning ordinance had incorporated the septic system rules, such that the County’s “zoning laws make it impossible to receive permission from the County to build a structure without first obtaining the necessary sewage permit.”  Looking at other cases where courts looked at “functional application of a law rather than its abstract, formalistic classification when deciding whether it comes within RLUIPA,” the court had no trouble finding the denial of the pump and haul permit to be a “land use regulation” under RLUIPA.   The court concluded that “the County’s process regarding approval of pump-and-haul permits is best understood as a zoning law.  To hold otherwise would disregard RLUIPA’s rule of broad construction, elevate form over function, and cut against case law indicating that laws applied in a manner akin to zoning laws should be understood as such.”

 

U.S. v County of Culpeper, VA, 2017 WL 1169767 (WD VA 3/2017).

 


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