CHARLOTTESVILLE – It’s been three months since the Islamic Center of Culpeper and Culpeper County entered into a mutually-agreed upon settlement that: 1) granted the previously-denied sewer permit for the center’s planned mosque; 2) provided written assurance that the county would not delay expeditious approval of further applications needed for mosque construction and 3) gave the center $10,000 for out-of-pocket expenses arising from last year’s permit denial by the board of supervisors.
A court order subsequently entered by U.S. District Court Judge Norman Moon dismissed the Islamic Center’s claim of religious discrimination against the county while allowing him to retain jurisdiction over the settlement agreement to resolve any future disputes and to enforce its terms.
So why is the U.S. Justice Department still pursuing its religious discrimination claim against Culpeper in the same matter? It’s apparently because the Feds don’t think the county is sorry enough.
At a federal court hearing Friday at which the county argued to dismiss the suit for a second time, Judge Moon sided with Culpeper in providing his take on the sustained complaint, saying the continued litigation still puts the Islamic Center at odds with the county.
“It’s an artificial division of a settlement agreement. They tried to come together, said they would try to live together peaceably, now it seems you are putting a wedge between the county and the Islamic Center of Culpeper,” he told the federal attorney arguing against dismissing the case.
The Justice Dept.’s continued pursuit of the lawsuit does not help the Islamic Center, Moon added.
“They probably want to live peaceably and not be in litigation because litigation is unpleasant. You are stirring the pot, keeping something going that’s already been resolved,” the judge said.
When Culpeper County argued its first motion to dismiss the lawsuit earlier this year, prior to reaching the settlement with the Islamic Center, Moon ruled against the county, saying in a written opinion that the alleged facts “leave the impression that the county’s permit denial was based on religious hostility,” which the county continues to deny.
The judge, on Friday, maintained his original stance that the permit was likely denied due to anti-Muslim sentiment in the community, but insisted the matter had now been resolved.
Moon repeatedly interrupted U.S. Attorney Onjil McEachin – with the Housing & Civil Enforcement Section of the Civil Rights Division of the U.S. Dept. of Justice in Washington, D.C. – as she attempted to argue for 45 minutes why the case should still go to trial in January, alleging that Culpeper County violated the Religious Land Use & Institutionalized Persons Act.
The county could discriminate again, McEachin said, adding that the board of supervisors, in denying the pump-and-haul sewer permit, prevented the Islamic Center from building a mosque on land it owns “for no other reason that it does not want a mosque in Culpeper County.” She noted that in the prior 25 years, the county had routinely approved 26 other applications for pump-and-haul sewer systems and had never denied one until the Islamic Center asked for one.
“We have no confidence the county will comply with its obligations under the Religious Land Use Act,” McEachin said to which Moon responded sharply, “Why can you not take the word of these people? They have given the Islamic Center what they asked for.”
McEachin responded that the county continues to deny any wrongdoing, and Moon retorted that it was an admission of sorts for the county to grant the permit and other allowances contained in the settlement agreement.
“Who are you to tell the Islamic Center that they don’t know what is best for them?” the judge said. “It’s almost as if you are saying, ‘You are weak and can’t protect yourself.’ Is there any reason for the government to remain involved in this discreet event?”
McEachin said the Justice Dept. had “a broader interest” in protecting the civil rights of all citizens of Culpeper in ensuring that the county does not discriminate again by denying a utility permit.
“If they do that, they will be right back here in this court. I don’t need the government to tell me what to do in this case,” Moon said, asking what else the county could have done to satisfy the Justice Dept.
Culpeper County Attorney Bobbi Jo Alexis, arguing for dismissal of the federal lawsuit on Friday in Charlottesville, detailed the county’s steps to publicize its intended compliance with the Religious Land Use Act through notices in all land use permit applications, on a sign at the front desk of the county planning office and on the main page of the department’s web site.
The county also adopted “a complaint form,” based on a Justice Dept. model, for citizens claiming discrimination in the land use process and offered voluntary training for staff, board members and the planning commission on the Religious Land Use Act.
“This matter is moot,” Alexis said. “It has been resolved in a positive manner and completely.”
But McEachin said more could be done, including requiring the county to keep written records of all pump-and-haul permit applications and any denials as well as “a full range of remedies,” such as ongoing monitoring by the Justice Dept.
Moon asked the U.S. Attorney if she wanted a county employee devoting time to sending her written reports, saying, “We are going to go through a long trial so you can do that? I just don’t see where you come off saying the county acted dishonorably in the case and it’s some sort of sham,” said the judge.
Clearly ruffled by his pointed comments, McEachin shuffled through voluminous files to find her place, her voice wavering and then going silent for at least a minute. Gathering herself, McEachin pointed out that the three board members who twice voted against granting the sewer permit did not attend the recent county-led training on the Religious Land Use Act to which Moon responded he would not expect elected officials to attend.
McEachin further attempted to assert that the county would revoke the Islamic Center’s sewer permit, saying it was “very likely” because of the religious animus in the community and the county not admitting any wrongdoing. She added that the Islamic Center’s rights may not be adequately protected under the settlement agreement to which Moon replied, “They don’t get rights greater than any other citizen because they have been discriminated against once. They have a right to be made whole.”
McEachin responded, “They have a right to not be discriminated against again so they can move forward and build their mosque.”
County Attorney Alexis was passionate in her 20-minute argument to dismiss the federal lawsuit, saying that the alleged wrong would not be repeated.
“The permit has been granted, your honor, per an agreement the Islamic Center consents to. If the county attempted to engage in any future tomfoolery the county will have to answer to you. The county cannot revoke the permit. The alleged conduct is not capable of repetition while evading your review,” said Alexis.
She noted that the Islamic Center had eight lawyers, including two from California-based Muslim Advocates, “And we reached an agreement peaceably to everybody’s satisfaction. I think that says a lot,” Alexis said. “This is no half-hearted attempt as the Justice Dept. alleges.”
She reiterated that the situation had been completely resolved.
“Continued divisiveness impedes progress of the resolution that we made in good faith together in the spirit of compromise,” Alexis said. “Continued litigation just stirs the pot.”
Also representing Culpeper County, attorney Sharon Pandak concluded Friday’s arguments by disputing the Justice Department’s claims that the county was not penitent as the reason for the suit continuing. She admitted there while there may be Culpeper citizens who are intolerant of Muslims it was not true of county government.
“There are people in Culpeper County that may be bigoted, but they are not the board of supervisors,” Pandak said.
She argued that the Justice Dept. does not have the right to claim some broad enforcement power.
“They simply have a right to correct what was out of compliance,” Pandak said, adding, “There is no case of controversy because the matter has been resolved. Why continue the litigation? It’s simply the Dept. of Justice stirring the pot, and that’s a challenge in these times.”
Like he did last time, Moon will issue a written decision on the county’s motion to dismiss.
Allison Brophy Champion can be reached at firstname.lastname@example.org or 540/825-4315.