CHARLOTTESVILLE—U.S. District Judge Norman Moon asked Culpeper County’s counsel many questions Wednesday morning as the locality sought to dismiss the U.S. Justice Department’s lawsuit alleging that the board of supervisors religiously discriminated against the Islamic Center of Culpeper when it denied a sewer permit for a bathroom in a planned mosque.

Moon heard about an hour of arguments from both sides before recessing the hearing without ruling on the motion to dismiss. He is expected to issue a written decision in the coming weeks or sooner.

Woodbridge-based attorney Susan Pandak represented Culpeper County, repeatedly arguing that denial of the pump-and-haul sewer permit did not preclude the Islamic Center from building its prayer house.

“It’s a self-imposed hardship,” she said, contending that the Muslim congregation could have explored other options for waste disposal and reapplied to the county board.

Pandak said the plaintiff failed to demonstrate “unusual circumstances” existed necessitating a pump-and-haul system on the piece of land—along Route 229—that is out of reach of public utilities and will not, according to the health department, support a traditional drain field.

“The United States is in a rush to tag Culpeper County with wrongdoing,” said the former Orange County Attorney assisting Culpeper County through its insurance company, “when the Islamic Center can build a mosque on its property in Culpeper County.”

She repeated numerous times that the county allows religious uses on any land zoning designation.

Moon interrupted the lawyer numerous times in attempting to clarify how any building could be built without access to reliable sewer disposal. He also emphasized the county’s history of approving all of the two dozen other requests for pump-and-haul permits through the years except for the one “minority” applicant.

“The allegation is (the Islamic Center) is being treated differently than the other people who applied for this permit,” he said. “The only one that was denied was the mosque.”

The allegation, Moon went on, is that things were going along smoothly and the application was going to be approved until some members of the public “raised the issue that these are Muslims and they are going to be praying out there.”

Pandak said it was sheer speculation that citizens who made the incendiary remarks were in cahoots with county board members.

“Apparently what triggered the litigation were negative comments by random citizens and everybody’s ears perked up—it must be discrimination,” she said. “If that’s all it takes for a discrimination case, we are in some very unfortunate times.”

Pandak further argued that the Justice Dept. lawsuit inaccurately alleged that the county, in denying the permit, violated the Religious Land Use and Institutionalized Persons Act. She said the legislation pertains to land use matters and that sewer permitting is not land use, but a health regulation issue.

Moon thought it was splitting hairs, asking how could anyone develop any property without a proper sewer system. He again asked why all the other applicants didn’t have to investigate other options and what the alternatives were.

Pandak said “mini sewer systems” could be placed on properties for $25,000.

“It sounds like it would be substantially more expensive,” Moon said.

Pandak said it would be a better solution.

Eric Treene, special counsel for religious discrimination in the Justice Department’s Civil Rights Division, argued for the United States at Wednesday’s hearing saying the Culpeper County Board of Supervisors used its pump-and-haul process to deny a land use that the county did not want.

In seeking to get sewer service to the mosque site, the Islamic Center was told by the health department that pump-and-haul was the only way to go, he said, adding that the county administrator and then-board chairwoman also informed the group that getting approval for such was routine procedure.

Without a sewer permit, there is no site plan approval or building permit issued, Treene said. The United States claims discrimination in the case based on a number of factors, he said, including a departure from precedent, a routine procedure being denied, emails from the county administrator questioning why the request was being subject to greater scrutiny and the former board chairwoman alleging that the Islamic Center was being treated unfairly.

Treene also referenced an email from “local civic leader” Kurt Christensen, present at Wednesday’s hearing, that questioned the construction of a mosque in Culpeper. The attorney said there was evidence that constituents took board members out to lunch to discuss the matter and that “naked animus” was expressed against Muslims at a local public hearing.

Moon, in his closing remarks, said Culpeper County never had any problem with approving pump-and-haul permits before or shown that it was a less favorable system as it now claims.

“When all these other non-Muslim people came in, it was fine,” the judge said. “But then you find out they were Muslims, oh it’s not going to be routine anymore—we’re going to look at different factors for you.” Moon said the United States had some evidence in the case “that someone might decide it is discrimination.”

“If you can’t get the permit because you have an unpopular religion do you have a case that would trigger (the Religious Land Use and Institutionalized Persons Act)?” he asked. “Why is pump-and-haul so unacceptable? They are routinely granted.”

Moon said the method of waste disposal is very common in the Lynchburg area—where his office is based—due to the terrain. Pandak said maybe in the past pump-and-haul systems were routinely granted, but not now and that it was “not the proper way to deal with human waste.”

About two dozen spectators crammed into the small courtroom in the federal courthouse in Charlottesville for the one-hour hearing Wednesday. In attendance were County Administrator John Egertson, County Board Chairman Jack Frazier, former Board Chairwoman Alexa Fritz and local zoning board member Francis Updike.

Mohammad Nawabe, with the Islamic Center of Culpeper, also attended; he submitted the pump-and-haul application for the planned mosque site more than a year ago. Local Muslims currently meet for prayer in a small house on his used car lot.

Outside after the hearing, Frazier said he felt it went well and that he did not think the county was being unfairly targeted. He said county citizens had a right to free speech.