Stafford supervisors have once again changed the county zoning ordinance pertaining to cemeteries, this time in the shadow of a lawsuit filed against the county by the U.S. Department of Justice.
New cemeteries will now need to be at least 656 feet from private wells, and will need to obtain a conditional use permit to be built. Before the changes earlier this month, cemeteries were allowed by right in some zoning categories, and the setback from private wells was 900 feet.
When the All Muslim Association of America bought a parcel on Garrisonville Road for a new cemetery in 2015, it was a by-right use of the property and the setback from private wells was 100 feet, a standard the Virginia Department of Health still recommends.
Stafford officials made the ordinance more restrictive 18 months after the AMAA purchased the Garrisonville Road property, which is when the county adopted the 900-foot setback requirement from private wells. That change prompted accusations of religious discrimination that led to a DOJ investigation and, eventually, legal action.
According to the 57-page federal lawsuit filed in June on behalf of the AMAA against the county and its supervisors, the AMAA paid $800,000 in 2015 to purchase land in the 1500 block of Garrisonville Road. The group made the purchase after inquiring and receiving confirmation from the county that the property was zoned for cemetery use by right.
The lawsuit alleges local officials agreed to investigate a complaint from a neighboring property owner whose well was 200 feet from the property, and “almost immediately, county officials were informed by the Virginia Department of Health that the proposed cemetery, if separated from the private well by at least 100 feet, would pose no harm.”
But county officials “refused to heed this guidance,” the lawsuit states, and “embarked on a campaign to change the law to prevent its development.”
“We had reasonable expectations to use the entire property,” said Melanie Yanez, special counsel with Milibank, the firm representing the AMAA, a Virginia-based organization that provides low-cost burial and funeral services to Muslims in the region. There has been an AMAA cemetery on Brooke Road in Stafford for more than 20 years, but it has reached capacity.
Lawyers for the AMAA argue, in part, that the new rules passed in 2016 not only ignored the Code of Virginia by greatly exceeding its requirements, but the changes were made without any scientific analysis or study.
The latest update to the ordinance seemed to be an effort to answer that criticism. Stafford supervisors paid Environmental Consulting Services $35,000 to complete a survey and recommend new cemetery regulations. The company said its recommended 656-foot default distance from potable wells was “a more appropriate, scientifically-defensible setback distance.”
“We don’t know why the county, again, changed the ordinance in a way that’s still inconsistent with the advice of the Virginia Department of Health .... It still violates our legal rights,” said Yanez. “We can surmise that it’s to deflect attention away from our claim.”
But Supervisor Crystal Vanuch, who lives across the road from the proposed cemetery property, said the latest ordinance change was necessary to “protect drinking water, nothing more, nothing less, based on the data we have.”
Attorneys for the AMAA allege the campaign to change the ordinance in 2016 was spearheaded by Vanuch, who was chairwoman of the Stafford’s Planning Commission at the time.
Local businessman Paul Milde, who was a county supervisor in 2016, said supervisors rushed to approve the cemetery ordinances, which he says were brought to the board as an agenda item by former Supervisor Wendy Mauer, “under the guise as a housekeeping item.” Milde said supervisors were told the update had to be made to bring the county into compliance with state law.
“[Vanuch and Mauer] never told us there was a cemetery being built there, that’s the problem here,” said Milde. “They hurried up and changed the law and that’s not fair to do that to people who, in good faith, have been operating a cemetery on Brooke Road for nearly 20 years.”
The lawsuit filed against the county claims the 2016 ordinance was “discriminatory, arbitrary, and imposes a substantial and impermissible burden on the exercise of religious freedom in violation of the Religious Land Use and Institutionalized Persons Act of 2000, the U.S. and the Virginia Constitutions, and Virginia’s Dillon Rule.”
On Aug. 18, supervisors voted 5–2 to reduce the 900-foot setback to 656 feet. Supervisors also approved an amendment to require conditional use permits for new cemeteries, enforce a setback of 100 feet from certain reservoirs and streams, and included a state code requirement of total consent for new cemeteries from surrounding property owners.
Yanez said none of the county’s new ordinances applied when the land was first purchased by the AMAA five years ago, and the state code requiring “neighbor consent” has always been in place.
“That’s hasn’t changed; that’s always been the case and we know we have to comply with that,” said Yanez. “We have always had every expectation to comply with the Virginia requirement and have consistently asserted that the proposed cemetery complied with state code.”
Yanez also said that at the time of the original purchase, there was no discretionary process in place.
“And now the county has completely overhauled that to make us have to jump through hoops that wouldn’t have happened before,” she said.
Supervisor Gary Snellings, who voted against the latest changes, questioned what role supervisors would play if asked to weigh in on future cemetery proposals.
“If the residents of a community have the authority in Virginia law to reject a cemetery, why are we even here? It’s going to be up to that community, it’s not going to be up to this board,” said Snellings. “I don’t understand why we continue down this path ... It’s the wrong path.”
Yanez said the county filed a motion in June to dismiss the federal lawsuit. The motion, she said, argued that the county was in the process of amending its local cemetery ordinance in an effort to help invalidate the case in federal court.
“Nothing the county does now is going to change the harm already inflicted upon the AMAA,” said Yanez. “We’ve suffered a lot of damage already, and we’ve been subjected to a substantial burden since they changed the ordinance in 2016.”
Supervisor Mark Dudenhefer, who also voted against the latest changes to the ordinance, didn’t try to defend the decision.
“Since I have been on this board, I believe the actions of the board are reckless, and that the citizens in Stafford are going to be the ones who suffer,” he said. “I honestly believe we’re going to be taken to the cleaners by the Justice Department and by the lawyers for the AMAA.”
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