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Zoning, Land Use, and The Equal Protection Clause

The Equal Protection Clause of the Fourteenth Amendment provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV § 1. The United States Supreme Court has explained that the purpose of the Equal Protection Clause is “to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.” Willowbrook v. Olech, 528 U.S. 562, 564 (2000). In essence, the Equal Protection clause directs that all persons similarly situated should be treated alike. Action by a local government (whether a township, city, or other municipality) that violates the Equal Protection Clause may give rise to liability.

Such liability will depend on the type of action and the individual making the claim. Where an individual is a member of a protected class, or if a particular zoning ordinance touches on an inherently suspect classification (such as race, religion, etc.), the local government will have to satisfy what is known as strict scrutiny in order to avoid liability – requiring a showing that an ordinance is precisely tailored to further a compelling government interest. This type of claim may arise in a variety of situations. For example, where a religious institution is treated differently from secular entities in applying for site plan approval for a new facility, there may be an Equal Protection violation in the absence of any compelling government interest served by the disparate treatment.

If an individual is not a member of a protected class, or where an ordinance is not drawn on an inherently suspect classification, an individual representing a “class of one” may still bring an Equal Protection claim where the government treated him or her differently from others similarly situated. To succeed on a class of one claim a plaintiff must also establish that here was no rational basis for the disparate treatment. The hallmark of a class of one Equal Protection claim is the requirement that the plaintiff be intentionally treated differently from other individual property owners who are similarly situated in all material respects. In determining whether individuals are similarly situated, courts do not demand exact correlation, but instead seek relevant similarity. This means that the question of materiality is not evaluated in a vacuum. Ultimately, the degree to which others are viewed as similarly situated depends on the facts and context of the particular case. For example, where two homeowners apply for a setback variance, and their properties do not have any unique differences, the denial of one homeowner’s request may give rise to an Equal Protection claim where there is no rational basis.

To establish an absence of any rational basis for disparate treatment, the second element of a class of one Equal Protection claim, a plaintiff can make this showing “either by negativing every conceivable reason for the government’s actions or by demonstrating that the actions were motivated by animus or ill-will. These fact-intensive elements require evidence that is not always simple to gather. To that end, requests for records under the Freedom of Information Act, depositions, and other discovery devices will be imperative in putting together an Equal Protection claim.

The attorneys at Dalton & Tomich have successfully litigated Equal Protection claims across the country, in both state and federal courts. If your rights under the Equal Protection Clause have been violated, you can contact us today to discuss your options.

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