1. Complaint Based Zoning Enforcement and the Equal Protection Clause Laine Sklar Senior Assistant Town Attorney Town of Marana lsklar@maranaaz.gov

2. Willowbrook v. Olech  Willowbrook v. Olech, 528 U.S. 562 (2000) – The Olechs applied to have their property connected to the municipal water supply. The Village of Willowbrook conditioned the connection on granting a 33 foot easement. The Olechs objected because the Village had only required a 15 foot easement from other property owners. Three months later the Village agreed to connect the Olechs with a 15 foot easement. – The Olechs sued claiming the initial demand for the 33 foot easement violated the Equal Protection Clause because it was irrational and wholly arbitrary, and that it was motivated by ill will due to the Olechs previously filing a successful lawsuit against the Village.

3. Willowbrook v. Olech  Class of One Equal Protection Claims – A successful plaintiff must allege that she has been intentionally treated differently from others similarly situated, and that there is no rational basis for the difference in treatment.  The Supreme Court found that analysis applicable in Olech – The Village demanded a 33 foot easement from the Olechs, where it only required a 15 foot easement from other similarly situated property owners – The demand was alleged to be irrational and wholly arbitrary – The Village ultimately connected the property after receiving the 15 foot easement, showing the adequacy of the standard requirement

4. Willowbrook v. Olech  Ill Will – The per curiam opinion did not reach the issue of subjective ill will that was relied on by the Court of Appeals, stating that the other allegations were sufficient to state a claim for relief – Justice Breyer’s concurrence relied on the “ill will” factor, stating its presence should minimize concern that the case would transform run of the mill zoning cases into cases of constitutional right

5. 9 th Circuit Cases since Olech  Erickson v. County of Nevada, 2013 U.S. Dist. LEXIS 43007, 7-8, 2013 WL 1279167 (E.D. Cal. Mar. 26, 2013). – Plaintiffs and Verizon both sought to build on a “visually important ridgeline.” Verizon’s permit was granted, Plaintiff’s permit was not. – The Court pointed out that the two sought distinct permits from the County to build different structures even though they were both building along the same ridgeline: Plaintiffs sought a permit for a residence, while Verizon sought a permit for a communications tower. – Additionally, the two permits were controlled by two different regulations. – The court found that “unlike the plaintiff in Olech who sought the same type of water service as the other property owners, Plaintiffs here are not similarly situated to Verizon.”

6. 9 th Circuit Cases since Olech  Teixeira v. County of Alameda, 2013 U.S. Dist. LEXIS 36792, 11-12 (N.D. Cal. Feb. 26, 2013). – Plaintiffs sought to open a gun store in Alameda County. The County had a regulation that a gun store cannot be located within 500 feet of residentially zoned areas and certain kinds of schools and businesses. – Plaintiffs measured the distance from their front door to the front door of the nearest residence and found that it was more than 500 feet. – The County performed their measurement and found that the gun store was within 500 feet of a residentially zoned area. The County performed their measurement from the front door of the closest house in the neighboring residential zone to the closest part of plaintiffs' building. – Plaintiffs brought a class of one equal protection claim. The claim failed because Plaintiffs failed to allege sufficient facts indicating that defendants intentionally treated plaintiffs differently from other similarly situated businesses without a rational basis. Plaintiffs' conclusory assertions that the defendants have not engaged in unreasonable measurements against similarly situated businesses and/or the defendants have granted conditional use permits and variances to similarly situated businesses" are not enough.”

7. 9 th Circuit Cases since Olech  Scocca v. Smith, 2012 U.S. Dist. LEXIS 87025, 14, 2012 WL 2375203 (N.D. Cal. June 22, 2012). – Plaintiff applied for a concealed carry permit. Under the California Penal Code, the sheriff may issue to a person a license to carry a concealed weapon upon proof that, inter alia, "the person applying is of good moral character [and] that good cause exists for the issuance. The sheriff denied the Plaintiff’s permit. – Plaintiff asserted that the sheriff improperly denied his application because his good moral character is "functionally equivalent" to that of the seventy persons whom the sheriff has licensed, and his good cause is also "functionally equivalent" to that of the seventy persons whom the sheriff has licensed. – Plaintiff’s claim failed because he failed to specifically identify how he was similarly situated to others. The Court cited with approval Ruston v. Town Bd. for the Town of Skaneateles, 610 F.3d 55 (2d Cir. 2010), which states “[c]lass-of-one plaintiffs must show an extremely high degree of similarity between themselves and the persons to whom they compare themselves.”

8. 9 th Circuit Cases since Olech  Mead v. City of Cotati, 2008 U.S. Dist. LEXIS 94238, 32-34, 2008 WL 4963048 (N.D. Cal. Nov. 19, 2008). – Plaintiff applied to build four duplexes on lots he owned on Cotati, CA. While his application was pending, Plaintiff became aware that as a condition of his permit he would be required to comply with the City's affordable housing plan, which required that each residential development be designed and constructed to provide at least 20 percent of the total units as inclusionary units restricted for occupancy by moderate-, low- or very low-income households. – The Plaintiff’s claim failed due to the fact that he did not establish that he had been treated differently from similarly situated individuals. The Plaintiff did not allege that he was treated differently than other developers with similar project proposals. – The Court found that his claim appeared to be based on his view that developers are being forced to subsidize housing for low- and moderate-income individuals, whereas other taxpayers are not. The Court explained that individuals pursuing development projects are not situated similarly to other taxpayers, in that they are in a unique position to create affordable housing. Furthermore, the Court found that requiring developers to set aside twenty percent of new housing for low- and moderate-income individuals is rationally related to the City's interest in increasing the amount of affordable housing within its limits.

9. How does this relate to Complaint Based Zoning Enforcement?  By pursuing complaint based zoning enforcement, municipalities are not necessarily treating likes alike  This could open the door to class of one equal protection claims  In order to avoid these claims, when a municipality receives a zoning complaint, the municipality should evaluate whether there are similarly situated properties that are also in violation. If that is the case, enforcement action should be taken against all similarly situated violators

10. Good news, bad news  Bad news first – Although Justice Breyer’s concurrence in Olech, arguing for an “ill will” factor, has been cited with approval here and there, it isn’t binding at this point in time. So, an equal protection claim could still be successful even if the municipality is not acting in a vindictive manner or as a result of animus toward the Plaintiff  The good news – It is very difficult to prove that one is similarly situated. Plaintiffs must be able to show specifically what makes them similarly situated to someone else who was treated differently – The municipality’s action must be intentional for a claim to be successful, so if your failure to treat likes alike is unintentional due to a lack of knowledge that the likes exist, you should be okay