A recent phenomenon in permitting litigation is the growth of “class of one” equal protection claims by developers and homeowners against local officials for the denial of permits or related adverse treatment.
Civil rights litigation against municipalities is not new, but alleged violations of the Constitution’s Equal Protection Clause have traditionally been based on the plaintiff being treated differently because of his or her membership in a class, such as race, religion, gender or national origin. In contrast, “class of one” plaintiffs allege that they were singled out for treatment different than others similarly situated because of the illegitimate personal animus of local officials, and that the decision was wrongfully based on the applicant instead of the application.
Village of Willowbrook v. Olech
The influx of these cases in land use matters follows a unanimous 2000 Supreme Court case, Village of Willowbrook v. Olech. The case began, simply enough, when Grace Olech and her late husband, Thaddeus, of the Chicago suburb of Willowbrook, Ill., asked to be connected to the village’s water supply in 1995 after their private well failed. The village demanded a 33-foot wide easement before installing the water main, despite the fact that other homeowners had been required to grant only a 15-foot easement.
The Olechs refused and obtained water from a hose connected to a neighbor’s house until it froze and cut off their water supply. The village eventually agreed to accept a 15-foot easement, but the Olechs went without running water for the winter before they could be connected. Grace Olech later sued the village, its president, and the director of public services in federal court, claiming that the demand for the larger easement was “irrational and wholly arbitrary” and motivated by ill will toward them arising from an earlier, unrelated lawsuit against the village.
The village quickly succeeded in getting the case dismissed, but Olech succeeded in getting it reinstated by the appellate court. The Supreme Court did not decide the merits of the case, which had not gone to trial, but whether Olech could even sue for an equal protection violation without being a member of a class. The court ruled that she could. The allegations that the village demanded a larger easement than that required of other homeowners, that the reasons for the demand were “irrational and wholly arbitrary” and that the smaller easement was clearly sufficient to connect the property to the water supply were enough to state a claim that the Olechs had been denied equal protection of the law.
The decision alarmed municipalities because it suggested that any difference in treatment among property owners could land them in federal court. Responding to concerns that the decision could transform “run-of-the-mill zoning cases into cases of constitutional right,” Supreme Court Justice Stephen Breyer wrote a separate opinion that has shaped the way lower courts treat these cases. Breyer noted that zoning decisions usually, if not always, treat one landowner differently than another, which is not by itself unconstitutional. The case did not mean that any difference in treatment between property owners violated equal protection, Breyer reasoned, because the “extra factor” – the allegation of illegitimate personal animus toward the Olechs – distinguished it from the ordinary.
Close to Home
A recent Massachusetts case illustrates the type of case that succeeds. In Tapalian v. Tusino, the plaintiff, a developer, applied to build a subdivision and was denied because the proposed access road was too narrow. He later reached an agreement with the town, which allowed the subdivision if he widened a portion of the access road and repaved it using a specific town-approved process.
After the agreement was in place, the town’s new public works director imposed additional, expensive road improvement requirements that went far beyond the town’s agreement and, most importantly, the standards imposed on another subdivision developer at roughly the same time. Fortunately for the plaintiff, the public works director had actually told others that he was deliberately making life difficult for the plaintiff and had made other outrageous demands on the developer that demonstrated his ill will. A jury awarded the developer more than $200,000 for the violation of his constitutional rights. The verdict was upheld on appeal and has spawned additional litigation.
The Supreme Court may have opened the door a little with the Olech case, but lower courts have maintained their historical reluctance to finding constitutional violations in ordinary permitting cases. Indeed, even Grace Olech found this out – when her case eventually went to trial, the jury decided against her. Federal courts in this circuit have been particularly resistant to “constitutionalizing” land-use cases by scrupulously requiring evidence of “clear and intentional discrimination.” State appellate courts have similarly said that constitutional violations will only be found in “truly horrendous situations.”
The high hurdles to success have not stopped hundreds of dissatisfied permit applicants from filing “class of one” cases nationwide since the Olech decision, however. Results have been mixed, in large part because lower courts have been fairly consistent in holding plaintiffs to the high standards of proof required to make out a violation – particularly the “similarly situated” requirement – and because direct evidence of personal bias or ill will is seldom found in the public record of a case.
The “similarly situated” component acknowledges the reality that a court cannot determine if someone has been denied the equal protection of the law unless the actions can be compared to the treatment to others. Finding similarly situated property owners to serve as the comparison cases can be challenging because all real property is unique, the size and scope of proposed projects vary widely and it is not necessarily improper that some property owners receive permits while others are denied.
Class of One
Although the constitutional right to own, use and enjoy property underlies all zoning and land use regulation, most cases do not involve a trip to the Supreme Court. Litigation to appeal the denial of a permit, either in court or to an administrative agency, or defend a permit against a challenge by abutters, is common. In the rough-and-tumble world of real estate development and local politics, property owners understand that opposition to their plans is possible, even likely, especially on hot-button issues, such as traffic, design or environmental impact. There is rarely a constitutional dimension without evidence that the permit-granting authority had an illegitimate motive to make a decision based on the applicant instead of the application.
Despite the challenges to suing as a “class of one,” the rise in the number of cases filed may be the result of frustration with the difficulty of traditional challenges to unfavorable permitting decisions. Massachusetts courts are reluctant to overturn local permitting decisions unless they are arbitrary, exceed the board’s authority, or are based on some clear error, such as applying the wrong by-law. The difficulty of appealing permitting decisions on the merits has led unsuccessful applicants, especially those with a long or contentious history with local officials, to investigate and pursue, as they should, indications that an improper motive was at work. Adding to the attraction is the possibility, under federal civil rights laws, of recovering attorney’s fees if successful in proving a violation of a constitutional right.
State law gives most local permitting authorities some discretion, sometimes broad discretion, over proposed projects. Although local board members are often volunteers, their power to regulate the use and enjoyment of property is a government function that carries with it the constitutional responsibility to afford applicants due process and equal protection of the laws. The availability of “class of one” equal protection claim is not, by any measure, a remedy for all unfair treatment by local authorities, but it is as an important check on the improper exercise of their discretion.
