Judicial Deference to Local Land Use Decisions and the Emergence of Single-Class Equal Protection Claims

John C. Cooke and Christine Carlisle Odom

Mr. Cooke and Ms. Odom practice with the law firm of Womble Carlyle Sandridge and Rice, PLLC, in its office in Raleigh, North Carolina. They specialize in real estate litigation, land use, local government issues, and regulatory issues at the local, state, and federal levels. Mr. Cooke graduated in 1978 from the Wake Forest University School of Law. Mr. Cooke served as a county attorney for Wake County in North Carolina for five years, and has been in private practice since 1983. Ms. Odom has been in private practice since graduating from the University of Georgia School of Law in 1995. The authors were assisted in the drafting of this Dialogue by Andrew Foster, who graduated in May 2000 from the University of North Carolina at Chapel Hill.

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[30 ELR 11049]

To the extent the city argues that, as a matter of law, its landuse decisions are immune from judicial scrutiny under all circumstances, its position is contrary to settled regulatory takings principles. We reject this claim of error.¹

When a property owner challenges a land use decision in court, local governments urge the courts to defer to their local control and land planning expertise. In making such pleas, they generally contend that their decisions are local policy decisions over which they should have exclusive control. While the courts afford broad deference to local government land use decisions,² the experienced land use lawyer recognizes that, in many ways, the strong statement of the U.S. Supreme Court quoted above merely affirms a work in progress. Over the past 20 years, the courts have articulated through various decisions how settled federal constitutional limitations on governmental action apply in the land use law context.³ Even though this work progresses, from most clients' perspectives, the local government still seems to possess the unfettered right to do whatever it wants—no matter what the courts say. This Dialogue focuses on several recent decisions involving governmental bad faith in the administration and application of land use regulations and the emergence of the single-class equal protection claim as a legal theory to address governmental bad faith.

Background

In San Diego Gas & Electric Co. v. City of San Diego,⁴ Justice Brennan suggests, in a regulatory taking context, that applying constitutional limitations to land use regulations "would help to produce a more rational basis of decisionmaking."⁵ This assumption gives rise to Justice Brennan's well-known rhetorical question: "After all, if a policeman must know the Constitution, then why not a planner?"⁶ Even though the risk of having to pay for a regulatory taking may have rationalized the government's land use process somewhat, instances of irrational land use decisions seem to abound as land use regulation grows in complexity and is used to achieve a variety of newly defined public "goods." Consequently, courts continue to be faced with a number of cases claiming that the government's land use decision was constitutionally flawed in some manner.

Because of the intrusive nature of land use regulation on private-property rights, affected citizens view the government's action as a taking or some sort of procedural or substantive Due Process Clause violation. For this reason, the landowner typically focuses his efforts primarily in the areas of regulatory takings or due process. Generally, an equal protection claim is included as the last or weakest claim unless [30 ELR 11050] the plaintiff is a member of a specially protected class such as mentally or emotionally handicapped children.⁷

Several recent decisions signal that courts are prepared to redress improper land use decisions by applying constitutional limitations to a broad array of land use decisions. First, in February 2000, the Court affirmed by a per curiam opinion that a "class of one" may make out a proper claim under the equal protection clause when challenging the land use decision of a local governing board.⁸ Second, in May 1999, the Court affirmed a $ 1.45 million jury award where a jury found that the repeated denial of the landowner's development plan effectuated a regulatory taking.⁹ Third, in February 1999, the Iowa Supreme Court affirmed a lower court's order directing the city of Des Moines to issue a permit for a business use, even though the use was prohibited by the city's current ordinance.¹⁰ The basis for this decision was the city's bad-faith treatment of the plaintiff's special use permit application. Fourth, in June 1999, the Supreme Court of Connecticut determined that a landowner had presented evidence sufficient to support a prima facie case of an equal protection violation by the local governing board.¹¹ Accordingly, the Connecticut Supreme Court reversed the trial court's dismissal of the landowner's claim. Taken together, these cases affirm that proper governmental actions do not include: changing the rules mid-stream for reviewing an application, adding new or additional hurdles to the approval, demanding concessions not demanded of similarly situated applicants, and repeatedly denying meritorious applications. As a result, they support the proposition that courts will scrutinize local government land use decisions where a property owner alleges that he has been the victim of such improper or inequitable treatment by the government.

Government Bad Faith and the Emergence of Single-Class Equal Protection Claims

Recently, courts have indicated a recognition of governmental bad faith in the land use context and a willingness to address it. Because of the complexity and parochial nature of land use regulations, governmental bad faith arises in a myriad of fact patterns. Depending upon the particulars of a case, the courts use a variety of legal theories to limit such governmental action.

Extractions and Governmental Extortion

In the cases of Nollan v. California Coastal Commission¹² and Dolan v. City of Tigard,¹³ the Court developed the exaction theory.¹⁴ The exaction theory limits the use of extortion by the government in the context of issuing land use permits. The Court has recognized that it is entirely proper for the government to have a permit program and to limit the development of land through such regulations. Likewise, governments may require the applicant to convey to the government at no cost to it some interest in the applicant's property so long as the conveyance is roughly proportional to the impact of the applicant's project. However, when the government uses its land use permit program as a means to require an applicant to convey an interest to the government to solve an overall public problem, then the effect of the condition is to take the applicant's property for a public purpose. In short, the Nollan/Dolan theory recognizes that sometimes governments, in bad faith, use a valid land use regulatory program as a means to achieve a taking without paying just compensation.¹⁵

Misapplying and Changing the Rules in Bad Faith

Although in a very different factual context, bad faith was the focus of the Iowa Supreme Court in the recent case of U.S. Cellular Corp. v. Board of Adjustment of City of Des Moines.¹⁶ In U.S. Cellular Corp., the court was confronted by governmental bad faith in the context of changing the rules after improperly denying a special use permit. U.S. Cellular applied for a special use permit to construct a cellular tower in a C-0 commercial zone. Even though the evidence submitted by U.S. Cellular at the public hearing established its entitlement to the permit under the existing ordinance, the government decisionmaking board denied the application and refused to issue the permit, apparently applying a proposed ordinance when judging the application. The trial court reversed and found that the government had acted in bad faith and with malice.¹⁷ Further, the court refused to remand the case to the government, but rather ordered the government to issue the special use permit. Apparently, at some point after refusing to issue the permit the government formally changed the ordinance so that cellular towers are not allowed at all in the C-0 commercial district. Des Moines appealed the district court's decision and contended that the court could not order issuance of a permit when the current ordinance prohibited the use.

Generally, governments are not bound to honor a permit issued earlier if the permit is not allowed under its current ordinance, except when the property owner has established a vested right to complete the project under the permit. In this case, U.S. Cellular could not have taken steps to vest a right to complete the project because it had not received a permit. Therefore, it did not have a vested property right to complete its development. Nevertheless, the court found [30 ELR 11051] that the city acted in bad faith. Because of this bad faith, the court ordered the city to issue the permit to U.S. Cellular, even though its issuance is prohibited under the city's current zoning ordinance.

The court relied on several out-of-state cases and concluded that these cases stood for the principle that when the zoning authority acts "illegally to deny or delay the granting of a permit," and "thereby prevent[s] the applicant from acquiring vested rights to complete the project" before any amendments to the ordinance become effective, the courts will apply the ordinance existing at the time of the application.¹⁸ In short, "due to the [government's] bad-faith denial of U.S. Cellular's request for a special permit, this appeal is governed by the ordinance in effect at the time of the [government's] decision."¹⁹

Changing the Approval Standards in Bad Faith

Although resting upon the theory of regulatory takings, the case of City of Monterey v. Del Monte Dunes at Monterey, Ltd.²⁰ reveals governmental bad faith and the Court's reaction to it.²¹ In Del Monte Dunes, the city of Monterey repeatedly rejected various development plans presented by the owner. At the risk of over simplifying the facts, the history of the interactions between the city and the owner demonstrated the following pattern: (1) the owner submits a development plan, (2) the city denies approval and indicates that if the owner revises the proposal, the revised proposal will be favorably received, (3) the owner incorporates these revisions and refiles for approval, and (4) the city again denies approval and indicates a new round of suggested revisions. Ultimately, the owner gave up, sold the property and sued the city. The jury awarded the owner $ 1.45 million and the city appealed.

While much of the Court's opinion addressed whether a trial by jury is available in a regulatory takings case, the Court's decision to affirm the jury's award is significant because it demonstrates that the doctrine of regulatory taking is not brittle and formalistic. Courts can and will intervene in land planning disputes when governmental bad faith is apparent and will apply the regulatory takings concept so as to discourage governmental bad faith.²²

Unlike Lucas v. South Carolina Coastal Council,²³ where the government absolutely denied all development of the property and, therefore, denied all reasonable economic use of it to the owner, the city of Monterey never took an absolute position with regards to the owner's development of the property. Since theoretically a reasonable economic use of the property was available to the owner (upon the submission of a plan which the city would accept), the owner also had to satisfy the requirement that these denials constituted a final decision and that there was in fact no "mutually acceptable solution . . . with regard to [the] individual properties. . . ."²⁴ For these reasons, the city contended that the Court should defer to its land planning expertise. The Court flatly rejected this contention. Del Monte Dunes' takings claim was ripe, even though it could have submitted additional applications to the city of Monterey.²⁵ At oral argument, several of the Justices asked questions and made statements such as, wasn't the landowner "getting jerked around?" and "you begin to smell a rat, and at that point can't we say, despite our normal rational basis review, there's some other factor that begins to come in here, and that is, at some point you can say, this is simply unreasonable."²⁶ Both the jury and Court recognized that the facts in the case portrayed a government acting in bad faith by playing a shell game with the owner—the approval was always under the next set of revisions. Neither the jury nor the Court liked what they saw and the city's plea for judicial deference rang hollow.

Del Monte Dunes and a Glimpse at Single-Class Equal Protection Claims

At the trial, the jury was instructed that it should find for Del Monte Dunes if it found that the city's action either (1) deprived Del Monte Dunes of all economically viable uses of its property, or (2) that the city's actions did not substantially advance a legitimate public purpose.²⁷ The jury found both facts. In essence, the jury found that the city's repeated denials of Del Monte Dunes' applications did not bear a reasonable relationship to a legitimate public purpose and, as a result, found that these repeated denials constituted a regulatory taking.²⁸

The city contended that the second prong of the jury instruction allowed the jury "to second-guess public land use policy."²⁹ The Court did not reject this "either or" instruction.³⁰ Instead, the Court found that "whether a landowner [30 ELR 11052] has been deprived of all economically viable use of his property is a predominantly factual question."³¹

In explaining that the determination of whether a land use decision substantially advances legitimate public interests is an important factual inquiry, the Court relied upon Yee v. City of Escondido.³² In Yee, the property owner asserted a takings claim but did not assert an equal protection claim or substantive due process claim. Yee's claim was that the interplay between the rent control ordinance, the "unusual economic relationship between park owners and mobile home owners" and the mobile home residency law effected a regulatory taking.³³

In Yee, the Court contrasted a physical takings claim with a regulatory takings claim. According to the Court, compensation is required in a regulatory takings claim "only if considerations such as the purpose of the regulation or the extent to which it deprives the owner of the economic use of the property suggest that the regulation has unfairly singled out the property owner to bear a burden that should be borne by the public as a whole."³⁴ Because the plaintiffs had not actually tested the statute's application to any particular property,³⁵ the Court "confined itself to the face of the statute"³⁶ and held that the statute on its face did not constitute a regulatory taking. The Court indicated that "a different case would be presented were the statute, on its face or as applied, to compel a landowner over objection to rent his property or refrain in perpetuity from terminating a tenancy."³⁷

In Del Monte Dunes, the petitioners had run the gauntlet and asserted an equal protection claim that "it had received treatment inconsistent with zoning decisions made in favor of owners of similar properties."³⁸ The jury delivered a separate verdict, finding in favor of Del Monte on its equal protection claim and the trial court sustained the verdict. The Ninth Circuit did not reach Del Monte's equal protection claim because it upheld the verdict on the regulatory takings claim.³⁹ The Court concluded that "the understanding of the jury and Del Monte Dunes [was] that the complaint was not about general laws or ordinances but about a particular zoning decision."⁴⁰

In responding to the city's claim that the jury invaded its local authority and expertise, the Court stated that

to the extent Del Monte Dunes' challenge was premised on unreasonable governmental action, the theory argued and tried to the jury was that the city's denial of the final development permit was inconsistent not only with the city's general ordinances and policies but even with the shifting ad hoc restrictions previously imposed by the city. Del Monte Dunes' argument, in short, was not that the city had followed its zoning ordinances and policies but rather that it had not done so.⁴¹

As demonstrated by these cases (and perhaps unlike the situation 20 years ago when Justice Brennan asked his rhetorical question about planners knowing the U.S. Constitution), planners and other governmental officials involved in land use decisions know the rules about constitutional limitations on their decisions very well. Because of this knowledge, governmental decisionmakers and their advisors rarely take absolute positions and frequently cloak the basis for making a particular decision. They know that the Constitution as defined by the Court requires the landowner to "run the gauntlet." Accordingly, if the landowner is denied a permit, he must present an evidentiary demonstration that in fact there was no meaningful chance of a mutually acceptable solution between the government and the landowner regarding how a "particular regulation will apply to the landowner's individual property."⁴² Because of these rules, many of the harms inflicted by the government arise when the government applies these increasingly complex and multipurposed land use regulations to particular applicants or property to achieve governmental ends unrelated to the impact of the landowner's project, to damage a landowner because of personal animus or the history of the property. The emergence of a single-class equal protection claim responds to this evolving set of problems, and may offer a broad remedy to the problem of the government knowing constitutional limitations and finding ways to achieve the government's desired outcome by bad-faith application of applicable land use ordinances.

Single-Class Equal Protection Claims in the Land Use Context

The Equal Protection Clause prohibits a state from denying "to any person within its jurisdiction the equal protection of the laws."⁴³ Although the clause requires a comparative analysis between similarly situated persons, it does not require the existence of any particular number of people or recognizably distinct group of people that are receiving unequal protection of the laws. In short, the clause does not prohibit single-class claims. To the contrary, the clause protects every individual.

In regard to the issue of a "class of one," the Court held in Village of Willowbrook v. Olech⁴⁴:

Our cases have recognized successful equal protection claims brought by a "class of one," where the plaintiff alleges that she has been intentionally treated differently [30 ELR 11053] from others similarly situated and that there is no rational basis for the difference in treatment.⁴⁵

Nevertheless, many of the best known equal protection cases involve discrimination against a distinct and recognizable group of people because of the practical problems associated with proving a denial of equal protection. All of these problems revolve around the comparative analysis required by the Equal Protection Clause. Issues such as defining similarly situated persons, allocating burdens of proof, and applying the concept of equality in a particular context are the real issues in these cases.

Because of the problems associated with the comparative analysis and in an attempt to recognize that "prejudice and antipathy—a view that those in the burdened class are not as worthy or deserving as others"⁴⁶ is a condition of society, the Court crafted rules that shortcut and simplify the comparative analysis, examining distinctions affecting a distinct class of people deemed by prejudice as not worthy or deserving as others. However, these rules rarely apply in land use cases. Instead, the discrimination arises from either the particular applicant's relationship with the government or its officers and officials, or the particular property owned by the applicant and the government's desire to use the property in a particular manner or for a particular use.

Recognizing that suspect class cases were not applicable to the facts in Olech, the Court found several taxpayer cases to be the most relevant precedent. The cases of Sunday Lake Iron Co. v. Township of Wakefield,⁴⁷ Sioux City Bridge Co. v. Dakota County,⁴⁸ and Allegheny Pittsburgh Coal Co. v. Comission of Webster County,⁴⁹ all involve single-member equal protection claims and the principles established in these cases seem relevant to understanding the basis for a single-member-class equal protection claim and the rules that are likely to apply to Olech-type claims.

In Sunday Lake Iron, the Court expressly recognized that the purpose of the Equal Protection Clause is to "secure every person against intentional and arbitrary discrimination whether occasioned by the express terms of a statute or by its improper execution through duly constituted agents."⁵⁰ Therefore, a single taxpayer that is discriminated against by the government as a result of "intentional systematic undervaluation" of other similar properties by governmental officials has an equal protection claim. However, "mere errors of judgment will not support a claim of discrimination."⁵¹ In addition to bad or erroneous judgment by governmental officials, there must be "something which in effect amounts to an intentional violation."⁵² Because the evidence did not "clearly"⁵³ establish that the government had "any purpose or design to discriminate"⁵⁴ and because the government and its agents are presumed to act in good faith,⁵⁵ the Court did not find an equal protection violation. When the government's action is not incompatible with an honest effort to address a new and difficult issue, the claim fails.

The cases of Sioux City Bridge and Allegheny Pittsburgh follow Sunday Lake Iron but have different holdings. In Sioux City Bridge, the Court reversed a Nebraska Supreme Court holding that a taxpayer was not entitled to a reduction of the valuation of his property and his only remedy was to compel the increase of valuation of similar properties so as to make the taxation system uniform. Based upon this analysis, the Nebraska court denied the taxpayer's claim. The Court reversed because in effect it "denied the injured taxpayer any remedy at all because it was utterly impossible"⁵⁶ to secure the increase of the valuation of property owned by others.⁵⁷ In short, the Court held that if an equal protection claim is shown, the injured citizen is entitled to real relief. Despite the availability of a real remedy, the Court remanded the case for a further evidentiary hearing on the "issue of discrimination." The Court believed that the lower courts had focused immediately on the remedy question and had not held an adequate evidentiary hearing on the government's liability. In connection with its remand, the Court reaffirmed the standards set forth in Sunday Lake Iron⁵⁸ applied in connection with this hearing.

In Allegheny Pittsburgh, the Court found an equal protection violation and ordered a real remedy. A local tax assessor in West Virginia used a twofold method of valuation. When a property was sold, the tax assessor used the sales price (reduced substantially) as the assessed value of the property. On the other hand, for properties that had not been recently sold, the assessor applied an old base assessment and a general annual increase in this base assessment. The taxpayer repeatedly complained about these methods to no avail. As a result of the local assessor's methodology, the taxpayer's property was assessed roughly 8 to 35 times higher than similarly situated properties. Under these facts, the Court found that the evidence showed "intentional systematic discrimination" against the taxpayer and that the taxpayer was entitled to a reduction of the assessed value of his property in order to eliminate this discrimination.

The Court stated that the use of two methods of assessment of the same property "without more, is of no constitutional moment."⁵⁹ The Equal Protection Clause, the Court noted, is focused on the effect or impact of the system on the taxpayer. As such, the clause "tolerates occasional errors of state law or mistakes in judgment."⁶⁰ The impact was intentional because the local tax assessor had "on her own initiative" used these methods for many years over the objection of the taxpayer and these methods. In fact, these methods seemed contrary to the guide published by the West Virginia Tax Commission. The impact was not merely temporary or transitory. At the rate of annual adjustment, uniformity would not be achieved for 500 years. Therefore, the relative [30 ELR 11054] undervaluation of comparable property "over time" denied the taxpayers the equal protection of the law.⁶¹

By relying upon these three taxpayer cases, the Court seems to be initiating a gradual process of defining single-class equal protection claims in the land use regulation context. For this reason, we should try to understand how this claim is likely to develop and where it fits into the growing case law relating to constitutional limitations in the land use regulation area.

The Future of Single-Member-Class Equal Protection Claims

A review of the underpinnings of Olech and the precedents used by the Court provides an indication of the standards applicable in land use cases. The courts will require a high standard of proof by the landowner, evidence of intentional bad-faith behavior by the government, and an unfair impact.

In Olech the Seventh Circuit reversed the trial court's dismissal of Mrs. Olech's complaint and remanded the case to the district court. In its decision, the court relied on a line of single-member-class equal protection cases developed in the circuit. The most prominent of these decisions is Esmail v. Macrane.⁶² There, the court indicated that the complaint stated a claim because it fell in a narrow group of cases of "vindictive action" by the government or its officials. The plaintiff was a liquor dealer who complained that his right to equal protection was violated when the local government's liquor control commissioner, who was also the mayor, refused to renew his liquor license due to a series of minor violations. Liquordealers whose licenses were renewed tended to have more serious violations. The Seventh Circuit recognized that on these facts alone the plaintiff did not state a claim for relief. However, the court found that the trial court's dismissal of the complaint was in error because Esmail alleged that the reason he was treated differently was the existence of "an orchestrated campaign of official harassment directed at him out of sheer malice."⁶³ Thus, the Esmail court explicitly recognized that "a class of one" could seek relief under the Equal Protection Clause where the sole class member is the victim of selective treatment based on malice.⁶⁴

Taking into account the Esmail analysis,⁶⁵ Justice Breyer's concurrence in Olech and the taxpayer cases cited by the Court in its per curium opinion in Olech, there seems to be two types of single-member class actions. First, under Esmail and Justice Breyer's analysis, a single-member-class equal protection claim arises when the government or its officials have a personal animosity or malice toward the property owner and this malice causes the government to selectively and unfairly discriminate against the landowner. With this type of case, there does not seem to be any requirement that the discrimination arises from a systemic impact. Instead, the discrimination arises from personal malice of one or more governmental officials and selective mistreatment. The cornerstone of these cases is evidence of personal animosity, a history of malice, a governmental official misusing his or her power in order to harm a particular citizen, and discriminatory mistreatment.⁶⁶

The recent case of Thomas v. City of West Haven⁶⁷ is an example of this type of single-member-class equal protection claim. In Thomas, the court found that the property owners had made a prima facie case of a violation of the Equal Protection Clause by presenting evidence sufficient to show that the city's Planning and Zoning Commission had "maliciously" and "selectively" treated their application unfairly.⁶⁸ In essence the court found that there was a triable issue of fact as to whether the government's "selective treatment" of the plaintiffs' rezoning application violated the equal protection clause.

The Connecticut court stated that to make a prima facie case of unconstitutional selective treatment a plaintiff must satisfy two elements. First, the plaintiff must allege that he was selectively treated as compared with others who are similarly situated. Second, he must allege that the selective treatment was based on an impermissible consideration. If the plaintiff does not allege that the consideration motivating the governmental action was his race, religion, or a desire to punish him for exercising his constitutional rights, then he must show that the "defendants maliciously singled [him] out . . . with the intent to injure him."⁶⁹ On the facts of [30 ELR 11055] the case, the Court found that the plaintiffs had met this burden and, as a result, it reversed the trial court's dismissal of the case and remanded it for trial.⁷⁰

In so holding, the Connecticut Supreme Court formulated the test for determining whether a plaintiff is similarly situated to others in a manner which practically allows this type of claim in the land use regulation context. The court found that a plaintiff must "identify and relate specific instances where persons situated similarly in all relevant aspects were treated differently."⁷¹ It observed that in the land use context, a property owner could meet this burden by showing that he was treated differently than others who made a land use application to the governmental body during the same general time period and who were subject to the same or similar rules and requirements.⁷² The court specifically rejected a strict test for similarity utilized in most equal protection claims, stating that

given the inherently unique characteristics associated with any parcel of land, and the numerous combination of zone changes that could be requested by an applicant, if we were to adopt the narrow focus undertaken by the trial court and advocated by the defendants, the officials and the purposes associated with the zone changes could be insulated significantly from the purview of the equal protection clause. We do not regard the equal protection clause as so narrow in scope.⁷³

The second type of single-member class action is established in the taxpayer cases cited by the Court in Olech. A single-member-class equal protection claim arises when intentional and systematic discrimination against a citizen exists. While the discrimination must be "intentional" and not an error of judgment by a state or local official, there is no requirement that the governmental action is personally vindictive or maliciously directed against a citizen for personal reasons. Instead, the discrimination arises from the system working as the governmental official desired, but the impact of the system falls on a citizen unfairly for a long period of time. The key evidence in these cases is a history of unfair treatment caused by the system used by the government, knowledge by the government about the treatment, and the absence of affirmative steps to remedy the discrimination.

Under both types of single-member-class equal protection claims, the burdens on the citizen are quite high. With the presumption of the good faith accorded to governmental officials, only conduct that unambiguously supports the landowner's claim will trigger liability. Therefore, neither of these types of cases will likely trigger a federalization of land use regulation or a transformation of every land use dispute into a constitutional case. Put simply, the courts will defer to local and state governments to regulate the use of land unless the governments either allow individual officials to misuse their governmental powers or systematical and knowingly discriminate against citizens.

Conclusion

The need for single-member-class equal protection claims arises out of governmental bad faith. Whether the government has become the vindictive tool of one or more officials with malice toward a landowner or has displayed callous disregard to the unfair impact of the land use determinations, the essence of the problem is governmental bad faith. In most instances the problems should be corrected in the administrative and judicial review of land use cases provided by state law. However, the very presence of cases such as Del Monte Dunes, Thomas, and U.S. Cellular Corp. demonstrate the need for this type of claim.

As noted in Justice Breyer's concurrence in Olech,⁷⁴ the town argued that finding for the plaintiff-landowner would undercut local land use decisionmaking discretion and authority, and would open the floodgates for federal claims by disgruntled landowners. Justice Breyer rejected the argument that the Court's decision would "transform many ordinary violations of city or state law into violations of the Constitution" because Olech was not a simple instance of a faulty zoning decision.⁷⁵ On the contrary, Olech turned on the fact that the plaintiffs alleged an additional factor—the illegitimate animus or ill will by the town against the plaintiff. In Justice Breyer's opinion, this additional factor of ill will or illegitimate animus is "sufficient to minimize any concern about transforming run-of-the-mill zoning cases into cases of constitutional right."⁷⁶

If local and state governments and their land use officials want to circumscribe the extent to which courts will intervene in their land use decisions by way of constitutional cases, they must police themselves and act fairly and in good faith. Actions such as changing the rules mid-stream while reviewing an application, adding new or additional hurdles to the approval, demanding concessions not demanded of similarly situated applicants, and repeatedly denying meritorious applications will trigger the continued rise of single-member-class equal protection claims and other similar constitutional challenges.

1. See City of Monterey v. Del Monte Dunes at Monterey, Ltd., 119 S. Ct. 1624, 1637, 29 ELR 21133, 21136 (1999).

2. See, e.g., Robert J. Hopperton, The Presumption of Validity in American Land Use Law: A Substitute for Analysis, a Source of Confusion, 23 B.C. ENVTL. AFF. L. REV. 301 (1996).

3. For example, it is clear that the courts may step in to protect the substantive and/or procedural due process rights of landowners where the government's land use decision is arbitrary or irrational. See, e.g., HBP Assocs. v. Marsh, 893 F. Supp. 271, 279 (S.D.N.Y. 1995). Similarly, the courts will protect the rights of a landowner where a governmental regulation denies an owner economically viable use of his land. See Agins v.City of Tiburon, 447 U.S. 255, 260, 10 ELR 20361, 20362 (1980). These two contexts are not the only ones in which the courts will scrutinize a municipal land use decision. However, they are representative of the types of claims which courts have found justify limiting the discretion of local governments. See Thomas v. City of West Haven, 249 Conn. 385, 734 A.2d 535 (1999) and Del Monte Dunes, 119 S. Ct. at 1624, 29 ELR at 21133. This Article will discuss these cases in detail. See also Christopher R. Bryant, Zoning Out Due Process Rights: W.J.F. Realty Corp. v. Town of Southampton, 73 ST. JOHN'S L. REV. 565 (1999) (discussing due process case law in the Second Circuit); John R. Williams, Representing Plaintiffs in Civil Rights Litigation Under Section 1983, 619 PLI/LITIG. 127, 362-73 (1999) (discussing the claims that may be brought against governmental actors under 42 U.S.C. § 1983 in the land use context).

4. 450 U.S. 621, 11 ELR 20345 (1981).

5. Id. at 661 n.26, 11 ELR at 20355 n.26.

6. Id. Unlike governmental searches and seizures, governmental land use decisions are made by a variety of professionals, elected politicians and appointed citizens. The decisionmakers, types of decisions, and specific procedures span from issuing simple permits administratively to legislative decisions by a governing board. This aspect of land use decisions, along with the increasing use of land use regulations to achieve broad public "goods" such as schools and parks, may explain why applying constitutional limitations to government land use decisions has proven to be so difficult and the courts' work so long-standing.

7. See, e.g., City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). For an argument that Equal Protection Clause claims ought to serve as a substitute in certain instances in which other constitutional claims, e.g., under the Commerce Clause, are not available, see John H. Turner, Solid Waste Flow Control: The Commerce Clause and Beyond, 19 MISS. C. L. REV. 53, 84-107 (1998).

8. Village of Willowbrook v. Olech, 120 S. Ct. 1073, 30 ELR 20360 (2000).

9. City of Monterey v. Del Monte Dunes at Monterey, Ltd., 119 S. Ct. 1624, 29 ELR 21133 (1999), discussed in Steven J. Eagle, Del Monte Dunes, Good Faith, and Land Use Regulation, 30 ELR 10100 (Feb. 2000); John D. Echeverria, Revving the Engines in Neutral: City of Monterey v. Del Monte Dunes at Monterey, Ltd., 29 ELR 10682 (Nov. 1999).

10. U.S. Cellular Corp. v. Board of Adjustment of City of Des Moines, 589 N.W.2d 712, 719 (Iowa 1999).

11. Thomas v. City of West Haven, 249 Conn. 385, 391, 734 A.2d 535, 539 (1999).

12. 483 U.S. 825, 17 ELR 20918 (1987).

13. 512 U.S. 374, 24 ELR 21083 (1994).

14. See, e.g., Jan Laitos, Takings and Causation, 5 WM. & MARY BILL RTS. J. 359 (1997).

15. See, e.g., Eagle, supra note 9, at 10102-05.

16. 589 N.W.2d 712 (Iowa 1999).

17. Id. at 719.

18. Id. at 717.

19. Id. at 721.

20. 119 S. Ct. 1624, 29 ELR 21133 (1999).

21. At trial, the court, based upon the jury's verdict, found that the city of Monterey was liable on both the takings claim and an equal protection claim. The Ninth Circuit addressed only the takings claim, finding it unnecessary to address the equal protection claim. Therefore, the Court's opinion is ostensibly limited to a discussion of the takings claim.

22. See Eagle, supra note 9.

23. 505 U.S. 1003, 22 ELR 21104 (1992).

24. Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 297, 11 ELR 20569, 20577 (1981).

25. See Del Monte Dunes, 119 S. Ct. at 1633, 29 ELR at 21134 (holding that a takings claim is not ripe until the government's land use decision is final). See also Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985)(under circumstances such as this, to require the developer to resubmit "additional proposals would implicate the concerns about repetitive and unfair procedures expressed in MacDonald, Summer & Frates v. Yolo County, 477 U.S. 340, 106 S. Ct. 2561 (1986)"); Agins v. City of Tiburon, 447 U.S. 255, 260, 10 ELR 20361, 20362 (1980) (the failure to submit an application means that there is "no concrete controversy regarding the application of the specific zoning provisions"). See also Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725, 27 ELR 21064 (1997) (holding that a landowner does not have to attempt to sell his transferable development rights before commencing a regulatory takings claim because regulation denied all development of the property and did not vest the government with discretion to specially apply the regulation to the petitioners' property).

26. City of Monterey v. Del Monte Dunes at Monterey, Ltd., Official Transcript, Oct. 7, 1998, at 6-7.

27. See Del Monte Dunes, 119 S. Ct. at 1634, 29 ELR at 21135.

28. Id. at 1636, 29 ELR at 21136 (holding that the jury instructions did not allow the jury to evaluate the reasonableness of the city's zoning laws or land use policies, but rather whether the city's actions in this case advanced a legitimate public purpose).

29. Id. at 1635, 29 ELR at 21136.

30. From a Fifth Amendment standpoint, if the government takes all reasonable economic use of a person's property, then the property owner should be entitled to just compensation. The propriety of the government's action and legitimate public interests or needs for the regulation should be irrelevant. On the other hand, if all reasonable economic use of the property is not taken, then consideration of the importance of the regulation and the government's good in addressing this public need would seem to be relevant as to whether a taking occurred.

31. Del Monte Dunes, 119 S. Ct. at 1644, 29 ELR at 21139. See Echeverria, supra note 9, at 10688.

32. 503 U.S. 519 (1992).

33. Id. at 526.

34. Id. at 522 (emphasis added).

35. The Court adopted the petitioners' description of triggering the application of these statutes to the petitioners' property as "a kind of gauntlet." Id. at 528.

36. Id.

37. Id. See also Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 22 ELR 21104 (1992) (holding that no such need for running the gauntlet was required because the regulation lacked any exceptions or permits. It simply prohibited building on Lucas' two lots).

38. Del Monte Dunes, 119 S. Ct. at 1636, 29 ELR at 21136.

39. Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422, 1430, 27 ELR 20139, 20142 (9th Cir. 1996).

40. Del Monte Dunes, 119 S. Ct. at 1636, 29 ELR at 21136.

41. Id. at 1645, 29 ELR at 21140 (emphasis added).

42. Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 191 (1985).

43. U.S. CONST. amend. XIV, § 1.

44. 120 S. Ct. 1073, 30 ELR 20360 (2000).

45. Id. at 1075, 30 ELR at 20361 (citing Sioux City Bridge Co. v. Dakota County, 260 U.S. 441 (1923); Allegheny Pittsburgh Coal Co. v. Commission of Webster County, 488 U.S. 336 (1989)).

46. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985).

47. 247 U.S. 350 (1918).

48. 260 U.S. 441 (1923).

49. 488 U.S. 336 (1989).

50. Sunday Lake Iron, 247 U.S. at 352.

51. Id. at 353.

52. Id.

53. Id.

54. Id.

55. Id.

56. Sioux City Bridge, 260 U.S. at 446.

57. Id.

58. Id. at 447.

59. Allegheny Pittsburgh, 488 U.S. at 343.

60. Id.

61. Id. at 346.

62. 53 F.3d 176 (7th Cir. 1995).

63. Id. at 179.

64. Id. at 180.

65. The Seventh Circuit has been the champion of this type of equal protection claim in recent years. However, the idea that the Equal Protection Clause should provide relief when a state actor uses its power to punish an individual or group simply out of malice draws on Court precedent, see, e.g., City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 444-48 (1985), and has been recognized in other circuits, see, e.g., Yerardi's Moody St. Restaurant v. Board of Selectmen, 878 F.2d 16 (1st Cir. 1989); LeClair v. Saunders, 627 F.2d 6060 (2d Cir. 1980); and Zeigler v Jackson, 638 F.2d 776 (5th Cir. 1981).

66. For additional information on this "new" equal protection claim, readers may find the following helpful: J. Michael McGinnis, Jack-Booted Government Thugs Beware: Litigating Equal Protection and Selective Enforcement Claims, 619 PLI/LITIG. 623 (1999); J. Michael McGinnis, Equal Protection for Nonsuspect Class Victims of Governmental Misconduct: Theory and Proof of Disparate Treatment and Arbitrariness Claims, 619 PLI/LITIG. 707 (1999) (reprinted with permission of the Campbell Law Review); Alan E. Brownstein, Illicit Legislative Motive in the Municipal Land Use Regulation Process, 57 U. CIN. L. REV. 1 (1988).

67. 249 Conn. 385, 734 A.2d 535 (1999).

68. Id. at 415, 734 A.2d at 551. The court found that the evidence presented by the plaintiffs was sufficient to withstand the city's motion to dismiss and, thus, remanded the case for trial. Id. The plaintiffs' evidence tended to show that at least two of the commission's members, the chairman and a vice-chairman, made several unlawful attempts to block their rezoning application solely on the grounds that they disliked the applicant, and the fact that the plaintiffs had historically operated an amusement center and pool hall on the property, a use which was consistent with the site's zoning. For example, the court noted that the vice-chairman "referred to the plaintiff's prior use of the property [during the rezoning hearing], stating that 'this guy made plans for [the amusement center] instead of what we called for and a pool hall. . . . We gave this guy everything. Now he comes with this sh _ _. He's a shrewdy.'" Id. at 396, 734 A.2d at 542.

69. Id. at 393, 734 A.2d at 540-41 (quoting Crowley v. Courville, 76 F.3d 47, 52-53 (2d Cir. 1996)). Readers should know that as a general proposition the courts have held that selective treatment or enforcement claims are not actionable. See Wayte v. United States, 470 U.S. 598, 606-09 (1985); Turner, supra note 7, at 97-107 (describing selective prosecution defense claims and the Court's 1996 ruling in United States v. Armstrong, 517 U.S. 456 (1996)). See also Donald G. Gifford, Equal Protection and the Prosecutor's Charging Decision: Enforcing an Ideal, 49 GEO. WASH. L. REV. 659 (1981). In so holding, the courts recognize that governmental decisions have differential impacts on citizens for any number of permissible reasons, such as a lack of resources or a concentration of efforts. Thus, selective treatment claims are only actionable under the Equal Protection Clause when the differential treatment is motivated by an impermissible motive.

70. Thomas, 249 Conn. at 415, 734 A.2d at 551.

71. Id. at 402, 734 A.2d at 545 (quoting Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989)).

72. Id. at 402-03, 734 A.2d at 545.

73. Id. at 403, 734 A.2d at 545. See Allegheny Pittsburgh Coal Co. v. Commission of Webster County, 488 U.S. 336, 340 n.3 (1989) (discussion of the issue of comparable properties and the various issues related to these types of comparisons.)

74. 120 S. Ct. at 1075, 30 ELR at 20361 (Breyer, J., concurring).

75. Id.

76. Id.