atLaw
Philip H. Graeter
617 226-3492
Associate
Areas of Concentration
Business Litigation
Real Estate Litigation
Office
Members of local conservation commissions, zoning boards, and the like may be volunteers, but their power to regulate the use and enjoyment of property is a government function that carries with it the constitutional responsibility to afford permit applicants due process and equal protection of the law. Put simply, it means that property owners have a right to notice, a hearing, and fair, consistent application of the law among similarly situated applicants.
Due process means little more than proper notice and an opportunity for affected parties to be heard in a fair proceeding. That is all the process that is due under the circumstances.
Equal protection is more complicated because it focuses on the motives for a decision. While state law gives most local authorities significant discretion in granting or denying permits, the Equal Protection Clause of the U.S. Constitution acts as an overarching limit on the exercise of that discretion among all applicants. It requires government to treat similarly situated individuals the same, or have a rational basis for unequal treatment. Equal protection cases traditionally challenged decisions made on the basis of class such as race, gender, ethnicity, or other innate characteristic on which it is irrational to base government decision. In recent years, an increasing number of plaintiffs are asserting a long neglected theory of equal protection, that of the individual singled out for adverse treatment because of personal animus—the claim that local authorities wanted to “get” an individual for reasons unrelated to the proper enforcement of zoning or similar laws.
The increase in so-called “class of one” cases follows a 2000 U.S. Supreme Court decision, Village of Willowbrook v. Olech, that recognized the viability of such claims in the land use context. It also reflects a frustration with the difficulty of appealing permitting decisions, especially denials, under state law where courts defer to municipalities unless the decision is irrational, arbitrary, or in excess of authority.
The Olech case began in Willowbrook, Illinois, where Grace and Thaddeus Olech applied to connect their house to the public water supply when their well dried up. The Village demanded a 33-foot easement to connect the house, but had only required a 15-foot easement from other homeowners. The Olechs refused and went without water for a winter before the Village connected the house with a 15-foot easement. The Olechs sued in federal court, claiming that the Village’s demand was “irrational and wholly arbitrary” and based on subjective ill will arising from an earlier, unrelated lawsuit against the Village, in violation of their equal protection rights.
After mixed results in the lower courts, the Supreme Court let the equal protection claim proceed because the Olechs had alleged merely that the Village’s demand was “irrational and wholly arbitrary,” and that the connection was ultimately made with a 15-footeasement (negating any defense that the larger easement was required). The Court did not say that the plaintiffs also had to prove that the motive behind the decision was vindictive—an illegitimate desire to “get” the plaintiff, but a separate opinion by Justice Breyer and cases in lower courts have made that a requirement.
Justice Breyer acknowledged that zoning decisions usually, if not always, treat one landowner differently than another, which is not by itself unconstitutional. The discretion given to local boards means that some meritorious applications will be denied and, Breyer noted, judges are loath to transform “run-of-the-mill zoning cases into cases of constitutional right.” Since Olech, lower courts have nearly uniformly required plaintiffs to establish both unequal treatment with no rational basis and an illegitimate motive based on subjective ill will, which are both difficult to prove. Relatively few plain-tiffs are able to get a case to trial and prevail. Indeed, even the Olechs eventually lost.
To establish unequal treatment in the permitting context, one must show that similarly situated property owners received the relief the plaintiff was denied. There is no hard and fast rule to determine who is “similarly situated.” The applicants and their proposed projects must be roughly equivalent (same zoning classification, same type of permit, similar project) so that one case can be fairly evaluated against the other. Finding comparison cases is challenging because all real property is, by definition, unique and the size and scope of proposed projects varies widely.
One recent Massachusetts case, Tapalianv. Tussino, illustrates what is required to succeed. Tapalian, a developer, applied to build a subdivision and was denied because the pro-posed access road was too narrow. He later reached an agreement with the town to build the subdivision if he first widened a portion of the access road and repaved it to a specific, town-approved standard. Later, the town’s public works director imposed additional, expensive road improvement requirements on Tapalian that went far beyond the agreement and the road improvement standards imposed on another subdivision developer at roughly the same time (the “similarly situated” developer). The plaintiff was also able to introduce evidence that the public works director told others that he was deliberately making life difficult for Tapalian, who walked away with a$200,000 jury verdict.
The permitting process can be expensive, time consuming, and unpredictable. Real estate development doesn’t occur in a vacuum property rights and investment expectations often clash with local politics, personal agendas, and not-in-my-backyard opposition. Where a decision suggests bias or other unlawful motive, particularly if the developer has a long or contentious history before the board, it is often worth reviewing the minutes and decisions of the same board in similar cases to discern if there is evidence that the board singled out the developer for adverse treatment. “Class of one” equal protection claims are nota remedy for all unfair treatment by local authorities, but they are an important check on the misuse of power for vindictive purposes.
