NFIB Asks Supreme Court to Clarify Equal Protection Rules

Date: April 18, 2016

We often hear from small business owners who are having trouble with local zoning officials. The disputes often arise when a zoning authority denies a special permit or variance requested by a landowner who wants to put his or her property to some economically beneficial use. But while the common law permitted landowners to use their property however they should like, so long as they were not hurting others, modern zoning codes greatly restrict property rights—often vesting land use authorities with wide discretion to approve or disapprove a requested permit or variance.

A permit or variance denial can be difficult to challenge. For one, in most cases it will be almost impossible to claim that a permit or variance denial amounts to a “taking of property” because courts will generally only recognize a regulatory taking where the property is so severely restricted that no development is allowed at all. Alternatively, a landowner might challenge a permit or variance denial on due process grounds, either by contesting the validity of the zoning code, or the stated reason for the permit or variance denial. But, unfortunately, courts apply a highly differential test, upholding zoning decisions if they, in any way, shape, or form advance the “public interest.”

Another potential line of attack is for a landowner to claim that he or she has been treated differently than his or her neighbors; however, in that case the courts are even more deferential, and will uphold the decision of the zoning authorities if there is any conceivable rational basis that might justify their decisions. But what if the stated reason is mere pretext? What if the government really has singled you out for unfair or discriminatory treatment—notwithstanding an ostensibly reasonable purported justification?

Well again, the Supreme Court has held that if the government treats a landowner differently than other similarly situated landowners then the government bears the burden, under the Equal Protection Clause of the Fourteenth Amendment, to explain a rational basis for the disparate treatment. That’s a very minimal burden for the government. But if the government cannot even offer a rational explanation for why it treated similarly situated parties differently, that would seem to be proof positive that the government has inappropriately singled a property owner out for special treatment.

Yet in the years since the Supreme Court pronounced this “class-of-one” doctrine, the lower courts have struggled to apply the test. The primary reason is because different courts take different positions as to how similar landowners must be in order to invoke the class-of-one doctrine. The majority approach holds that the parties must be merely substantially similar. But the U.S. Court of Appeals for the 11th Circuit has taken an especially narrow view—holding that the landowners must essentially be identical in order for one to claim that he was inappropriately treated differently. That approach makes it almost impossible to find any two landowners in a truly identical situation because every property differs in its own ways.

In Dibbs v. Hillsborough County the 11th Circuit ruled that landowners must not only be similarly situated with regard to their respective properties, but that they must also be covered by the exact same zoning restrictions. In that case Hillsborough County, Florida had created different districts with different zoning regimes, but in all relevant respects the zoning restrictions were similar and equally applicable to the properties in question. Nonetheless, the court ruled that a landowner who had suffered a denial of request for variance could not advance a challenge under the Equal Protection Clause.

We found that decision to be highly concerning. And because these sort of issues come up all the time, we think it imperative that the Supreme Court take this case. Without concrete guidance from the Supreme Court, the lower courts will continue to struggle with these issues, and the Eleventh Circuit will continue to apply an unfair standard that allows zoning authorities to treat similarly situated landowners differently without any rational justification.

For more commentary on this issue, check out Robert Thomas’ analysis on Inversecondemnation.com.

 

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