Daily Development for Monday, February 28, 2000 By: Patrick A

Daily Development for Monday, February 28, 2000 By: Patrick A. Randolph, Jr.

Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

CONSTITUTIONAL LAW; EQUAL PROTECTION; ZONING DECISIONS: Public agency may be liable for animus-driven actions that delay provision of land use actions that ordinarily would be granted.

Olech v. Village of Willowbrook, 160 F.3d 386 (7th Cir. 1998) affirmed 2000 WL 201157 (U.S. 2/23/00)

Olechs had a well from which they derived water for use in their home. The well broke, and Olechs elected to ask the Village of Willowbrook for a hook-up to the Village water system. The Village required as a condition of the hook-up that the Olechs dedicate a 33 foot easement to the City, which it would use for widening the street, even though the normal city requirement for easements to install and maintain the water line would have been only fifteen feet.

Olechs alleged that there was no basis for this additional requirement other than animus on the part of the city because of the fact that Olechs earlier had successfully sued the city for flooding caused by an inadequate water main The Village apparently agreed that the demand for the 33 foot easement was overreaching, as it rescinded the requirement for the 33 foot easement and ultimately the Olechs got city water. They sued for damages anyway, however, claiming that the delay in receiving water to their home caused them injury, and that they had been deprived of equal protection of the law by the City's actions. The trial court granted summary judgment for defendant City.

On appeal: held: Reversed: Where there is a departure from normal land use policy motivated by "substantial ill will," an injured party can recover damages for breach of the Federal Equal Protection Clause.

The relatively brief and plain-spoken opinion is written by Judge Posner. It relies upon an earlier Seventh Circuit opinion in Esmail v. Macrane, 53 F.3d 176 (7th Cir. 1995), where an applicant for renewal of a liquor license successfully argued that he had a cause of action against the City if he could show that the denial was based upon "malicious conduct and a vindictive campaign" against him by the mayor.

The trial court, of course had Esmail in front of it when it granted summary judgment to the Village here. It had found that the facts alleged in the instant case did not amount to an "orchestrated campaign of official harassment" motivated by "sheer malice," such as had been alleged in Esmail. Judge Posner indicated that the trial judge read Esmail too narrowly:

Nothing in the Esmail opinion, however, suggests a general requirement of "orchestration" in vindictiveaction equal protection cases, let alone a legally significant distinction between "sheer malice" and "substantial ill will," if, as alleged here, the ill will is the sole cause of the action of which the plaintiff complains. Esmail was complaining that he had been denied liquor licenses on the basis of trivial infractions for which no other applicant had ever been denied a license. Standing by itself, this difference in treatment would not have been a denial of equal protection, but merely an example of uneven law enforcement, than which nothing is more common nor, in the usual case, constitutionally innocent. The plaintiff had to and did allege that the denial of his applications was the result not of prosecutorial discretion honestly (even if ineptlyeven if arbitrarily) exercised but of an illegitimate desire to "get" him because of lawful actions by him that had aroused the mayor's ire. It was in that context that we pointed out that the complaint alleged much more than uneven enforcement." The U.S. Supreme Court has now affirmed Judge Posner per curiam with only the briefest of opinions, the gist of which can be set forth in the single quoted paragraph below:

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 from others similarly situated and that there is no rational basis for the difference in treatment.. . . In so doing, we have explained that " '[t]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.' "

That reasoning is applicable to this case. Olech's complaint can fairly be construed as alleging that the Village intentionally demanded a 33 foot easement as a condition of connecting her property to the municipal water supply where the Village required only a 15foot easement from other similarly situated property owners. The complaint also alleged that the Village's demand was "irrational and wholly arbitrary" and that the Village ultimately connected her property after receiving a clearly adequate 15foot easement. These allegations, quite apart from the Village's subjective motivation, are sufficient to state a claim for relief under traditional equal protection analysis. We therefore affirm the judgment of the Court of Appeals, but do not reach the alternative theory of "subjective ill will" relied on by that court." In concurring Justice Breyer commented that equal protection claims in this area cannot be based upon a "simple and common instance of a faulty zoning decision," even one allegedly made with no rational basis. "In this case respondent had alleged an extra factor as well a factor that the Court of Appeals called 'vindictive action,' 'illegitimate animus,' or 'ill will.'"

Comment 1: Is this a "break in the dike" notwithstanding the cautious language from Justice Breyer? Note that in another recent case, Mehlhorn v. Pima County, 978 P.2d 117 (Ariz. App. Div. 3 1998), the DIRT DD for February 22, the court concluded that courts had no right to review even "biased" decisions to deny rezoning relief, since the plaintiff had no absolute right to receive such relief. Probably the instant case is distinguishable, because of the fact that the city had clear procedures for the granting of water hook up rights. But Esmail involved a liquor license (albeit a renewal of a license - a fact that Judge Posner fails to note.) Is the granting or renewal of a liquor license a property right?

Comment 2: In another recent federal case in the Seventh Circuit, a trial court held that parties alleging damages for a Willowbrook-based claim of malicious denial of zoning privileges in a case in which plaintiffs had been denied a zone change held specifically that the complaint stated a cause of action and that no exhaustion of administrative remedies was necessary for the case to become "ripe" under the Hamilton Bank standard, since damages for breach of equal protection are do not amount to a "disguised taking." Geddes v. County of Kane, 2000 U.S.Dist Lexis 1284, No. 98 C 7722 (E.D. Ill. 2/3/00).

In Geddes the allegations were that, in a modern marvel of bureaucratic insensitivity, the Director of Development (Planning Director), observing that on of the landowners was Chinese, asked if she was willing to "kowtow" (respectfully bow) to him as the Director of Development. She refused. Subsequently he denied the rezoning request, rejecting his technical staff's recommendation and made several other ill thought out comments, including an incident in which he "screamed" at the landowners.

In light of the affirmance of Willowbrook on broader grounds, one wonders what happens to cases like Geddes. Where broad public discretion traditionally has been available, and no "property rights" are at stake, do the courts now have a review role, to test for rationality? Or are Geddes- style cases still reviewable only when animus is shown. In either case, we have a new ball game.

CONSTITUTIONAL LAW; EQUAL PROTECTION: Olech v. Village of Willowbrook, 160 F.3d 386 (7th Cir. 1998) affirmed 2000 WL 201157 (U.S. 2/23/00)

The issues addressed in this case are set forth in the discussion of Judge Posner's Seventh Circuit opinion reported above.

The U.S. Supreme Court has now affirmed Judge Posner per curiam with only the briefest of opinions, the gist of which can be set forth in the two quoted paragraphs below:

Comment 1: The affirmance does not reach certain issues reached by Judge Posner regarding the relevance of special animus in zoning decisions, so it would appear that the Seventh Circuit opinion relating to those issues has been neither affirmed nor rejected. It is difficult to know what to do with Judge Breyer's concurrence in light of the specific statement of the Supreme Court that it is not passing on Judge Posner's conclusion that damages might lie because of the allegations of special animus present in this case.

Comment 2: The potential sweep of the Supreme Court's opinion is far broader than Judge Posner's. Even where there is no animus, an irrational zoning decision is actionable. Judge Bryer tries to close the door, but he is one against eight. The nature of the decision in Willowbrook does not involve substantial diminution of the value of the plaintiff's property, but simply damages for an irrational act. There is no telling how far this analysis will take us, but it clearly has the potential to bring about major changes in the way in which American zoning decisions are challenged.

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