Due Process/Equal Protection
Protection Against Certain Governmental
Actions provided by the 14th Amendment
to the U.S. Constitution
Case List

1. Village of Belle Terre v Boraas [Sarah D]
2. Moore v City of East Cleveland [Chad B]
3. City of Edmonds v Oxford House ___ F.2d ___ (1995)
[Keller]
4. City of Brookings v Bradley Winker 129 S.D. ___ (1996)
[Keller]
5. Arkenburg v City of Topeka 197 Kan. 731 (1966) [classic
reasonableness] [Keller]
6. Cary v Rapid City South Dakota 559 N.W.2d 891 (1997)
[reasonable person test] [Jennifer]
3. Berger v City of Mayfield 154 F.3d 621 1998 [vagueness
and rationally related] [Bryan E]
The 14th Amendment
Post Civil War Legislation
Makes the Bill of Rights
applicable to the States
It is the “work horse”
amendment
But it is a slippery slide
The 14th Amendment is Based on States’ Rights and
Responsibilities to its Citizens
Due Process of the Law
Equal Protection of the
Laws
The Right to Travel
Civil Rights
To be Free From Arbitrary
Decisions
Due Process



Due process is best defined in one word--fairness.
Throughout the U.S.'s history, its constitutions, statutes and
case law have provided standards for fair treatment of
citizens by federal, state and local governments.
Standards are known as due process. When a person is
treated unfairly by the government, including the courts,
he is said to have been deprived of or denied due process
Is This Fair?
Procedural Due Process
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

An aspect of informed consent
An expectation that you will receive the same
level of fair treatment as others
An expectation that the procedure will follow an
exact chain of events
Substantive Due Process



Substantive due process is a far narrower concept than
procedural
It is an absolute check on certain governmental actions
notwithstanding "the fairness of the procedures used to
implement them.“
A violation of "substantive" due process occurs only where
the government's actions in depriving a person of life,
liberty, or property are so unjust that no amount of fair
procedure can rectify them. Irrationality and arbitrariness
imply a stringent standard against which state action is to
be measured in assessing a substantive due process claim
Substantive v Procedural Due Process


Did you do things right?
Did you do the right things
An expectation that others have the
same rights as you allow for yourself
Belle Terre v Boraas


A New York village ordinance restricted land use to onefamily dwellings, defining the word "family" to mean one or
more persons related by blood, adoption, or marriage, or
not more than two unrelated persons, living and cooking
together as a single housekeeping unit and expressly
excluding from the term lodging, boarding, fraternity, or
multiple-dwelling houses
After the owners of a house in the village, who had leased
it to six unrelated college students, were cited, this action
was brought to have the ordinance declared
unconstitutional as violative of equal protection and the
rights of association, travel, and privacy.The District Court
held the ordinance constitutional, and the Court of
Appeals reversed.
Location


Belle Terre is a village on Long Island's north shore
of about 220 homes inhabited by 700 people. Its
total land area is less than one square mile. It has
restricted land use to one-family dwellings
excluding lodging houses, boarding houses,
fraternity houses, or multiple-dwelling houses.
The “gated community” is 98 percent residential,
several public buildings and churches, a two
commercial uses.
Location Context
Supreme Court Analysis

The present ordinance is challenged on several grounds:
that it interferes with a person's right to travel; that it
interferes with the right to migrate to and settle; that it bars
people who are uncongenial to the present residents; that
it expresses the social preferences of the residents for
groups that will be congenial to them; that social
homogeneity is not a legitimate interest of government;
that the restriction of those whom the neighbors do not like
steps on the newcomers' rights of privacy; that it is of no
rightful concern to villagers whether the residents are
married or unmarried
Argument

It is said, however, that if two unmarried people can
constitute a "family," there is no reason why three or four
may not. But every line drawn by a legislature leaves some
out that might well have been included. That exercise of
discretion, however, is a legislative, not a judicial, function.
It is said that the Belle Terre ordinance reeks with an
animosity to unmarried couples who live together.6 There
is no evidence to support it; and the provision of the
ordinance bringing within the definition of a "family" two
unmarried people belies the charge.
Decision

The regimes of boarding houses, fraternity houses, and the
like present urban problems. More people occupy a given
space; more cars rather continuously pass by; more cars
are parked; noise travels with crowds. A quiet place where
yards are wide, people few, and motor vehicles restricted
are legitimate guidelines in a land-use project addressed
to family needs. This goal is a permissible one. The police
power is not confined to elimination of filth, stench, and
unhealthy places. It is ample to lay out zones where family
values, youth values, and the blessings of quiet seclusion
and clean air make the area a sanctuary for people.
Moore v East Cleveland
Moore v. East Cleveland
Moore v City of East Cleveland 431 U.S.
494 (1977)
The Background
Mrs Moore
Her Two Grandsons
The City of East Cleveland’s Actions


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
1973 Moore received a notice of violation
The city filed criminal charges against Mrs. Moore
after refusing to remove her grandson
Moore’s motion to dismiss the charge was
overruled
Sentenced to 5 days in jail and $25
Moore Appeals

The Ohio Court of Appeals affirmed

The Ohio Supreme Court denied review

The U.S. Supreme Court took the case
The City’s argument


The City seeks to prevent overcrowding,
minimize traffic and parking congestion and
avoid an undue financial burden on the school
system
Argued the Court’s decision in Belle Terre
requires the Court to sustain the ordinance
attack.
U.S. Supreme Court’s Findings

Concluded the ordinance deprived Mrs.
Moore’s liberty in violation of due process of the
14th Admendment
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The case is distinguishable from Belle Terre
Courts must examine the importance of the
governmental interest advanced and extend to
which they are served by the regulation
The ordinance at best has a tenuous relationship to
the objectives cited by the police
Strong constitutional protection of the sanctity of the
family is established in numerous Court decisions.
Appropriate limits on substantive due process
comes not from drawing arbitrary lines but from
careful “respect for the teachings of history [and]
solid recognition of the basic values that underlie
our society.”
The Oxford House Series

The House must be democratically self-run.
The House membership is responsible for all household expenses.
The House must immediately expel any member who uses alcohol or drugs,
which each house must fulfill
in order to obtain and retain its Oxford House Charter.
Oxford House Promise

“There is no need to seek prior approval for
leasing to an Oxford House. Oxford House, Inc.,
will legally defend any claim of zoning violation
made by localities still unfamiliar with the 1988
amendments to the Fair Housing Act.”
Oxford House Web Site
Context

The Oxford House case deals with the Fair
Housing Act and reasonable accommodation.
However, the real meaning of the case is about
due process and the actions of Oxford House
and the City of Universal City, MO
The Concept – Congregate Housing

Oxford Houses are a nationwide network of selfgoverning, transitional residences where
recovering alcoholics and drug addicts can live
in a supportive group setting. Oxford House
locates its group homes in residential
neighborhoods. Residents seek jobs in the
community, pay for their room and board, and
are expelled if they relapse. To be economically
viable, an Oxford House must have a minimum
of eight to twelve residents.
Background



Oxford House locates in Universal City, Missouri
without the necessary special permit that needs
to be granted for group housing
The City uses its enforcement powers and
threatens to evict
City’s group home is eight persons or less and
limited to a physical or mental disability
Further Actions


City amends its ordinance to permit larger group
homes with a special use permit but the
definition still is limited to only persons with a
mental or physical disability
Although the City further amends its ordinance
to accommodate Oxford house, and drops the
case, the court assigns cost to the City for
attorney’s fee
Basic Decision



The Appeals Court rules for the City on the
matter of attorney’s fees
Oxford House must give the City a chance to go
through its’ regular procedures and grant them
relief.
Oxford House shot themselves in the foot. They
signed the lease with no intention of informing
the city, obtaining a permit, and knowingly
violated the 10 person rule.
And, More


Oxford House filed a premature, superfluous law
suit in hopes of bullying the City to grant them
their wishes without further review.
Because they were the catalyst for the action,
they are not entitled to damages or fees
However – Note – The Supreme Courts
Says:


In a 6-3 decision resolving a dispute over the
application of the Fair Housing Act, the court
said communities may set occupancy limits,
space requirements and other restrictions on
houses occupied by unrelated people, like
group homes, but only if they also apply to
everyone else living in the area.
Thus, the case is about fairness and justice
between two groups
Take Home Point


A person with a disability need not be given
more rights that the residents of the area, but
they should have the same rights
In other words, the law should work equally for
both groups
City of Brookings
City of Brookings v Bradley Winker



Winker is convicted of violating a Brookings’
ordinance that prohibits more than three
unrelated individuals from living as a single family
(so does Manhattan, Kansas)
Winker is the landlord and owns a main floor and
a basement apartment. Four students were living
in the main floor apartment
The apartment is in a zoning district that permits
two single family dwelling units per structure
Winker’s House – How Could You Tell
Students Live Here?
Winker and the Students
The Ordinance

An individual or two or more persons related by blood or
law occupying a dwelling unit and living as a single
household entity or two or more persons related by blood
or law occupying a dwelling unit and living as a single
household entity together with the number of unrelated
adults so that the family contains no more than three
adults who are unrelated by blood or law or not more than
three unrelated adults occupying a dwelling unit and
living as a single household entity.
Winkler


Winkler owns a duplex unit
that he rents to students.
One the duplex units
contains five residents
The City’s Claim


The purpose of the ordinance is to regulate
density and to preserve the property values of
older neighborhoods
Students are not a suspect class given special
equal protection treatment
Preserve Property Values?
Parking Density
Winker’s Claim


He claims there is no rational relationship between the
classification created by the definition of "family" and the
object of controlling density of population
Under this ordinance, twenty male cousins could live
together, motorcycles, noise, and all, while three
unrelated clerics could not. A greater example of overand under-inclusiveness we cannot imagine. The
ordinance indiscriminately regulates where no regulation is
needed and fails to regulate where regulation is most
needed.
Court’s Decision



Brookings is a college town that experiences
many density problems in its older
neighborhoods
A line must be drawn somewhere and the courts
feels that it is neither arbitrary nor capricious to
limit the number of unrelated individuals who
may live in a designated single family unit
The ordinance is valid
Procedural Due Process
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Did you do things right?
Would other reasonable people have come to
the same conclusion?
Was the decision arbitrary?
Was the decision based on factual conclusions
Arkenburg v Topeka
The Church v Topeka
Entanglements
Background


The First Christian Church of Topeka owns an tract of
ground 4 blocks square bounded by West 18th , Stone
Ave., West 19th and Gage Blvd. The property was
purchased following a fire at their main church in
downtown Topeka. The tract is zoned R-1 residential.
Prior to this action the church erected some structures for
school purposes on the tract. The church contemplates
building a new church and youth center.
Facts

The First Christian Church files a rezoning request
seeking a change from R-1 residential to E multifamily dwelling for a 13 story, 145 unit high-rise
Senior Citizens' residence to be operated
through a separate non-profit corporation
controlled by the church
1st Hearing

The Planning Commission conducted a public
hearing attended by approximately 14 persons owners of homes in the vicinity. The residents
protested the rezoning citing increased traffic
and the suitability of the structure to its
surrounding neighborhood. The Planning
Commission vote 7 - 0 against the proposal and
placed on record the following facts:
The Findings
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



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Conflict with the adopted Land Use Plan
Conflict of an intense use in a single family neighborhood
Use of a parking lot for both the church and the high-rise
Insufficient open space to buffer the high-rise from the
neighborhood
Poor siting of building increases traffic
Insufficient right-of-way to increase width of road
God Is Not A Happy Camper
Amended Plan


The recommendation of the Planning Commission is sent to the
governing bodies of the City and County for final action. The
church requested a delay to file a new application - the matter is
referred back to the Planning Commission for reconsideration of
the changed application
The church amends its application to a 10 story, 135 unit high-rise;
the building footprint is moved towards the center of the tract to
increase open space and decrease the intrusion on the
neighborhood; a r.o.w. easement is offered to the City to increase
the street size.
The Next Hearing

Notice of the amended hearing is given and at
the public hearing the neighboring residents
again make the same objections and concerns.
The Planning Commission unanimously
recommends the change. This recommendation
is adopted by the governing bodies of the City
and the County.
The Site Map - Redux
Plan Profile
The Neighbors File Suit


Seven neighbors join in an action before the District Court
requesting a permanent injunction to bar the zoning
change alleging that the decision was unlawful, arbitrary,
capricious and unreasonable.
There are two major contentions:


The action itself is unreasonable in that the highrise will cause
unacceptable levels of traffic and conflict with the predominant
single family use of the area.
The church should not have been allowed to amend its application
once the Planning Commission voted against the proposal.
Take Home Point



OK – at this point we have a classic case of the
neighbors asserting their property rights as more
important than the applicant’s rights
“The Planning Commission/Council erred in
permitting this because it will lessen our property
rights and that is not RATIONAL and violates of
DUE PROCESS OF THE LAWS – they acted
irrationally
“Nor shall any person be deprived of life, liberty
or property… .
District Court Upholds the City


KS Supreme Court Review
The Kansas Supreme Court first notes that it must
be understood that the GOVERNING BODY HAS
THE RIGHT TO PRESCRIBE ZONING AND RIGHT TO
REFUSE TO CHANGE ZONING. The role of the
court is limited to determining the lawfulness of
the action taken and (2) the reasonableness of
such action. THERE IS a presumption that the
Governing Body acted reasonably and the court
will not interfere with the decision unless it is
clearly compelled to do so.
Court Reviews the Contentions
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On examination the Court finds that the character of the
neighborhood is decidedly mixed and not overwhelmingly
residential. Within 2 blocks of the site there is:
Neighborhood shopping
Federal Land Bank
Multiple family dwellings
Commercial printing plant
Service station
Seabrook shopping area
Churches
Veterans Administration Complex
Decision



The Court notes that certain residents object to building the
proposed high-rise for several reasons.
These reasons have been considered by the Planning
Commission and they are insufficient to prevent the
proposed rezoning.
The wishes of the neighbors are to be considered, but
zoning is not a Plebiscite of the neighborhood - the final
considerations are to be judged by the benefit and harm
to the overall community.
Due Regard



The very most that could be said about the
matter is that it fairly debatable.
Since the reasons for change appear rational,
and the City used reasonably facts to render its
final decision, the Court will not substitute its
judgment for that of the City.
The action was reasonable, the hearing fairly
conducted with due regard for all concerned.
Classic Test of Reasonableness
1.
2.
3.
4.
5.
6.
7.
8.
The hearings were fairly conducted
The City considered all the pertinent facts
The application was amended to modify perceived
impacts to the neighborhood
The proposal was not out of scale with its surroundings
Traffic generation was modified by road widening
The City's reasons for change were clearly stated
Plaintiffs failed to show unreasonableness in the City's
decision
The City is granted a presumption of reasonableness
Cary v Rapid City South Dakota


Jane Cary files for a
zoning change from
General Agriculture to
medium density residential
The City approves the
rezoning, but before the
protest time limit expires,
the neighbors file a
petition of protest
Some Background



The City annexed the property in 1992 and
classified as “no use zone.”
After annexation the City placed a street
assessment of $90,000 on Ms. Cary’s property.
The tax also rose from $122. to $3,168 per year
The Cary’s used the property as a horse pasture
for $150 rent per year
Things Unfold



The City, in 1994, rezones the property to General
Agriculture use to reduce her property taxes
In 1995 she is ready to sell to a developer
contingent on rezoning and submits the change
to medium density residential
The protest petition is filed
The Protest Petition

45 percent of the neighbors signed the petition
which represents 18 percent of the properties
The Law Reads

If such [a proposed zoning] ordinance be adopted, the
same shall be published and take effect as other
ordinances unless the referendum be invoked, or unless a
written protest be filed with the auditor or clerk, signed by
at least forty percent of the owners of the lots included in
any proposed district and the lands within one hundred
fifty feet from any part of such proposed district measured
by excluding streets and alleys. In the event such a protest
be filed, the ordinance shall not become effective as to
the proposed district against which the protest has been
filed.
Cary’s Claim


On appeal, Cary argues the protest provision of the
statute is unconstitutional because it does not provide
standards and guidelines for the delegation of legislative
authority, nor does it contain a legislative bypass provision
to remove the ultimate legislative authority and lawmaking
power from the protesters.
She claims the absence of such provisions is an unlawful
delegation of legislative power that results in a small
number of property owners being able to prevent a
landowner's use of property.
The Court Reasons That:

This not a typical "protest" statute. Normally enabling acts
provide for the filing of protest petitions by a specified
number of property owners within a prescribed distance of
the land affected by the amendment under
consideration. If sufficient protests are filed, a larger
affirmative vote of the municipal legislative body than
normally needed to enact an ordinance is required to
adopt the protested amendment and render the protest
ineffective.
Analysis



Legislative power is vested in the legislature and this
essential power may not be abdicated or delegated.
When a legislative body retains a police power,
articulated standards and guidelines to limit the exercise
of the police power are unnecessary.
A person's right to use his or her land for any legitimate
purpose is constitutionally protected. However, The law
does not permit the use of a person's property to be held
hostage by the will and whims of neighboring landowners
without adherence or application of any standards or
guidelines. Under this law "the property holders who desire
to have the authority to establish [a restriction] may do so
solely for their own interests or even capriciously.
Berger v Mayfield


Population 20,000 (County) 3242 Village
Suburb of Cleveland Ohio
SANFORD J. BERGER v. CITY
OF MAYFIELD HEIGHTS
154 F.3d 621; 1998 U.S. App.
LEXIS 21782; 1998 FED App.
0277P (6th Cir.)
KEY WORDS
Rational Nexus
Substantive Due Process
Equal Protection
BACKGROUND
Sanford J. Berger owns a
vacant lot in the city of
Mayfield and leaves the lot
in its “Natural” Condition
Berger and Lendell Riddleare Neighbors Since 1991
Lendell solicits a member of
the City Council to propose
an ordinance for the
maintenance of smallersized vacant lots
BACKGROUND
April, 1992: City Council in
response to the persistent
complaints amends the
Codified Ordinance, which
was in place for 35 years
Ordinance:The “owner of any
lot or parcel” within the city
shall cut any noxious weeds or
vines on the lot and maintain
them from growing beyond a
height of 8 inches, within 5 DAYS
of written notice to do so
PROPOSED AMENDMENT
99’
Existing lots having a width
of NOT MORE THAN 100 feet
and a total area LESS THAN
1 acre shall be “totally cut
x 900’
and264’
maintained
to a height
of no more than 8 inches”
418’
All other vacant lots shall be
“cut and maintained to a
height of no more than 8
inches” for a distance of
NOT LESS THAN 20 feet from
any right-of-way
THE PROBLEM
Berger’s lot has a width of
100 feet and an area of
42,062 sq. ft.
July 1983: City issued Berger
a warning notice to “cut
and maintain his lot” within
5 DAYS
Berger cut the grass on the
lot about 20 feet back from
the side-walk
Criminal charges in the
City’s municipal Court
THE CHALLENGE
The City Says:
Tall trees can cause damage by
falling or dropping limbs. Trash litter
and debris such as glass, metal
debris, or pieces of cement are
unsightly, provide habitat for
disease-carrying vermin, and could
injure trespassers. Trees and taller
brush form structures on which
poisonous vines can grow.
Berger files a suit in the
Federal district Court,
challenging the
“Constitutionality” of the
Ordinance
Defendants:
Lendell (neighbor)
City Council
Director of the city’s Building
Department
Director of the city’s Service
Department
Judge of Municipal court
BERGER’S CLAIMS
The Federal Court Says:
We find none of the proffered reasons
to be persuasive… .tall trees can
indeed cause damage by falling or
dropping limbs, this is true regardless
of the size lot the tree is on. The same
can be said for the point that
poisonous vines can grow on trees
and taller brush. To argue that trees
should be cut down because poison
ivy may grow on them strikes us as
"throwing out the baby with the bath
water."
Count 1:
Ordinance not substantially
related to the health,
safety, and welfare of the
public - “Substantive Due
Process” violation under the
14th Amendment
Count 2:
Unconstitutional on “equal
protection grounds”discriminatory treatment of
land owners
The 14th Amendment and Equal
Protection of the Laws



The laws of a state must treat an individual in the
same manner as others in similar conditions and
circumstances
The equal protection clause is not intended to
provide "equality" among individuals or classes
but only "equal application" of the laws
The result, therefore, of a law is not relevant so
long as there is no discrimination in its
application.
Different Levels of Scrutiny


Generally speaking, the state is only required to
lay a rational basis or a legitimate state purpose
for laws and statutes that do not treat all citizens
equally.
However, if a suspect classification is involved,
the courts will demand a compelling interest test
under strict scrutiny
The Suspect Classifications







Race, Creed
Color, National Origin
Procreation
Voting
Gender
Disability
?
Other Protected Classification
Stupidity?
The Right to Own Firearms?
Right to Life?
The Bottom Line




Focuses on how fairly or unfairly our actions distribute
benefits and burdens among the members of a group.
Fairness requires consistency in the way people are
treated.
Examples of what is offered as morally justifiable reasons
for treating people differently: need, merit, effort, fault.
The principle states: "Treat people the same unless there
are morally & civilly relevant differences between them."
City of Cleburne v Cleburne Living
Center


An early equal protection case
dealing with group homes and
persons with mental handicaps
This is an equal protection case
rather than litigation under the
Americans With Disabilities Act
because it occurred in early
1982 – before the enactment
of ADA
The Developmentally Disabled
Background



In July of 1980, an individual purchases a building with the
intent of leasing it to CLC so that they could operate it as a
group home for the mentally handicapped.
The home was intended to house a total of 13 mentally
disabled men and women. CLC staff would supervise the
residents
Cleburne City BZA rejects the application as a “residence”
and classifies it as a “home for the feebleminded.” This
type of facility requires a special use permit.
Congregate Home
Facts


A special use permit in Cleburne would need to be
renewed each year after a review by the BZA
At the hearing the public expressed grave concerns about
housing feeble-minded people in a home when they are
free to come and go





Overcrowding in the area
Protest petitions from person who live within 200 feet of the
facility
Fear of elderly residents
Located in a 500 year floodplain
Across the street from a high school (residents might be
harassed by the students)
The Trials



U.S. District Court upholds the City’s position
because the city laid some “rational basis”
Court of Appeals holds that mental retardation is
a “quasi suspect” classification and should have
required “strict scrutiny” so that the City would
have to lay a compelling basis for its actions.
The case is then passed to the U.S. Supreme
Court
Supreme Court



First, the Supreme Court rejects the notion that the City
should be subject to strict scrutiny. It does not find that
mental retardation is a suspect classification
Next, the court reviewed the reasons given by the City for
denying the special permit. In other words, does the
requirement for a special use permit for this facility single
out the residents for dis-equal treatment and violate their
equal protection rights?
In other words, under strict scrutiny the court examied
each factor and demands and explanation from the City
– the burden is one the Coty
Findings

The court notes that the city does not require a
special use permit for boarding houses,
fraternities, hospitals, sanitariums, nursing homes,
or private care facilities for the dying. It is true,
therefore “that the residents of the CLC would
be different, but no weight should be given to
this difference unless they would threaten the
legitimate interests of the city.”
Findings


Fears of the nearby or elderly residents are
based on negative attitudes rather than
legitimate concerns and are not permissible for
different treatment
A private bias toward other people may be
beyond the reach of the law, but the law
cannot, directly or indirectly, give them effect
Findings



The facility may indeed be across from the high school but
many of the resident may be students at that school
The facility may be in a 500 year floodplain but so is the
high school and most of the nearby residents
There is no evidence to support the contention that the
residents would be a treat to neighborhood safety
Overcrowding



We are urged to believe that the ordinance is aimed at
avoiding concentration of population and at lessening
congestion of the streets.
These concerns obviously fail to explain why apartment
houses, fraternity and sorority houses, hospitals and the like,
may freely locate in the area without a permit
So, too, the expressed worry about fire hazards, the
serenity of the neighborhood, and the avoidance of
danger to other residents fail rationally to justify singling out
a home such as this for the special use permit, yet
imposing no such restrictions on the many other uses freely
permitted in the neighborhood.
Decision


In short, the requirement for a special permit and its
subsequent denial appears to rest on the irrational fears of
the residents and the City against the residents of the
home. The City is ordered to issue the special use permit.
This is a classic denial of equal protection
Future Resident’s of the Cleburne
Living Center
One child in
800 live births
has Down’s
Syndrome. One
in 10,000 is
Mosaic
Taxpayers of Weymouth Twsp v
Weymouth


The zoning ordinance of Weymouth Township NJ excluded
all mobile homes except in one Planned District where
they were allowed as “affordable housing” for persons
aged 52 and over.
The Weymouth Taxpayers Associated filed suit asserting
that their equal protection rights were violated in that the
elderly could live in mobile homes but children or younger
adults could not
The Trial Court

The trial court held that “age restrictions” were
beyond the power of regulatory land use
controls and violated the equal protection
clause of the NJ constitution
NJ Supreme Court



This 1975 case predates the amended Federal
Fair Housing Act that allows exclusive housing for
elderly that meets certain criteria
The plaintiff did not demonstrate that Weymouth
Township lacked a rational basis for enacting this
particular planned district
The federal equal protection clause does not
demand that all persons be treated equally. It
only requires that the dis-equal treatment of
similarly situated persons be rationally related to
a justified state interest
Age Limits


The cutoff age for the planned district is age 52 – although
this seems somewhat arbitrary Justice Holmes said:
“When a legal distinction is determined, as no one doubts
that it may be, between night and day, childhood and
maturity, or any other extremes, a point has to be fixed or
a line has to be drawn, or gradually picked out by
successive decisions to mark where the change takes
place. When there is no mathematical or logical way of
fixing it precisely, the decision of the legislature must be
accepted unless we can say that it is very wide of any
reasonable mark.”
Decision



The N.J. Supreme Court found that age
restrictive communities were an important
addition to affordable housing for the elderly – a
rational basis.
They also found that setting aside housing
opportunities was an incidental restriction on
due process rights
This process does not offer more rights to the
elderly
Don’t Fool With Old Ladies
The Frozen Hose Case – Or, How Did
We Get Dumped On?
Village of Willowbrook v Grace Olech
• The Village installs a drainage culvert near the Olech’s that
causes flooding on the property
• The Olech’s sue the Village for flood damage
• In the meantime, the Village undertakes a project to bring
municipal water to the area so the residents can
disconnect from water wells
• Grace pays $9,300 – her share of the project
Olech – Local Map
Olech
Home
Hose
30 ft. street
Now Comes The Village
• A month later the Villages asks for a 33’
easement in addition to the payment
• The Village hoped to install a road and
other public utilities
• The easement is more than twice the
customary 15’ asked from everyone else
in the Village
• Grace tells the Village to Take a Walk
The Plot Thickens
• The Olech’s well fails
• They run a “garden hose” across the street to the
neighbor to pump water
• The Village relents and accepts the 15’
easement and begins the project in November
of 1995
• The hose freezes
• They are without water until the project is finished
– March 1996
The Attorneys Earn Their Fees
• Grace files suit in U.S. District Court in April 1998
• “Willowbrook picked on her out of sheer
vindictiveness to grant a 33’ easement when it
only required 15’ from other residents. They
retaliated because they were mad at me for
suing them”
• The District Court dismissed the case – lack of
proof of harassment by Village
The U.S. Court of Appeals
• Court of Appeals reverses finding of the District Court and
found that the Village did display ILL WILL against Grace
• “If the power of the government is brought to bear on a
harmless individual …. The individual ought to have a
remedy in federal court”
Harmless

Harmless Indeed?
The Supreme Court
• The Supreme Court grants review and although
they did not reach the same ILL WILL conclusion,
they did find for the “Widow Olech”
• “The purpose of the equal protection clause is to
secure every person within the State’s jurisdiction
against intentional and arbitrary discrimination –
even if it is a class of one
Conclusion
• A person – a class of one – can sue for equal protection
claims even if they are not a member of a protected
classification
What the Village
officials felt like after
the decision and
paying a lot of $$$$$$
The Widow Mrs. Blodwin Olech and
Her Daughter Rogene
Grace Olech
and her
daughter after
hearing about
the final
decision in their
Supreme Court
Case
The Moral Of The Story?
Today’s Parting Shot
Our Heads of State - Unmasked