Complaint Based Zoning
Enforcement and the Equal
Protection Clause
Laine Sklar
Senior Assistant Town Attorney
Town of Marana
lsklar@maranaaz.gov
Willowbrook v. Olech
 Willowbrook v. Olech, 528 U.S. 562 (2000)
– The Olechs applied to have their property connected to
the municipal water supply. The Village of Willowbrook
conditioned the connection on granting a 33 foot
easement. The Olechs objected because the Village had
only required a 15 foot easement from other property
owners. Three months later the Village agreed to connect
the Olechs with a 15 foot easement.
– The Olechs sued claiming the initial demand for the 33 foot
easement violated the Equal Protection Clause because it
was irrational and wholly arbitrary, and that it was
motivated by ill will due to the Olechs previously filing a
successful lawsuit against the Village.
Willowbrook v. Olech
 Class of One Equal Protection Claims
– A successful plaintiff must allege that she has been
intentionally treated differently from others similarly
situated, and that there is no rational basis for the
difference in treatment.
 The Supreme Court found that analysis applicable
in Olech
– The Village demanded a 33 foot easement from the
Olechs, where it only required a 15 foot easement from
other similarly situated property owners
– The demand was alleged to be irrational and wholly
arbitrary
– The Village ultimately connected the property after
receiving the 15 foot easement, showing the adequacy of
the standard requirement
Willowbrook v. Olech
 Ill Will
– The per curiam opinion did not reach the issue of
subjective ill will that was relied on by the Court
of Appeals, stating that the other allegations
were sufficient to state a claim for relief
– Justice Breyer’s concurrence relied on the “ill will”
factor, stating its presence should minimize
concern that the case would transform run of the
mill zoning cases into cases of constitutional right
9th Circuit Cases since Olech
 Erickson v. County of Nevada, 2013 U.S. Dist. LEXIS 43007, 7-8,
2013 WL 1279167 (E.D. Cal. Mar. 26, 2013).
– Plaintiffs and Verizon both sought to build on a “visually important
ridgeline.” Verizon’s permit was granted, Plaintiff’s permit was
not.
– The Court pointed out that the two sought distinct permits from
the County to build different structures even though they were
both building along the same ridgeline: Plaintiffs sought a permit
for a residence, while Verizon sought a permit for a
communications tower.
– Additionally, the two permits were controlled by two different
regulations.
– The court found that “unlike the plaintiff in Olech who sought the
same type of water service as the other property owners, Plaintiffs
here are not similarly situated to Verizon.”
9th Circuit Cases since Olech

Teixeira v. County of Alameda, 2013 U.S. Dist. LEXIS 36792, 11-12 (N.D.
Cal. Feb. 26, 2013).
– Plaintiffs sought to open a gun store in Alameda County. The County had
a regulation that a gun store cannot be located within 500 feet of
residentially zoned areas and certain kinds of schools and businesses.
– Plaintiffs measured the distance from their front door to the front door of
the nearest residence and found that it was more than 500 feet.
– The County performed their measurement and found that the gun store
was within 500 feet of a residentially zoned area. The County performed
their measurement from the front door of the closest house in the
neighboring residential zone to the closest part of plaintiffs' building.
– Plaintiffs brought a class of one equal protection claim. The claim failed
because Plaintiffs failed to allege sufficient facts indicating that
defendants intentionally treated plaintiffs differently from other similarly
situated businesses without a rational basis. Plaintiffs' conclusory assertions
that the defendants have not engaged in unreasonable measurements
against similarly situated businesses and/or the defendants have granted
conditional use permits and variances to similarly situated businesses" are
not enough.”
9th Circuit Cases since Olech

Scocca v. Smith, 2012 U.S. Dist. LEXIS 87025, 14, 2012 WL 2375203 (N.D.
Cal. June 22, 2012).
– Plaintiff applied for a concealed carry permit. Under the California Penal
Code, the sheriff may issue to a person a license to carry a concealed
weapon upon proof that, inter alia, "the person applying is of good moral
character [and] that good cause exists for the issuance. The sheriff
denied the Plaintiff’s permit.
– Plaintiff asserted that the sheriff improperly denied his application
because his good moral character is "functionally equivalent" to that of
the seventy persons whom the sheriff has licensed, and his good cause is
also "functionally equivalent" to that of the seventy persons whom the
sheriff has licensed.
– Plaintiff’s claim failed because he failed to specifically identify how he
was similarly situated to others. The Court cited with approval Ruston v.
Town Bd. for the Town of Skaneateles, 610 F.3d 55 (2d Cir. 2010), which
states “[c]lass-of-one plaintiffs must show an extremely high degree of
similarity between themselves and the persons to whom they compare
themselves.”
9th Circuit Cases since Olech

Mead v. City of Cotati, 2008 U.S. Dist. LEXIS 94238, 32-34, 2008 WL 4963048 (N.D.
Cal. Nov. 19, 2008).
–
–
–
Plaintiff applied to build four duplexes on lots he owned on Cotati, CA. While his
application was pending, Plaintiff became aware that as a condition of his permit
he would be required to comply with the City's affordable housing plan, which
required that each residential development be designed and constructed to
provide at least 20 percent of the total units as inclusionary units restricted for
occupancy by moderate-, low- or very low-income households.
The Plaintiff’s claim failed due to the fact that he did not establish that he had been
treated differently from similarly situated individuals. The Plaintiff did not allege that
he was treated differently than other developers with similar project proposals.
The Court found that his claim appeared to be based on his view that developers
are being forced to subsidize housing for low- and moderate-income individuals,
whereas other taxpayers are not. The Court explained that individuals pursuing
development projects are not situated similarly to other taxpayers, in that they are in
a unique position to create affordable housing. Furthermore, the Court found that
requiring developers to set aside twenty percent of new housing for low- and
moderate-income individuals is rationally related to the City's interest in increasing
the amount of affordable housing within its limits.
How does this relate to Complaint
Based Zoning Enforcement?
 By pursuing complaint based zoning enforcement,
municipalities are not necessarily treating likes alike
 This could open the door to class of one equal
protection claims
 In order to avoid these claims, when a municipality
receives a zoning complaint, the municipality
should evaluate whether there are similarly situated
properties that are also in violation. If that is the
case, enforcement action should be taken against
all similarly situated violators
Good news, bad news
 Bad news first
– Although Justice Breyer’s concurrence in Olech, arguing for an “ill
will” factor, has been cited with approval here and there, it isn’t
binding at this point in time. So, an equal protection claim could
still be successful even if the municipality is not acting in a
vindictive manner or as a result of animus toward the Plaintiff
 The good news
– It is very difficult to prove that one is similarly situated. Plaintiffs
must be able to show specifically what makes them similarly
situated to someone else who was treated differently
– The municipality’s action must be intentional for a claim to be
successful, so if your failure to treat likes alike is unintentional due
to a lack of knowledge that the likes exist, you should be okay