Real Estate & Property Law

Pleading Class of One Equal Protection Land Use Claims

By Robert Thomas (inversecondemnation.com)

The most easily recognizable equal protection claim is one in which the plaintiff claims membership in a protected group, and some form of discrimination against the class. Another type of equal protection claim is the "class of one" claim under Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam), where the Court held that a landowner who claimed village officials retaliated against her for winning an earlier lawsuit against them was entitled to bring a claim for an equal protection violation even though she was not a member of any protected class, or any group at all. If she was being singled out from others who were similarly situated for disparate treatement, she had a claim. The latest case is in the latter category.

In SBT Holdings, LLC v. Town of Westminster, No. 08-1512 (1st Cir. Nov. 6, 2008), the U.S. Court of Appeals for the First Circuit clarified the pleading requirements for a class of one equal protection claim. The facts of the case are straightforward. Massachusetts property owners got caught in a jurisdictional squeeze between the state environmental protection agency and a township conservation commission. After runoff from their property affected downstream wetlands, the state agency obtained exclusive jurisdiction by issuing a remediation order. Apparently, under Massachusetts law once the state agency issues such an order, its jurisdiction over the remediation process is exclusive. 

However, despite the fact that the town's conservation commission both understood state law and knew that the state agency had already acted, it subjected the property owners to several of its own remediation and enforcement orders, and is alleged to have engaged in some very underhanded conduct, including suing the property owners in a state court action dismissed as "frivolous and wholly insubstantial."  See, e.g., slip op. at 5-7. 

Off to federal court went the property owners, alleging constitutional claims for equal protection and under our old friend the federal civil rights statute, 42 U.S.C. § 1983. The district court dismissed the complaint for failure to state a claim, because the plaintiffs did not adequately allege they were treated differently from others who were similarly situated for illegitimate reasons. Slip op. at 9-10.  The First Circuit reversed:

A claim for a "class of one" equal protection violation "is cognizable when -- and only when -- a '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.'"

Slip op. at 11 (quoting Olech, 528 U.S. at 564). The court rejected the town's argument the landowners had not adequately alleged they were being treated differently. The complaint alleged the town did not attempt to subject the owners who had purchased the property after it was developed to the town's remediation measures. The First Circuit assumed that the environmental regulations ran with the land, and held that the complaint sufficiently alleged these subsequent owners were "similarly situated."  The court also held the complaint alleged the town was selectively enforcing the law since it was not disputed it attempted no enforcement against the new owners. After rejecting the town's other arguments on appeal (res judicata, lack of plaintiff standing), the court reversed the district court, and remanded the case to allow the property owners the opportunity to prove their case.

See this post for how class of one equal protection claims are treated in the Ninth Circuit.

Full post as published by inversecondemnation on November 07, 2008 (boomark / email).