Can Equal Protection Violations be Used to Challenge Land Use Decisions?

Like any law, a zoning law or other land use statute can be challenged on the basis of discrimination under the legal doctrine of Equal Protection. Likewise, a decision to grant or deny an application for certain land use can be similarly challenged.

Equal protection under the law is a requirement of both the federal and North Carolina Constitutions. In general, equal protection requires that laws be applied equally to persons who are similarly situated unless the government has a legitimate purpose for treating people differently. Thus, for a proper purpose, high-income taxpayers can be taxed differently than low-income taxpayers.The principle of equal protection is a limitation on ALL types of government action including enactment of statutes, administration and enforcement of laws and regulations. This includes zoning and other land use laws and decisions made by zoning boards and city/county governments. It is important to note that a law might appear neutral on its face. However, the administration or enforcement of a law can result in an unequal application by favoring one class of persons and disfavoring another.

Equal Protection law is legally complicated, but, in simple terms, courts will evaluate a claim that equal protection has been violated, by first, looking at the statutory purpose and determining whether the end that the government seeks to achieve is legitimate. If so, the courts will give "substantial deference" to the legislative or decision making body. But still, the courts will continue their examination evaluating whether the classification appropriately furthers the legislative purpose. As courts have stated it, legislation and governmental decisions will be upheld "if the classification utilized by the statute is rationally related to a legitimate state interest."

Proving an equal protection violation requires proof of INTENT. That is, it must be shown that the government intended to discriminate. This is often called having a "discriminatory animus." Courts have looked to various factual issues in evaluating equal protection claims including:

• Is there evidence of a "consistent pattern" of actions by the decision making body disparately impacting members of a particular class of persons?
• Is there a history of discrimination by the decisionmaking body or the jurisdiction it represents?
• What is the specific history of the particular statute or governmental decision being challenged?
• Is the challenged statute/decision a significant departure from normal procedures?
• What did the lawmakers/decision makers say on the record or in minutes of their meetings?

As can be seen, making an equal protection challenge to a zoning law or land use decision is complicated and will be difficult.

A leading North Carolina case is Coucoulas/Knight Properties, Inc. v. Hillsborough, 683 SE 2d 228 (NC Court of Appeals 2009). In that case, the Board of Commissioners of the Town of Hillsborough denied an application for a rezoning and for a conditional use permit. The landowner applicant -- Knight Properties -- appealed the Board's denial and argued, among other things, that the denial was a violation of equal protection.

The North Carolina Court of Appeals disagreed, holding that they were "... unable to identify any evidence, let alone substantial evidence, that plaintiff [Knight Properties] was treated differently from others similarly situated."

The two main bases for the equal protection violation claim was comments made by Board members that supposedly showed discriminatory intent and the fact that the Board had supposedly approved other similar projects. However, the Court of Appeals held that the comments of the Board members simply reflected differing opinions by various members. The comments were not evidence of undue discrimination and different treatment of similarly situated properties. Further, upon review of the facts in the record, the Court of Appeals held that it could not find any similarly situated property where a similar request had been approved. There were no similar properties in terms of size, proposed use, density, historic nature or any other factor. For these reasons, the Court of Appeals found there to be no equal protection violation.

For more information, and to schedule a confidential consultation with experienced and dedicated zoning and land use attorneys in Charlotte, contact Arnold & Smith, PLLC. Use our “Contact” page or give us a call at 704-370-2828. We handle land use, zoning and condemnation legal matters in Mecklenburg County and elsewhere in North Carolina. We have offices in Charlotte, Lake Norman, and Union County.