Agenda - Planning Commission - 07/09/2015

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June 10, 2015 1 Volume 9 1 Issue 11 Zoning Bulletin Miller pointed to Kevin Metcalfe ("Metcalfe") and his approved 45 -unit condominium development project, which was on the same street as Miller's proposed project. Miller noted that Metcalfe's project was ap- proved without opposition. The district court dismissed Miller's class -of -one equal protection claim. (Miller's claim was a "class -of -one" claim because it was not a claim brought as a member of a racial, gender, ethnic or other group.) It concluded that the problems with citations and demolitions on Miller's property precluded a comparison with Metcalfe's project, which had not had dilapidated buildings and asbestos. Miller appealed. DECISION: Judgment of district court affirmed. The United States Court of Appeals, Seventh Circuit, held that Mil- ler's class -of -one equal protection claim failed because: (1) Metcalfe's project was not a suitable comparator for Miller's claim; and (2) the denial of Miller's project was rationally related to persistent asbestos and building code problems on the property. The court explained that the equal protection rule that people should be treated alike under like circumstances and conditions is not violated when the state action involves discretionary decision making based on individualized assessments—such as with the approval process and code enforcement at issue here. The court said that is true even if one person is treated differently from others because treating like individuals differ- ently is an accepted consequence of the discretion granted to state of- ficials in zoning decisions,. and allowing an equal protection challenge based on the arbitrary singling out of a particular person would undermine the very discretion that such state officials are entrusted to exercise. Addressing Miller's specific claim of being treated differently from Metcalfe with regard to each of their proposed condominium develop- ment projects, the court found that Metcalfe was not an adequate comparator because he was not "identical or directly comparable" to Miller "in all material respects." While Miller's property required multiple rounds of asbestos removal and eventual demolition, Metcalfe's project was not alleged to have had any similar problems. Nevertheless, the court said that the lack of a comparator did not doom Miller's claim. As long as Miller could exclude rational explanations for why the City targeted her, her claim could proceed. In other words, for a successful class -of -one equal protection claim, Miller had to allege that the City lacked a rational basis for singling her out for intentionally discriminatory treatment. The court found Miller failed to meet that burden. Regardless of whether City officials were motivated by discrimi- natory animus toward Miller and her project, as she had alleged, the court found that the City's denial of approval of Miller's proposed con - 6 © 2015 Thomson Reuters