Agenda - Planning Commission - 03/03/2016

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Zoning Bulletin January 25, 2016 I Volume 10 1 Issue 2 between two or more relevant persons or groups." When claiming the clas- sification was based on racial discrimination—as Johnson did here—"the plaintiff must allege and prove that he received treatment different from that received by similarly situated individuals and that the unequal treat- ment stemmed from a discriminatory intent," said the court. Here, the court found that Johnson "produced zero evidence that he was treated differently than similarly situated property owners—a necessary el- ement of an equal -protection claim." The court found that "[n]o other prop- erty owners applied for, let alone were granted based on their race, the same special exemption Johnson was denied." The nine homeowners that Johnson had alleged as having been permitted to build a "house behind a house," had built their homes three decades or more prior to Johnson's request and before the City adopted the Code containing the ordinance mandating homes have convenient access to a public street. Because Johnson had no evidence that the City distinguished his ap- plication for a special exemption from any other person—let alone a person of a different race—the court found that he failed to meet his burden of pro- duction on his equal -protection claim. With regard to Johnson's substantive due process claim, the court, explained that because the City's decision to deny the special exemption was "quasi -legislative," it would not violate Johnson's substantive due pro- cess rights if it was " 'at least debatable' that the City had a conceivable rational basis for its decision." The court found it "at least debatable that the Board's decision to deny Johnson a building peiniit was rationally re- lated to a legitimate government interest." The ordinance was designed to promote the welfare and safety of City residents by ensuring that fire trucks and other emergency and service vehicles could access the City's homes and buildings. Here, the court found that there was a "conceivable rational basis" for the City's decision that Johnson's proposed home did not comply with the direct -and -convenient -access ordinance. The City did not believe the house could be "so located as to provide safe and convenient access for servicing, fire protection, and required off-street parking." So its decision, as a matter of law, was not "arbitrary" and could not fo,ni the basis of a vi- able substantive -due -process claim, concluded the court. See also: Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 49 Fed. R. Evid. Serv. 322 (5th Cir. 1998). Fees—Developers seek refund of paid impact fees Developers claim town was negligent in assessment and expenditure of the fees Citation: Town of Londonderry, v. Mesiti Developinent, Inc., 2015 WL 7816131 (N.H. 2015) © 2016 Thomson Reuters 9