Agenda - Planning Commission - 10/05/2006

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Page 8 -September 25, 2006 Z.B. ( agricultur~ zone so she could continue operating the kennel. Johnson was told when she bought the property that parts of it were in a flood plain and that there was a 300-foot setback requirement for a kennel. However, the county enacted a regulation that allowed noise mitigation mea- sures in place of the setback requirement. The substitution had to be approved through an application for a special use permit. ~ Johnson applied for a special use permit to avoid the setback requirement, proposing to build a fence to control noise. However, the county determined that the proposed location of the fence was in the floodway. It recommended that Johnson apply to the Federal Emergency ManagementAgency (FEMA), the agency that made flood plain determinations for a Letter of MapAmend- ment (LOMA). Johnson applied for the LOMA, but she did not follow up on a request to provide more information. Johnson stated that she did not follow up on the LOMA application because she believed that the county would,override FEMA's decision. Ultimately,Johnson was cited for licensing violations, the kennel was forced to close, and Johnson lost the property through foreylosure. She sued the county, claiming that she was denied the opportunity to run a business due to a con- spiracy among county officials t~ deny her equal protection of the law based on f her race, constitutional due process violations, and the taking of her property. ~" . DECISION: Dismissed. To prove her claim, Johnson hadto show that: 1) a conspiracy involving two or more people existed; 2) the conspiracy existed to deprive, either directly or indirectly, her equal protection of the law; 3) an act that furthered the con- spiracy had occurred; and 4) an injury was caused as a result of that act. Also, because Johnson alleged that the conspiracy was based on her race, she had to show that the conspirators had a raced-based motivation. . All of the parties named in Johnson's lawsuit were county employees:' By . law, a government entity could not conspire with itself; agents or employees of a government agency acting within the scope of their duties cannot be consid- ered conspirators. The county was a single entity, and therefore the very first prong of the conspiracy test failed. Also, although the court acknowledged that the flood-plain determination might have been arbitrary, there was no evi- dence that the county had a discriminatory motivation in its actions toward Johnson. Johnson argued that other property owners had structures that en- croached on the flood zone, but she failed to show that those situations were sufficiently similar to hers to support her claim of discrimination. Finally, the court found that Johnson was not actually prevented from op- erating the kennel based- on the zoning disputes but rather because of investi- gative findings concerning her care of the animals in her kennels. As with the earlier claims, Johnson's equal protection claim was dismissed. 92 . @ 2006 Quinlan Publishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048.