Equal Protection in Property and Planning

Abstract

Private property owners occasionally chafe and complain and even bring suit when the right to use their property is subjected to government interference. One of the most maddening forms of government interference is a policy that appears to burden an owner's property differently than other property that appears to be similarly situated. This is especially galling when the burden seems harsh. For property owners experiencing this discrimination, the remedy should be the Equal Protection Clause of the U.S. Constitution. However, equal protection claims, in the context of planning and land use decisions involving property interests, are generally a losing proposition. Equal protection claims against governments tend to fail because of the standard of review used by courts. This standard is (for plaintiff property owners) the dreaded rational basis review, which inevitably means the plaintiff property owner loses. In recent years, a handful of successful equal protection cases have arisen where plaintiffs have alleged that they were so singularly picked on that they became a "class of one." Even so, such successful cases are exceptionally rare and carry with them a difficult burden, which is to demonstrate official government malice or animus toward the plaintiff.