David Sowers v. Powhatan County, Virginia

Filing 920091015

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-1633

DAVID J. SOWERS, Plaintiff - Appellant, v. POWHATAN COUNTY, VIRGINIA; BOARD OF SUPERVISORS OF POWHATAN COUNTY, VIRGINIA, Defendants ­ Appellees, and ROBERT R. COSBY, Party-in-Interest.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:06-cv-00754-REP)

Argued:

September 24, 2009

Decided:

October 15, 2009

Before NIEMEYER and MICHAEL, Circuit Judges, and James P. JONES, Chief United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Patrick Michael McSweeney, MCSWEENEY, CRUMP, CHILDRESS & TEMPLE, PC, Richmond, Virginia, for Appellant. Robert A. Dybing, THOMPSON MCMULLAN, PC, Richmond, Virginia, for

Appellees. ON BRIEF: Wesley G. Russell, Jr., MCSWEENEY, CRUMP, CHILDRESS & TEMPLE, PC, Richmond, Virginia, for Appellant.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM: This application Virginia. appeal by involves David J. the denial in of a rezoning County,

filed

Sowers

Powhatan

Sowers contends that the Powhatan County Board of

Supervisors (the Board) denied him equal protection of the law by departing from its his typical application The he procedures Board suit and by

initially approved court.

denying Sowers's

application. after

ultimately in state

application

filed

Sowers later sued the Board in district court under 28

U.S.C. § 1983, claiming that his application would have been approved sooner, and that he would have avoided litigation

expenses, had the Board not violated his constitutional rights. The district court granted summary judgment to the Board. We

affirm because Sowers does not present a genuine factual dispute over whether he he was similarly not show situated that to other zoning a

applicants,

and

does

the

Board

lacked

conceivable rational basis for its differential treatment of his application. I. Sowers is a Virginia land developer who applied to the Board in June 2004 for the rezoning of a 250.9-acre tract of land from agricultural to residential. As part of his

application Sowers tendered a voluntary cash proffer of $3,530 per lot to offset the impact costs of his proposed subdivision. 3

This amount was the Board's suggested minimum at the time.

A

few weeks after Sowers filed his application, the Board raised its suggested proffer amount to $6,395 per lot. Sowers refused He was are on

official requests that he increase his cash proffer. entitled voluntary proffers. (Va. 1999). to refuse; zoning under Virginia law, cash be

proffers

and

decisions

cannot

conditioned

Gregory v. Bd. of Supervisors, 514 S.E.2d 350, 353

In Virginia a rezoning application is reviewed by the local planning commission before it is presented for

consideration by the local governing body.

Sowers's application

was first reviewed by the Powhatan County Planning Commission (the Planning Commission or Commission) in September 2004.

Based on concerns voiced by residents and the Commission, Sowers revised his non-cash proffers and received a deferral of his public hearing before the Commission. 2004 Sowers submitted further At the hearing in October non-cash submitted proffers his to

amended he

address

impact

concerns.

Although

amended

proffers after the deadline, the Commission voted to consider them. Several citizens spoke at the hearing in opposition to proposed subdivision, articulating concerns such as

Sowers's

increased traffic and the loss of the area's rural character. Many residents also sent letters in opposition. Additionally,

4

the Virginia Department of Transportation (VDOT) raised concerns regarding the traffic consequences of Sowers's proposal. The Planning Commission gave Sowers the option of

another deferral to address these concerns.

Rather than opt for

a deferral, Sowers requested that his application be sent to the Board for a vote. deposition that this The Commission director testified in his choice was "unusual." J.A. 670. The

director characterized Sowers as a "tough negotiator" compared to other applicants, adding that although Sowers was not totally uncooperative, he was unlike other applicants because he was less willing to negotiate. The Planning Commission sent Sowers's application to the Board with the recommendation that it be denied as it then stood. Sowers again revised his non-cash proffers to address However, because he did not submit the proffers at days the before the Board's not no to November consider 17, them. had 2004, public was

concerns. least ten

hearing,

Board

voted in

This the

admittedly

exceptional;

other

instance

Board

refused to accept late proffers.

Two days before the public

hearing, the Planning Commission recommended to the Board that it either (1) remand Sowers's application to the Commission for consideration of remaining concerns or (2) defer his hearing. Despite the Commission's recommendation, the Board refused to

5

remand or defer.

Like the late proffer rejection, the Board's

refusal was exceptional. In the meantime, one Board member, Russell Holland, had recused himself from voting on Sowers's application because he had been elected on a no-growth platform and owned 56 acres of the tract for which Sowers sought rezoning. contracted to buy the 56 acres from Holland.) expressed concern that Holland's interest (Sowers had

Several citizens him from

precluded

representing their interests.

Holland's name even appeared as a

joint applicant on Sowers's application, though Sowers contends that this was an error. The Board denied Sowers's rezoning application. The

Board member who made the motion to deny gave as his reasons the "unusual applicant circumstances [Sowers] to of this case and work the with refusal the of the

initially

Planning

Commission."

J.A. 436.

Sowers challenged the denial by suing In January 2006, while his state suit It

the Board in state court.

was pending, the Board voted to reconsider his application.

approved his application in May 2006, and Sowers voluntarily dismissed his state suit. Sowers then sued the Board in the Eastern District of Virginia under 42 U.S.C. § 1983, alleging that the Board's

unprecedented refusal to consider his late non-cash proffers, defer consideration, or remand 6 to the Planning Commission

amounted

to

an

Equal

Protection

violation.

Although

his

application was ultimately approved, he argued that it would have been approved earlier had the Board considered the revised proffers and deferred or remanded his application. The Board

concedes that the only ways in which Sowers refused to work with the Planning Commission were his refusal to increase his cash proffer and his failure to address VDOT's traffic concerns. district several court concluded, reasons however, for the that the to and record treat The

evidenced Sowers's

plausible

Board

application and that for

differently, failed County's

both to

procedurally these

substantively, rational court

Sowers the

negate

conceivable

bases

differential

treatment.

The

granted summary judgment to the Board, concluding that Sowers (1) did not raise a genuine factual dispute over whether he was similarly situated to other zoning applicants and (2) did not show that the Board lacked a rational basis for its different treatment of his application. Sowers appeals.

II. We review the district court's grant of summary

judgment de novo, "viewing the facts in the light most favorable to, and drawing all reasonable inferences in favor of, the

nonmoving party."

E.E.O.C. v. Cent. Wholesalers, Inc., 573 F.3d Summary judgment is appropriate only 7

167, 174 (4th Cir. 2009).

if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).

Sowers premises his Equal Protection claim on being a "class of one," which requires him to from show that he was

"intentionally

treated

differently

others

similarly

situated and that there is no rational basis for the difference in treatment." (2000). Vill. of Willowbrook v. Olech, 528 U.S. 562, 564

The summary judgment record indisputably establishes

that Sowers did not make either showing. A. Sowers did not raise a genuine factual dispute over whether he was similarly situated to other zoning applicants in Powhatan County. proposal was The County Attorney observed that Sowers's controversial," that it encountered

"extremely

"more and better organized opposition . . . than . . . most other rezoning or conditional use permit applications," and that the opposition "was not just limited to citizens living adjacent to the affected area." some of the other J.A. 495. applications traffic Even when it is accepted that that Sowers and points aroused to as

comparable

also

raised

concerns

public

opposition, the record still indisputably demonstrates that the public opposition to Sowers's application was so fervent as to 8

render letters

him

differently

situated.

Dozens and

of

citizens many spoke

sent in

protesting

Sowers's

proposal,

opposition at the hearings before the Planning Commission and the Board. Moreover, unique traffic Sowers's proposed subdivision regarding presented All

concerns,

particularly

access.

traffic entering and exiting the subdivision would pass through an existing subdivision, creating a "piggyback" or "funnel"

traffic effect. application (the

J.A. 403-04. McClure

Sowers maintains that another also presented funnel

application)

traffic concerns. the funnel

Even if this is true, the record shows that were especially acute with Sowers's

concerns

application. Sowers standpoint of was also differently relations, situated as from by the the

interpersonal

evidenced

Planning Commission director's characterization of Sowers as a "tough negotiator" who was unlike any other applicants with whom he had ever dealt. other applicants by Further, Sowers differentiated himself from skirting typical procedures through his

request that his application be submitted directly to the Board, thereby removing it from initial Planning Commission

consideration. Even if we were to give Sowers the benefit of an

inference that other zoning applications were similar to his 9

with respect to traffic concerns, public opposition, and hardline negotiators, his application was materially different from others due to the recusal of Board member Holland. The recusal

created a unique situation in which the residents most directly impacted by Sowers's proposal were deprived of expected

representation.

Even if Holland was mistakenly listed as a co-

applicant with Sowers, the disclosure that a Board member who had run on a no-growth platform had a vested interest in a rezoning application for residential expansion is enough to show that Sowers was not similarly situated to other applicants. B. Sowers's alternative ground: Equal he Protection did not claim fails on an

negate

every

conceivable While it

rational basis for the Board's differential treatment.

is undisputed that the Board deviated from past practice when it refused to defer, remand, or consider late proffers in Sowers's application, this is not enough to establish an Equal Protection violation when no suspect classification or fundamental right is at issue. Equal Protection is "not a license for courts to

judge the wisdom, fairness, or logic of legislative choices." F.C.C. v. Beach Commc'ns, 508 U.S. 307, 313 (1993). "In areas

of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection 10

challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Id. Sowers urges that because no statutory classification is at issue here, and because zoning decisions are adjudicative rather than general and are does circumscribed not apply by state its law, the

rational

basis

inquiry

with

typical

deferential force.

This Court, however, applies the rational Tri-County

basis test to local permit and zoning decisions.

Paving, Inc. v. Ashe County, 281 F.3d 430, 438-39 (4th Cir. 2002); Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 820 (4th Cir. 1995). "Whether a statute or administrative action

employs a classification explicitly or implicitly," the Equal Protection analysis is the same. The "vast majority Sylvia, 48 F.3d at 820. of governmental action --

especially in matters of local economics and social welfare, where state governments exercise a plenary police power --

enjoys a `strong presumption of validity' and must be sustained against rational a constitutional to some challenge `so long as it bears a

relation

legitimate

end.'"

Van

Der

Linde

Hous., Inc. v. Rivanna Solid Waste Auth., 507 F.3d 290, 293 (4th Cir. 2007) (emphasis in original). We conclude that Sowers

failed to meet the "heavy burden of negating every conceivable basis which might reasonably 11 support" the differential

treatment.

Id.

It is not for this court to assess the "wisdom,

fairness, or logic (or lack thereof)" of the Board's conduct. Id. at 294. "The `rational' aspect of rational basis review

refers to a constitutionally minimal level of rationality; it is not an invitation to scrutinize either the instrumental

rationality of the chosen means" nor the "normative rationality of the chosen governmental purpose." Id. at 295.

Sowers argues that if state law bars certain grounds for a decision, then a decision based on those impermissible grounds review. necessarily cannot pass muster under rational basis

Our precedent makes clear that state law is independent A "violation of state law is not Sunrise Corp. v. (4th of Cir. 2005). or a

from a rational basis inquiry.

tantamount to a violation of a federal right." City of Myrtle Beach, 420 even is F.3d if 322, the enough 328

"[D]isparate illegal

treatment, action,

product by

erroneous to state

state

not

itself

constitutional claim."

Sylvia, 48 F.3d at 825.

Therefore, even

if the Board's differential treatment was grounded in part on Sowers's failure to increase his cash proffer, this reason,

though illegal under state law, does not necessarily yield an Equal Protection violation. In this case there was no Equal Protection violation because there were several other conceivable rational reasons for the Board's decision. Rational 12 basis review does not

require us to determine the Board's actual motivation. Commc'ns, 508 U.S. at 315.

Beach

We need only decide whether the

Board had "plausible reasons" for its different treatment of Sowers's application. process that Id. at 313. rational The deference to democratic basis review means that we

undergirds

consider only whether the Board "reasonably could have believed that [its] action was rationally related to a legitimate

governmental interest." Because

Tri-County Paving, 281 F.3d at 439. is unable to "negative every

Sowers

conceivable basis which might support" the Board's action, he cannot prevail on his Equal Protection claim as a matter of law. Beach Commc'ns, 508 U.S. at 315 (emphasis added). His initial

request that his application go to the Board for a vote rather than through the Planning Commission provided a rational basis by itself for the Board to reject his later request for more time and the opportunity to submit further revisions. Sowers's

own procedural deviation, combined with his tough negotiating stance, could also have led the Board reasonably to believe that further work with Sowers would require too much time and effort and prove fruitless in the end. to his application, raised, and the the The vehement public opposition traffic of a concerns that his a

unique recusal

proposal

Board

member

with

perceived self-interest also clearly provided rational bases for the Board's action. Even if the only way (other than his

13

refusal to increase his cash proffer) in which Sowers refused to work with the Planning Commission was his failure to address VDOT's traffic concerns -- concerns which Sowers maintains he did address in his late-filed proffers -- the Board could still have reasonably determined that re-engaging with Sowers would not have been productive. Contrary does furnish a to Sowers's basis contention, for public opposition in

rational

differential

treatment

zoning decisions. Indeed, the very purpose of the deferential rational basis inquiry is to respect the democratic process, albeit with an eye to whether purely odious classifications are at work. The cases that Sowers cites are inapplicable. In City

of Cleburne v. Cleburne Living Center, 473 U.S. 432, 447 (1985), the Supreme Court struck down a zoning ordinance that prohibited the operation of a group home for mentally retarded individuals and observed that a "bare . . . desire to harm a politically unpopular group" is not a legitimate state objective.

Similarly, in Romer v. Evans, 517 U.S. 620, 633 (1996), the Court invalidated a state by a constitutional trait" amendment that and

"identifie[d]

persons

single

(homosexuality)

"then denie[d] them protection across the board."

The Court

reiterated that the "bare . . . desire to harm" an unpopular group is not a legitimate interest. opposition to Sowers's zoning Id. at 634. did The public's not stem from

application 14

naked animosity or baseless fear, but from genuine concerns over traffic, safety, and the loss of rural surroundings. His was

not a case of "mere negative attitudes . . . unsubstantiated by factors which are properly cognizable in a zoning proceeding." Cleburne, 473 U.S. at 448. C. For the foregoing reasons, we conclude that Sowers has not raised a genuine issue of material fact as to whether he was similarly situated to other zoning applicants. that the Board lacked of a conceivable his rational Nor has he shown basis for its the

different

treatment

application.

Accordingly,

judgment of the district court is AFFIRMED.

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