Zoning applicants fail to show discriminatory animus

Where plaintiffs alleged the Chesapeake City Council violated the equal protection clause when it denied their zoning application, but there were no facts showing how similarly situated applicants were treated differently, or that the alleged unequal treatment resulted from discriminatory animus, the claim was dismissed.

Background

On Sept. 1, 2021, plaintiffs SAS Associates 1 LLC and Military 1121 LLC filed a complaint against the City Council for the City of Chesapeake, alleging a violation of the Equal Protection Clause, a violation of Virginia Code § 15.2-2208.1 and entitlement to declaratory judgment. The suit arises out defendant’s denial of a zoning application. Now before the court is defendant’s motion to dismiss.

Equal Protection

To survive a motion to dismiss an equal protection claim, a plaintiff must plead sufficient facts to demonstrate plausibly that he was treated differently from others who were similarly situated and that the unequal treatment was the result of discriminatory animus. Plaintiffs fail to meet this burden.

First, while plaintiffs name other developments that defendant has approved, and thus treated differently, they fail to establish that they are similarly situated. The court recognizes significant differences between plaintiffs’ property and the developments named in the complaint. Plaintiffs have thus failed to allege sufficient facts demonstrating that they are similarly situated to the developments that defendant allegedly approved.

Second, even if these developments were similarly situated, plaintiffs’ claim would still fail because they have not pled sufficient facts to demonstrate that the alleged unequal treatment resulted from discriminatory animus. The challenges to the application evidence a substantive disagreement with the bases for defendant’s decision, not discriminatory intent.

Plaintiff argues that defendant “was swayed, instead, by residents whose own properties were admittedly not subject to these same controls, and which are located in the FEMA floodplain.” Yet, plaintiffs fail to allege or explain that any of the reasons defendant offered, or the fact that defendant voted in accordance with the opinion of the community, derive from or demonstrate a discriminatory intent.

In other words, although plaintiffs make the plain allegation that defendant intentionally discriminated against them in their complaint, they fail to connect any of defendant’s actions, comments or stated reasons to a discriminatory purpose. The excerpted transcript of the Chesapeake city council meeting that plaintiffs attach to the complaint only supports the court’s finding.

Virginia Code § 15.2-2208.1

Since the court dismisses plaintiffs’ federal law claims in Count One and Count Three, it lacks jurisdiction to consider plaintiffs’ state law claim in Count Two. Even if it did have jurisdiction, the court would nonetheless dismiss Count Two because plaintiffs failed to sufficiently allege that defendant took any unconstitutional action or relied on any unconstitutional basis when denying the 2018 application. Rather, plaintiffs’ allegations amount to a substantive disagreement with the bases for defendant’s decision.

Declaratory judgment

Because plaintiffs have failed to sufficiently state a claim that their constitutional or statutory rights have been violated, an actual controversy does not exist.

Defendant’s motion to dismiss granted.

SAS Military Associates 1 LLC v. City Council for the City of Chesapeake Virginia, Case No. 2:21-cv-491, May 25, 2022. EDVA at Norfolk (Jackson). VLW 022-3-229. 17 pp.