In Village of Willowbrook v. Olech, the property owner alleged "the Village intentionally demanded a 33-foot easement as a condition of connecting her property to the municipal water supply where the Village required only a 15-foot easement from other similarly situated property owners." The complaint further described the village's demand as "irrational and wholly arbitrary." According to the Seventh Circuit, the property owner could allege an equal protection violation by asserting the state's action was motivated solely by a "spiteful effort to 'get' him for reasons wholly unrelated to any legitimate state objective." On appeal, the Supreme Court agreed, holding that "[t]hese allegations, quite apart from the Village's subjective motivation, are sufficient to state a claim for relief under traditional equal protection analysis." Although it affirmed the Seventh Circuit's decision, the Court explicitly "[did] not reach the alternative theory of 'subjective ill will' relied on by [the lower] court."
This article considers whether Olech infers that unreasoned zoning decisions violate the Equal Protection Clause, and explores the meaning of "similarly situated." The authors further examine what type of evidence might be necessary to ensure that aesthetic regulations pass constitutional muster with respect to the Fourteenth Amendment's Equal Protection Clause.
Louis G. Tassinary, Dawn E. Jourdan & Russ Parsons, Equal Protection and Aesthetic Zoning: A Possible Crack and a Preemptive Repair, 42 Urb. Law. 375 (2010), available at http://scholarship.law.ufl.edu/facultypub/350