The Urban Lawyer

Neighbor Opposition to Zoning Change

by Munir Saadi

*This article revisits and updates topics originally explored in Harold A. Ellis, Neighborhood Opposition and the Permissible Purposes of Zoning, 7 J. Land Use & Envtl. L. 275 (1992).
**J.D. 2017, Washington University. The author thanks Professor Daniel R. Mandelker for his mentorship and for his guidance with respect to earlier versions of this article.

I. Introduction

NEIGHBOR OPPOSITION TO LAND USE CHANGE is too often a deciding factor in local decision- making. The concern and input of neighbors affected by a proposed land use is an integral component of the zoning process;1 however, local legislators agreeing to the demands of vocal opponents to land use change provides an opportunity for irrational decision-making that courts should reject. This article addresses the question of whether, and when, courts can reject denials of land use change because a decision-making body relied improperly on neighborhood opposition as the basis for its decision.

The problem of neighbor opposition improperly influencing land use decisions might arise in several situations where a local decision-making body has the discretion to reject a proposed use. For example, a board of adjustment or other decision-making body may refuse to grant a variance from the terms of a zoning ordinance where the ordinance creates unnecessary hardship or practical difficulty.2 Similarly, zoning enabling acts invariably grant local decision-making bodies the authority to grant special or conditional use permits according to standards provided in a zoning ordinance. A zoning ordinance will contain provisions enumerating which conditional uses are allowable in different zoning districts and will detail the standards for granting or rejecting those conditional uses.3 Courts presume classifications delineating conditional uses in the ordinance valid and uphold denials if “fairly debatable.”4 A landowner who is not able to get a variance or conditional use permit can seek to amend the zoning ordinance. The adoption or rejection of a zoning amendment by a local government is generally held a legislative act,5 and courts address refusals to rezone by presuming the decision was constitutional and upholding the refusal as long as its wisdom is fairly debatable.6 In each of these cases, there is the possibility that the decision-making body refuses an applicant a proposed land use primarily in response to neighborhood opposition.

Neighbor opposition also commonly arises where a developer seeks approval of a planned unit development.7 This is a development approved after the comprehensive review of project design and can include a variety of project types, including infill developments, housing developments, and mixed-use developments, such as master-planned communities.8 Changes in use and density required by these projects may often lead to opposition that leads to project defeat.9

Courts have both accepted and rejected neighborhood opposition as a factor in land use decision-making. The opinion of local residents opposing a zoning application can be an appropriate factor for a decision-making body when it reflects “logical and reasonable concerns.”10

Courts can also hold that generalized fears of neighboring property owners are not relevant to consideration of an application for a conditional use permit.11

Landowners can use a number of theories to challenge land use decisions that rely on neighborhood opposition. Reliance on neighborhood opposition can constitute arbitrary and capricious decision-making and thus deprive an applicant of substantive due process.12 Similarly, acceptance of neighborhood opposition can raise an equal protection objection. Although equal protection objections have always been possible, the Supreme Court in City of Cleburne v. Cleburne Living Center13 elevated this possibility when it held that reliance on neighborhood opposition violated equal protection where the city denied a special permit for a group home for the mentally retarded. Appearing to raise the level of judicial skepticism applied when addressing land use decisions tainted with neighborhood opposition, the Court declared that the “mere negative attitudes” or “fear” of neighboring residents might not constitute a basis for a land use decision.14

This article addresses how courts have traditionally reviewed challenges to land use decisions based on neighborhood opposition as well as Cleburne’s effect, if any, on how courts handle this problem. Part II is a survey of neighborhood opposition cases. It explains how courts traditionally address challenges to land use decisions influenced by neighborhood opposition by looking at whether the neighborhood opposition provided the sole basis for the decision, or whether the opposition was substantiated by legitimate concerns. Part III discusses the Supreme Court’s reasoning in Cleburne, and whether it makes sense to apply the Court’s searching standard of review to other neighborhood opposition cases. Part IV surveys post-Cleburne neighborhood opposition case law to assess what impact, if any, that Cleburne has had on whether courts will scrutinize a local government’s decision in the face of neighborhood opposition. This article concludes by advocating a widespread application of the Cleburne framework to neighborhood opposition cases.

II. Neighborhood Opposition Cases

A. Cases Accepting Neighborhood Opposition as a Factor in Land Use Decision-making

Courts usually endorse a local government’s attempts to preserve the character of a community and find input of local residents a proper consideration in land use decision- making. For example, they find preserving the character of a community a valid justification for large-lot zoning ordinances,15 as well as ordinances banning big box retail stores.16 They also uphold design review ordinances that describe the “character of the surrounding neighborhood” as a benchmark standard.17 Similarly, courts hold that local governments should not give hardship variances where they “alter the essential character of the locality,”18 nor should they grant conditional uses unless consistent with the character of the district.19 The input of local residents in each of these land use cases provides the local decision-making body with insight into a locality’s characteristics, and consideration of resident opinions is integral to these processes.

Some courts give local decision-making bodies broad leniency to rely on neighborhood opposition when making decisions. In City of Hattiesburg v. McArthur,20 the court upheld a city council’s refusal to rezone a single-family residential district to a high-density residential district.21 The plaintiffs argued that the council’s decision was arbitrary and capricious because it responded to neighborhood disapproval not supported by real evidence. The court rejected this argument, holding that the local opponents voiced legitimate concerns regarding increased traffic and crime. The court further held that “giving substantial weight to homeowners’ testimonies regarding opposition to a nearby zoning change is not error.”22 The court justified its position by analogizing residential zoning districts to protective covenants agreements intended to protect homeowners from incompatible uses.23

Courts uphold land use decisions influenced by neighborhood opposition where the neighbors’ opinions were logical. In City of Lowell v. M & N Mobile Home Park,24 the court upheld a planning commission’s decision not to rezone an area to allow a mobile home park. The court explained that neighborhood opposition is an appropriate factor to consider in zoning cases only “when it reflects logical and reasonable concerns.”25 The public’s concerns about increased traffic and other issues was “logical and reasonable, constituted a legitimate factor in the legislative decision-making and should not have been disregarded by a court.”26

Courts also consider neighborhood opposition if based on concrete information. In SuperAmerica Group v. City of Little Canada,27 the court upheld the city’s denial of a conditional use permit to operate a gas station and convenience store facility.28 The court held the decision was not arbitrary and capricious, holding that “a city may consider neighborhood opposition if based on concrete information.”29 Local residents opposing the conditional use permit referenced “existing, daily traffic problems,” instead of “vague concern[s] about future neighborhood problems,” and the court found that the city properly considered these “concrete, current observations.”30

Even when local residents attempt to influence a land use decision by voicing their unsubstantiated concerns, a court will still uphold the decision when the decision-making body discounts the neighborhood opposition and instead bases its decision on other sufficient evidence. In Cingular Wireless, LLC v. Thurston County,31 the court rejected the argument that the city improperly relied on neighborhood opposition in denying a special use permit to erect a cellphone tower. Although there was evidence of “unfounded pecuniary and political charges” against the proposed use, it upheld the city’s denial because the city hearing examiner expressly discounted these “unsubstantiated neighborhood fears” and instead relied on substantiated concerns about incompatibility with the surrounding area and adverse aesthetic impacts.32

B. Cases Rejecting Neighborhood Opposition as a Factor in Land Use Decision-making

Cases reject denials based entirely on neighbor opposition. In Marks v. City of Chesapeake,33 the Fourth Circuit held as unconstitutional the denial of a conditional use permit to operate a palmistry. The court affirmed a finding that the city council acted arbitrarily and capriciously in violation of substantive due process by denying the permit application “solely in an effort to placate those members of the public who expressed ‘religious’ objections to the plaintiff ’s proposed use of his property.”34

Even when a land use decision is based on an attempt to avoid a decline in property values,35 courts will invalidate it if the decline is the result of unsubstantiated fears of neighboring residents. In Sunderland Family Treatment Services v. City of Pasco,36 the Supreme Court of Washington reversed a city’s denial of a special use permit for a group care facility for abused or neglected children.37 The court rejected the council’s finding that adjacent properties’ values would be impaired because of safety concerns associated with the group home, explaining that “there is an important distinction between well founded fears and those based on inaccurate stereotypes and popular prejudices. Courts have long held the latter cannot justify zoning restrictions.”38 The court held there was no evidence that the group home would affect the safety of residents in the area and that “[a]ny reduction in property values would be based on unsubstantiated fears with regard to teenagers from troubled families.”39 The court held this was neither “competent nor substantial” enough evidence to support the city’s decision.40

These cases indicate that, generally, neighborhood opposition is appropriate in land use decision-making if substantiated and not the sole basis for the decision, and courts will strike down an ordinance if supported only by a generalized animus of neighboring property owners. Although apparently providing a consistent framework, these cases differ in their treatment of how a court should review a land use decision to determine if it is impermissibly founded on unsubstantiated neighbor opposition. This problem is complicated because, in practice, a local government can easily try to shelter a decision based solely on neighborhood opposition from judicial review by indicating on the record that it implicated other, legitimate legislative goals. The question then arises of whether and to what extent a court can examine the motives of a municipality in cases where the municipality seems to be making a land use decision solely in response to neighborhood opposition. The Supreme Court offered an answer to this question in City of Cleburne v. Cleburne Living Center.41

III. Neighborhood Opposition under Cleburne

Judicial reaction to neighborhood opposition changed substantially when the Supreme Court decided City of Cleburne v Cleburne Living Center42 in 1985. Cleburne involved neighbor opposition to a special use permit application to operate a group home for the mentally retarded.43 Zoning issues became an important issue for group homes with the widespread deinstitutionalization movement of mentally disabled and mentally ill persons that began in the 1960s and 1970s,44 and attempts to move these individuals to private residences. The deinstitutionalization movement met fierce resistance from neighborhood residents and local governments, and a widespread opposition to group homes developed.45 Although challenges to this opposition now occur principally under the 1988 amendments to the federal Fair Housing Act,46 supporters of group homes initially sued under the Equal Protection Clause of the Fourteenth Amendment. These constitutional challenges provide guidance on how courts should apply the Equal Protection Clause in cases of neighborhood opposition to land uses.

A. Equal Protection Challenges Generally

Land use law disputes commonly feature challenges to a zoning ordinance because it violates the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause requires that “all persons similarly circumstanced shall be treated alike.”47 This constitutional guarantee is often invoked in land use law because “the essence of many controls, particularly Euclidean zoning, is to classify land and people”48 A zoning ordinance is often challenged as violating equal protection by either unconstitutionally discriminating between different classes on its face, or because it is unconstitutionally applied by a municipality.49

Courts review equal protection claims under different standards depending on the type of group or interest affected. When legislation discriminates between individuals based on “suspect classifications” such as race, or targets a “fundamental right” such as freedom of speech, the courts apply a critical “strict scrutiny” standard of review.50 However, when legislation implicates neither a suspect classification nor a fundamental right, it is entitled to a strong presumption of validity and will not violate the Equal Protection Clause if there is a rational basis or a relationship between the disparity of treatment and a legitimate governmental purpose.51 Under this highly deferential “rational basis” test, the Supreme Court has gone so far as to recharacterize the purpose of a statute to make it acceptable and provide a justification that avoids under-inclusion and over-inclusion arguments.52 As a result, courts usually uphold statutes against an equal protection objection when assessed under the rational basis test.

An intermediate standard of judicial review exists for classifications that are “quasi- suspect.” This intermediate standard requires only that a legislative classification bear “a substantial rather than a necessary relationship to an important rather than a compelling governmental interest.”53 Quasi-suspect classifications include those based on gender54 or illegitimacy,55 while rational basis review generally applies to social and economic legislation.56 Courts typically review and uphold classifications found in a zoning ordinance under the rational basis test.57

In some cases where a court has ostensibly analyzed an equal protection challenge under the traditional rational basis test, it in fact applied a more scrutinizing standard of review. Commentators call this heightened rational basis review “rational basis with a bite.”58 In these cases, courts scrutinize the asserted purposes of a statute and strike it down if it fails to serve a legitimate governmental interest, thereby preventing a local government from imposing burdens on groups solely because they are politically unpopular.59 Furthermore, in rational basis with bite cases the court does not invent or provide rationales for a law, but “should ensure that the law is not a pretextual exercise of the government’s power.”60

Courts apply this heightened rational basis review standard in a variety of cases. Rational basis with bite is “triggered” when a challenged statute targets a group or classification that approaches without reaching quasi-suspect status, and implicates an important or significant — if not fundamental — right.61 The rational basis with bite analysis has appeared in non-economic cases involving laws directed against homosexual persons62 and illegal alien children.63 The Supreme Court also applied rational basis with bite to strike down seemingly economic regulations by distinguishing legislation intended to serve legitimate governmental purposes from “pretextual exercises of political power.”64

B. Equal Protection Analysis under Cleburne

A leading application of rational basis with bite is City of Cleburne v. Cleburne Living Center,65 in which the Supreme Court considered an equal protection challenge to denial of a special permit for a group home. In Cleburne, the plaintiff intended to develop a group home and applied for a special use permit after being informed by the city that its proposed use was subject to local zoning regulations requiring a special use permit for the construction of “hospitals for the &hellilp; feeble-minded.”66 After holding a public hearing, the city council voted to deny the special use permit.67 Following this denial, the plaintiff-applicants filed suit to challenge the ordinance as a violation of the Equal Protection Clause of the Fourteenth Amendment.68 The Supreme Court found an equal protection violation.69

The Supreme Court’s approach in Cleburne is a telling demonstration of how rational basis with bite relates to neighborhood opposition to zoning change. The Court first rejected intermediate scrutiny review. It held that mental retardation is not a quasi-suspect classification meriting intermediate scrutiny because mentally retarded individuals have “distinguishing characteristics relevant to interests the State has the authority to implement.”70 The Court should be “reluctant” to “closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued.”71 It further noted that the multitudinous examples of state and federal legislation directed towards assisting the mentally retarded “indicates that governmental consideration of those differences in the vast majority of situations is not only legitimate but also desirable.”72 These pieces of legislation also “negate any claim that the mentally retarded are politically powerless in the sense that they have no ability to attract the attention of the lawmakers.”73 Lastly, the Court explained that it was not willing to classify the mentally retarded as quasi-suspect because it would, as a result, be difficult to distinguish other groups traditionally held to be of a quasi-suspect class.74

Even though the Court refused to apply intermediate scrutiny, it nonetheless analyzed the challenged statute under a higher level of scrutiny than that typically associated with traditional rational basis review.75 It described its version of rational basis review as one which “affords [the] government the latitude necessary both to pursue policies designed to assist the retarded in realizing their full potential, and to freely and efficiently engage in activities that burden the retarded in what is essentially an incidental manner.”76 However, a local government cannot “rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.”77 Nor can a local government pursue as a governmental objective “a bare … desire to harm a politically unpopular group.”78 In defining this standard of review, the Court departed from previous explanations of rational basis review by stating that it would closely scrutinize the challenged statute to ensure that it does not rely on an overly “attenuated” classification and not written with the sole desire of harming an unpopular group.

The Court applied this standard of review to hold that the challenged statute violated equal protection. Noting that the city’s ordinance required a special use permit for the plaintiff-applicant in a district that allowed other multiple-dwelling facilities79 as permitted uses, the Court held that there was no rational basis to believe that the group home at issue would pose a special threat to the city’s legitimate interests.80

The Court rejected the city’s argument that it had justifiably based its decision on neighborhood opposition. It held that the city council was concerned with the “negative attitude” of nearby property owners in making its decision to deny the special use permit.81 The Court rejected an argument that this was a permissible concern for the council, holding that “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases” for discriminating against a group home for the mentally retarded.82 The Court also found unavailing the city’s post hoc rationalizations that the group home at issue should be treated differently because of its location and density, explaining that the city failed to show why these factors affected the mentally retarded differently from other permitted multiple-dwelling uses.83

C. Cleburne Analyzed

Several elements of the Court’s reasoning in Cleburne mark its analysis as a heightened rational basis review standard as distinguished from traditional rational basis review. It did not attempt to save the ordinance by either recharacterizing its purpose or by supplying its own justification for treating a group home for the mentally retarded differently from other multiple-dwelling facilities. Instead, it closely scrutinized the city’s proffered justifications and found them insufficient. The Court thus struck down an ordinance that “surely would be valid under the traditional rational-basis test applicable to economic and commercial regulation.”84

The question of why the Court chose to employ rational basis with bite in this case is an interesting one. Surely, the mentally disabled are a group “approaching quasi-suspect status,” and the ordinance targeted the significant right of whether a person can freely choose where he or she lives.85 However, the Court explained extensively that it did not consider the mentally retarded to be a politically-disadvantaged, quasi-suspect group and was not deciding the case by applying intermediate scrutiny.86 Instead, the Court’s decision in Cleburne could be read to suggest that rational basis with bite is appropriate where there is evidence that a legislature has made a decision based on an inappropriate governmental purpose, like the “mere negative attitudes, or fear” of nearby property owners found in neighborhood opposition cases.87 This holding extends beyond protecting only vulnerable group homes to neighborhood opposition zoning cases generally.

Applying this heightened standard of rational basis review in neighborhood opposition zoning cases makes sense for a number of reasons. A local land use decision that coincides with the presence of vocal, unsubstantiated neighborhood opposition likely evidences a defect in the zoning process in which the decision-making body did not act in furtherance of a legitimate governmental purpose but instead arbitrarily yielded to the wishes of constituents.88 Cleburne appears to acknowledge this risk, and in response suggests that the presence of neighborhood opposition merits application of the less deferential rational basis with bite. Thus, courts can apply heightened rational basis review to reveal and overturn land use decisions impermissibly made in response to the unsubstantiated negative attitude and fears of neighborhood opponents.89

IV. How Cleburne Has Influenced Neighborhood Opposition Case Law

The response to Cleburne is varied. Some courts are willing to apply rational basis with bite to neighborhood opposition cases while others insist on reviewing zoning legislation with traditional rational basis review deference. The cases that follow Cleburne have mostly extended it to challenges of legislation that target vulnerable or politically unpopular groups; developers asserting economic interests have failed to convince courts to apply rational basis with bite to their equal protection challenges.90 A court is more likely to apply Cleburne’s heightened rational basis review when neighbor opposition to a particular group influences a decision than where the opposition targets an economic land use.91

A. Neighborhood Opposition Cases Following Cleburne

Courts have extended Cleburne’s heightened rational basis review standard to similar restrictive ordinances, such as ordinances restricting community treatment centers intended to facilitate the reintegration of federal offenders into society. In Bannum v. City of Louisville,92 for example, the Sixth Circuit applied what it described as Cleburne’s “exacting rational relationship standard”93 and held that requiring a special use permit for the proposed community treatment center violated equal protection.94 The court first found that the city had not shown that the occupants of the community treatment center would be more likely to commit crimes, which was the city’s “one major justification” for the differential treatment.95 The court then held that this lack of evidence for the city’s contention that crime would increase, in addition to “evidence in the record of substantial community opposition” to the proposed community treatment center, indicated that the purpose behind treating the proposed use differently was to satisfy neighboring property owners.96 As a result, the challenged regulation did not satisfy the “exacting rational relationship standard found in Cleburne” and deprived the plaintiff-applications of equal protection.97

Similarly, courts use the rational basis with bite standard applied in Cleburne to strike down ordinances restricting other vulnerable uses, such as substance abuse rehabilitation centers operated by religious institutions. In Open Homes Fellowship v. Orange County,98 the court determined that an ordinance requiring a drug and alcohol rehabilitation center to apply for a special permit violates equal protection. After citing Cleburne, the court rejected in turn the county’s arguments that its ordinance justifiably protected the county’s interest in safety, traffic and trash control, intensity of use, and general prevention of disruption to the neighborhood.99 In rejecting the county’s vague assertions of safety concerns, the court found that “the County appeared to base its safety concerns on the unsubstantiated negative attitudes of community opponents [… and] improperly deferred to the objections of a fraction of the body politic and illegally gave these biases effect.”100

B. The Supreme Court’s Limitation of Cleburne and How it Affects Zoning Cases

The Supreme Court placed limits on Cleburne in Board of Trustees v. Garrett, a 2001 case concerning discrimination against disabled State employees.101 In Garrett, the Court found that plaintiffs, employees of the State of Alabama, were not entitled to recover damages for discrimination under the Americans with Disabilities Act.102 In dictum, the Court limited Cleburne by stating that it does not “stand[] for the broad proposition that state decision-making reflecting “negative attitudes” or “fear” necessarily runs afoul of the Fourteenth Amendment.”103 Instead, according to the Court, Cleburne merely repeated the “unremarkable and widely acknowledged tenet” that under rational basis review state action must rationally further the governmental purpose.104 The Court further explained that though negative attitudes of local opponents “may often accompany irrational (and therefore unconstitutional) discrimination, their presence alone does not a constitutional violation make.”105

Garrett has limited the application of Cleburne in land use cases. For example, in City of Los Angeles v. County of Kern,106 the court held that an ordinance banning land application of biosolids in certain areas of the county did not violate equal protection. The ordinance was a response to a large public initiative campaign directed to prohibit biosolid land application in the county.107 The court rejected arguments that the county’s stated purposes were pretextual, and cited Garrett as support for its holding that “though animus may have been a significant element of the campaign [to pass the challenged ordinance], that fact alone does not establish a violation of the Equal Protection Clause.”108

Other courts refused to extend Cleburne’s heightened rational basis review to neighborhood opposition cases, effectively following Garrett’s dictum by reading Cleburne in a similarly narrow way.109 In Bannum, Inc. v. City of Fort Lauderdale,110 the Eleventh Circuit rejected an argument that the city violated equal protection by denying a special use permit for a community treatment center for former prisoners. The plaintiff-applicants in that case argued that the ordinance requiring a special use permit for the community treatment was unconstitutionally applied because the city’s decision was motivated by “negative attitudes and irrational fears” about the center’s participants.111 The court rejected this argument and found that the city’s decision did not constitute an equal protection violation when reviewed under rational basis scrutiny.112 Moreover, the Court expressly found that Cleburne did not “undermine” its holding, because “community input was not the sole reason for the City’s actions,” notwithstanding evidence that the community’s negative attitudes may have influenced the city’s decision.113

Other courts have refused to apply rational basis with bite even when irrational fear and prejudice motivated an ordinance. In DeSisto College v. Town of Howey-in-the-Hills,114 the court found, at the summary judgment stage, that an ordinance restricting a college from serving learning-disabled students in residential districts did not violate equal protection. The town adopted ordinances establishing that the proposed college was not a permitted use in residential areas after a number of the town’s citizens and government officials “made derogatory statements at public gatherings, public meetings, private meetings, and in newspaper interviews concerning DeSisto College and the students at the College.”115 The court found these allegations of community animus irrelevant to its equal protection analysis, because “the motivations of the lawmakers,” including whether they were acting in response to neighbor opposition, is “not material” to the question of whether legislation is supported by a rational basis.116 It upheld the ordinance because preservation of the residential character of the town provided the defendants with the required “one legitimate governmental purpose for their legislation.”117 In making its finding, the court expressly rejected the plaintiff ’s argument that under Cleburne it must apply a more searching review than the typical rational basis test, instead “disagree[ing] with plaintiffs’ reading of Cleburne” and holding that Cleburne did not expressly create a “new ‘enhanced rational basis’ review.”118

A court also applied traditional rational basis review instead of rational basis with bite when a city restricted the religious use of land because of neighborhood opposition. A zoning ordinance requiring a conditional use permit to build a church in certain residential districts did not violate equal protection in Christian Gospel Church, Inc. v. City of San Francisco.119 The Ninth Circuit applied rational basis review and, in response to the plaintiff-applicant’s argument that neighborhood opposition was the true reason it did not get a conditional use permit, the court held that “neighborhood opposition to the granting of a conditional use permit is not unlawful and should be considered by the Planning Commission.”120 The Court thus held that the ordinance did not violate equal protection either as-applied to the particular church in question or facially by requiring conditional use permits for churches.121

Among the land use cases that have refused to apply Cleburne, some seem to suggest that Cleburne’s rational basis with bite might have been appropriate had the plaintiff provided evidence of neighborhood opposition. These cases include equal protection challenges to ordinances targeting groups and social interests,122 as well as challenges to economic regulations.123

C. Comparing Cleburne and the Garrett Dictum

Arguably, the Court’s conclusion in Garrett could be correct and still not diminish the impact of Cleburne on neighborhood opposition cases. Even if the presence of negative attitudes of neighborhood opponents “does not a constitutional violation make,”124 it is still true that merely or solely relying on unsubstantiated neighborhood fears is arbitrary and necessarily violative of equal protection. The significance of Cleburne is how it determined that the city was acting arbitrarily; the Court did not simply defer to the legislature but instead scrutinized its asserted justifications to find that “requiring the permit in this case appears to [ …] rest on an irrational prejudice against the mentally retarded.”125 Even in the face of Garrett’s limitation, one could still read Cleburne as a direction for courts to apply rational basis with bite when analyzing land use decisions tainted by neighborhood opposition.126 To the extent that the dictum in Garrett stands for the proposition that Cleburne does not permit a more searching rational basis review in neighborhood opposition cases, the dictum should not be followed. Cleburne’s heightened standard of rational basis review provides a means by which courts can ensure that land use decisions are not merely reflections of local residents’ negative attitudes and unsubstantiated fears.127 Denying courts this mechanism of heightened judicial scrutiny leaves groups and interests that fall short of being entitled to intermediate scrutiny exposed to the irrational attitudes of neighborhood opponents.

V. Conclusion

In some circumstances, neighborhood opposition reflects the substantiated concerns of local property owners and offers a valuable insight into a community’s land use character. A municipality may properly consider these opinions in deciding whether to permit zoning or other land use changes. Neighborhood opposition also creates the risk for irrational and unconstitutional land use decision-making. Challenging a zoning change as a violation of the Equal Protection Clause of the Fourteenth Amendment is a valuable means to ensure that local governments do not base their land use decisions solely on neighborhood opposition. Courts uphold land use decisions against equal protection challenges despite neighborhood opposition when the opposition was not the sole factor and neighbors voiced legitimate concerns. These decisions leave open the question of how a court is supposed to decide when a local government is unconstitutionally basing its land use decision on neighborhood opposition in the face of claims that the municipality based its decision on other permissible governmental purposes.

The high level of deference granted to legislatures under the traditional rational basis standard does not give courts the opportunity necessary to inquire adequately into a local government’s reasons for a zoning decision. Cleburne’s more searching rational basis standard of review provides a mechanism by which courts can properly analyze neighborhood opposition cases to determine whether they violate equal protection. Neighborhood opposition cases following Cleburne’s approach allow searching analysis of evidence to determine when a land use decision is in fact an impermissible response to neighborhood opposition. This increased judicial skepticism ensures that local governments irrationally basing their decisions solely on the desires of an overly vocal segment of their constituents will get an effective judicial review.

  1. The guiding principles of land use law come substantially from nuisance law and courts’ attempts to preserve established residential areas by restricting the location of invading, non-compatible uses. DANIEL R. MANDELKER&MICHAEL ALLEN WOLFE, LAND USE LAW § 1.04 (Matthew Bender, LexisNexis 6th ed., 2016) [hereinafter LAND USE LAW].
  2. See Puritan-Greenfield Imp. Ass’n v. Leo, 153 N.W.2d 162, 171 (Mich. Ct. App. 1967).
  3. LAND USE LAW, supra note 1, at § 6.50.
  4. Bd. of Sup’rs of Fairfax Cty. v. Southland Corp., 297 S.E.2d 718 (Va. 1982).
  5. LAND USE LAW, supra note 1, at § 6.26. Courts in a minority of states treat the decision of whether to rezone a particular piece of property as “quasi-judicial.” See Fasano v. Bd. of Cty. Comm’rs of Washington Cty. 507 P.2d 23, 26 (Or. 1973); Board of County Comm’rs of Brevard Cty. v. Snyder, 627 So. 2d 469, 474 (Fla. 1993); New Castle Cty. Council v. BC Dev. Assoc.’s, 567 A.2d 1271, 1275 (Del. 1989). Under this view, courts will review the decision under a substantial evidence standard, and, in some cases, courts will reverse the presumption of constitutionality. Todd W. Prall, Dysfunctional Distinctions in Land Use: The Failure of Legislative / Adjudicative Distinctions in Utah and the Case for A Uniform Standard of Review, 2004 B.Y.U. L. REV. 1049, 1059 (2004); Daniel R. Mandelker, Spot Zoning: New Ideas for an Old Problem, 48 URB. LAW. 737, 758–59 (2016) (explaining that “[j]udicial skepticism requires reversal,” even though “[a] clear majority of decisions applies the traditional presumption in favor of the constitutionality of the rezoning”).
  6. LAND USE LAW, supra note 1, at §6.25. This presumption of constitutionality finds its nascence in the Supreme Court’s decision in Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 396 (1926). In Euclid, the Court upheld an ordinance prohibiting multi- family housing in certain residential districts and explained that a court should uphold a land use ordinance where its validity is “fairly debatable.”
    In the land use context, the “presumption” of constitutionality refers to the standards of review that courts will apply when determining the legitimacy of a landuse decision. When a court grants a legislative body the presumption of constitutionality, it is not subject to the usual evidentiary burdens but instead must offer only a plausible rationale for its decision. Daniel R. Mandelker & A. Dan Tarlock, The Shifting the Presumption of Constitutionality in Land-Use Law, 24 URB. LAW. 1, 8 (1992) [hereinafter Shifting the Presumption].
  7. Interview with Daniel R. Mandelker (March 31, 2017).
  9. See Johnson v. City of Mount Vernon, 679 P.2d 405, 406 (Wash. Ct. App. 1984).
  10. City of Lowell v. M & N Mobile Home Park, Inc., 916 S.W.2d 95, 101 (Ark. 1996) (citing Nelson v. City of Selma, 881 F.2d 836, 840 (9th Cir. 1989)).
  11. Washington State Dep’t of Corr. v. City of Kennewick, 937 P.2d 1119, 1127 (Wash. Ct. App. 1997).
  12. Marks v. City of Chesapeake, 883 F.2d 308 (4th Cir. 1989).
  13. 473 U.S. 432 (1985).
  14. Id. at 448.
  15. See Flora Realty & Inv. Co. v. City of Ladue, 246 S.W.2d 771, 775 (Mo. 1952); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 934 (Tex. 1998).
  16. See Loreto Dev. Co. v. Vill. of Chardon, 695 N.E.2d 1151 (Ohio Ct. App. 1996).
  17. State ex rel. Stoyanoff v. Berkeley, 458 S.W.2d 305, 312 (Mo. 1970).
  18. Otto v. Steinhilber, 24 N.E.2d 851, 853 (N.Y. 1939).
  19. See Crooked Creek Conservation & Gun Club, Inc. v. Hamilton Cty. N. Bd. of Zoning Appeals, 677 N.E.2d 544 (Ind. Ct. App. 1997).
  20. 24 So. 3d 367 (Miss. Ct. App. 2009).
  21. Id. at 372. After a public hearing in which neighbors of the subject property voiced their opposition and presented a petition with nearly 300 signature opposing the zoning change, the city council voted to deny the application to rezone notwithstanding a previous recommendation by the city’s planning commission to approve it. Id. at 369-70.
  22. Id. at 372. However, a petitioner seeking a rezoning in Mississippi must show that either there was a mistake in the original zoning or the character of the neighborhood has changed and a “public need” exists for the rezoning. Mayor & Comm’rs of City of Jackson v. Wheatley Place, Inc., 468 So. 2d 81, 83 (Miss. 1985). This requirement is unique, and the precedential value of City of Hattiesburg in other jurisdictions is questionable.
  23. City of Hattiesburg, 24 So.3d at 372-73 (quoting Mayor and Board of Aldermen v. Estate of Lewis, 963 So.2d 1210, 1216 (Miss. Ct. App. 2007)).
  24. 916 S.W.2d 95 (Ark. 1996).
  25. Id. at 344.
  26. Id. at 345.
  27. 539 N.W.2d 264, 268 (Minn. Ct. App. 1995).
  28. Id.
  29. Id. at 267.
  30. Id. at 268. Cf. Yang v. Cty. of Carver, 660 N.W.2d 828, 833–34 (Minn. Ct. App. 2003) (reversing a denial for a conditional use permit to operate a slaughterhouse where the board of commissioners relied on “neighbors’ anecdotal comments” regarding traffic); Trisko v. City of Waite Park, 566 N.W.2d 349, 356-57 (Minn. Ct. App. 1997) (finding the city acted arbitrarily in rejecting a conditional use permit to establish granite quarry by relying on unscientific observations of neighbors regarding traffic and health problems).
  31. 129 P.3d 300, 314 (2006).
  32. Id. at 314-15.
  33. 883 F.2d 308, 309 (4th Cir. 1989).
  34. Id. at 312. Minnesota cases have similarly held that neighborhood opposition by itself cannot provide a sufficient basis for a land use decision. See Northwestern College v. City of Arden Hills, 281 N.W.2d 865, 869 (Minn. 1979) (“Although neighborhood sentiment may be taken into consideration in any zoning decision, it may not constitute the sole basis for granting or denying a given permit”); Bartheld v. Cty. of Koochiching, 716 N.W.2d 406, 412 (Minn. Ct. App. 2006) (“[N]eighborhood opposition alone is not a sufficient basis for denying a project”); Hurrle v. Cty. of Sherburne by Bd. of Comm’rs, 594 N.W.2d 246, 251 (Minn. Ct. App. 1999) (“Although a governmental entity may consider neighborhood opposition to zoning issues[,] by itself this opposition does not provide a legally sufficient reason or substantial evidentiary support”) (internal citations omitted); Cf. South Anchorage Concerned Coalition, Inc. v. Coffey, 862 P.2d 168, 175 (Alaska 1993) (“[A] planning board may always take evidence and testimony from community members into account in making its permitting decisions, but … it may not rely on neighborhood opposition alone as a reason to deny a permit”).
  35. Courts generally consider avoiding a decline a property values to be a permissible basis for a land use decision. See supra, Part II Section A.
  36. 903 P.2d 986, 988 (Wash. 1995).
  37. Id. at 989. The city council denied the applicant’s special use permit after neighbors of the proposed group home circulated a petition opposing the permit and voiced their opposition before the planning commission and council.
  38. Id. at 993 (internal citations omitted); See also Washington State Dep’t of Corr. v. City of Kennewick, 937 P.2d 1119, 1126 (Wash. Ct. App. 1997) (“Washington cases that have considered the relevance of community fears to zoning decisions have required that the fears be substantiated before the zoning authority may use them as a basis for its decision”).
  39. Id.
  40. Id. at 994. The court reviewed the denial by writ of certiorari and accordingly reviewed issues of fact under a “substantial evidence” standard. Id. at 990; Wash. Rev. Code Ann. § 7.16.120(5) (West); However, the Court of Appeals of Washington has applied Washington precedent to find a city council’s decision based on neighborhood opposition to be “arbitrary and capricious.” Maranatha Min., Inc. v. Pierce Cty., 801 P.2d 985, 989 (Wash. Ct. App. 1990). In Maranatha, the city council denied an unclassified use permit to operate a surface gravel mine and asphalt plant, finding that the only evidence supporting the council’s decision were the “generalized complaints from displeased citizens,” which could not be a basis of permit denial. Id. at 991. The court then described the council’s denial as “a textbook example of arbitrary and capricious action: without consideration and in disregard of the facts.” Id.
  41. See 473 U.S. at 450.
  42. Id.; see also Daniel R. Mandelker, Group Homes: The Supreme Court Revives the Equal Protection Clause in Land Use Cases, 1986 INST. ON PLAN. ZONING & EMINENT DOMAIN, Ch. 3.
  43. See 473 U.S. at 432.
  44. See generally Laura C. Bornstein, Contextualizing Cleburne, 41 GOLDEN GATE U. L. REV. 91, 100-101 (2010) [hereinafter Contextualizing Cleburne]. The often horrendous conditions in which mentally retarded persons lived was exposed in these decades through a number class action lawsuits and pressure from disability rights groups, resulting in approximately two thirds of the nation’s institutionalized mentally ill and retarded patients being released in the community during the 1970s. Id. Much of the deinstitutionalization movement responded to depictions of institutional settings in popular culture. See KEN KESEY, ONE FLEW OVER THE CUCKOO’S NEST (Viking Press and Signet Books 1977) (1962) (play depicting the mistreatment of institutionalized mentally ill and disabled persons).
  45. See Contextualizing Cleburne, supra note 44, at 102. See generally, Brian J. Connolly & Dwight H. Merriam, Planning and Zoning for Group Homes: Local Government Obligations and Liability Under the Fair Housing Amendments Act, 47 URB. LAW. 225 (2015).
  46. 42 U.S.C. §§ 3601 et seq.; see also Dr. Gertrudde A. Barber Ctr., Inc. v. Peters Twp., 273 F. Supp. 2d 643, 644 (W.D. Pa. 2003).
  47. See Plyler v. Doe, 457 U.S. 202, 216 (1982).
  49. See LAND USE LAW, supra note 1, at § 2.44. An equal protection claim challenging the classifications among land uses found in the text of a zoning ordinance is a “facial” attack; an attack challenging the administration of a zoning ordinance is an attack that is “as-applied.” Id.
  50. See Miller v. Johnson, 515 U.S. 900, 903 (1995). The “strict scrutiny” test consists of two prongs: the State or local government must establish that it has a compelling interest that justifies the law and that it narrowly tailored the law or ordinance such that there are no less restrictive means available to effect the desired end. Id. at 920.
  51. See Heller v. Doe, 509 U.S. 312, 319–20 (1993).
  52. See Gayle Lynn Pettinga, Rational Basis with Bite: Intermediate Scrutiny by Any Other Name, 62 IND. L.J. 779, 784 (1987) [hereinafter Rational Basis with Bite] (citing McGowan v. Maryland, 366 U.S. 420, 425-26 (1961) and Railway Express Agency v. New York, 336 U.S. 106 (1949)).
  53. LAND USE LAW, supra note 1, at § 2.45.
  54. See United States v. Virginia, 518 U.S. 515, 532-33 (1996).
  55. See Trimble v. Gordon, 430 U.S. 762, 767 (1977).
  56. See United States Railroad Retirement Board v. Fritz, 449 U.S. 166 (1980); New Orleans v. Dukes 427 U.S. 297, 303 (1976).
  57. See, e.g., Vill. of Belle Terre v. Boraas, 416 U.S. 1 (1974) (applying rational basis review to an ordinance restricting land use to one-family dwellings). Courts have been willing to apply a more stringent standard of review in a number of land use contexts. Racially discriminatory classifications in zoning merit application of strict scrutiny review. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (U.S. 1977). Moreover, the Supreme Court has applied a multi-factor test under the free speech clause requiring that a regulation restricting the use of signs directly advance a substantial government interest. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 564 (1980). Similarly, state courts have reversed the presumption of constitutionality in exclusionary zoning cases by requiring a local government to make affordable housing realistically available unless it “can sustain the heavy burden of demonstrating peculiar circumstances which dictate that it should not be required so to do.” S. Burlington Cty. N.A.A.C.P. v. Mount Laurel Twp., 336 A.2d 713, 724–25 (N.J. 1975).
  58. Rational Basis with Bite, supra note 52; Emma Freeman, Giving Casey Its Bite Back: The Role of Rational Basis Review in Undue Burden Analysis, 48HARV. C.R.-C.L. L. REV. 279, 323 (2013) [hereinafter Giving Casey Its Bite Back] (explaining that the phrase seemingly originates from Victor Rosenblum).
  59. See Timothy Sandefur, Equality of Opportunity in the Regulatory Age: Why Yesterday’s Rationality Review Isn’t Enough, 24 N. ILL. U. L. REV. 457, 475–76 (2004) [hereinafter Equality of Opportunity in the Regulatory Age].
  60. Id. at 477.
  61. See Giving Casey Its Bite Back, supra note 58, at 302; Rational Basis with Bite, supra note 52, at 801.
  62. E.g., Romer v. Evans, 517 U.S. 620, 635–36 (1996) (invalidating under the Equal Protection Clause an amendment to a State constitution prohibiting governmental action designed to protect homosexuals from discrimination).
  63. E.g., Plyler v. Doe, 457 U.S. 202, 230 (1982) (invalidating a state statute excluding illegal immigrant children from public schools).
  64. Equality of Opportunity in the Regulatory Age, supra note 59, at 477; see Metro. Life Ins. Co. v. Ward, 470 U.S. 869 (1985) (invalidating an Alabama statute that taxed out-of-state insurance companies more heavily than in-state insurers); Hooper v. Bernalillo County Assessor, 472 U.S. 612 (1985) (invalidating a statute providing a tax exemption to certain New Mexico residents); Williams v. Vermont, 42 U.S. 14 (1985) (invalidating a statute giving Vermont residents a credit against an automobile use tax for taxes paid to other states when an automobile was purchased out-of-state).
  65. 473 U.S. at 435.
  66. Id. at 436.
  67. Id. at 437.
  68. Id.
  69. Id. at 450.
  70. Id. at 441-42.
  71. Id.
  72. Id. at 443-44.
  73. Id. at 445.
  74. Id. at 445-46.
  75. Id. at 446.
  76. Id.
  77. Id.
  78. Id. at 446-47 (quoting United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 534 (1973)).
  79. Like dormitories, boarding houses, and hospitals. Id. at 447-48.
  80. Id.
  81. Id. at 448.
  82. Id. The Court went on to explain that “the electorate as a whole, whether by referendum or otherwise, could not order city action violative of the Equal Protection Clause [.]” Id. Ellis describes this careful judicial examination of “process and purpose” in neighborhood opposition cases as the “Cleburne paradigm.” Harold A. Ellis, Neighborhood Opposition and the Permissible Purposes of Zoning, 7 J. LAND USE & ENVTL. L. 275, 281 (1992).
  83. 473 U.S. at 449-50.
  84. Id. at 456 (Marshall, J., concurring in part, dissenting in part).
  85. See Giving Casey its Bite Back, supra note 58, at 302. In his dissent in Civil Liberties for Urban Believers, 342 F.3d 752, 768 (7th Cir. 2003) (Posner, J., dissenting), Judge Posner says Cleburne evokes a “sliding scale” approach to equal protection where “discrimination against sensitive uses is to be given more careful, realistic, skeptical scrutiny by the courts than discrimination against purely commercial activities.” Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 769 (7th Cir. 2003) (Posner, J., dissenting). In cases like Cleburne that involve a “category of sensitive uses or activities,” courts are to be “more alert for unjustifiable discrimination.” 342 F.3d at 768.
  86. See supra notes 61-64. For a criticism of the Court’s decision not to apply intermediate scrutiny, see generally Contextualizing Cleburne, supra note 44. Contrarily, the decision to consider mental retardation as not being a quasi-suspect classification has been praised as providing lower courts the discretion to searchingly review legislation targeting these individuals under rational basis with bite review while at the same time preserving most of the preferential treatment afforded to the mentally retarded. James T. Hogan, Community Housing Rights for the Mentally Retarded, 1987 DET. C.L. REV. 869, 891-92 (1987) [hereinafter Community Housing Rights].
  87. See supra note 65, at 448. This interpretation of the Court’s decision is consistent with Court’s statement that determining “[h]ow [the mentally retarded are] to be treated under the law is a difficult and often a technical matter, very much a task for legislators guided by qualified professionals[.]” 473 U.S. at 442-43. The Court was willing to refrain from applying a heightened intermediate or strict scrutiny standard of review to the statute so that the legislature could make policy choices “guided by professionals.” 473 U.S. at 443. The Court left itself room, however, to scrutinize under rational basis with bite the legitimacy of legislative decisions not guided by professionals but by the prejudices of neighborhood opponents. Id.
  88. See Shifting the Presumption, supra note 6, at 16. Neighborhood opposition groups dictating land use decisions are an example of the “capture” of local government. As Professors Mandelker and Tarlock explain, the argument that local governments’ deference to neighborhood opponents merely represents a majority rule system is inapposite, because the danger is that “[l]and uses that seek to enter neighborhoods and that provoke opposition, such as group homes, are excluded from effective participation in the political process.” Id. at 38. Only the voice of the neighborhood opponents determines the outcome. Id. Seattle has made changes to push back against the capture of local government by neighborhood groups. Erica C. Barnett, How Seattle Is Dismantling a NIMBY Power Structure, NEXT CITY (Apr. 3, 2017),
  89. See Community Housing Rights, supra note 86, at 891 (explaining that, by applying a “new rational basis test,” the “majority opinion [in Cleburne] allows the reasoning behind a particular statute to be carefully scrutinized. If, as the Court held in Cleburne, the ordinance or statute was enacted because of the unreasonable fears of local residents, then the statute is irrational and subject to constitutional overruling”).
  90. THOMAS E. ROBERTS, A PRACTICAL APPROACH TO SECTION 1983 LITIGATION, § V.D. EQUAL PROTECTION (2006); Powers v. Harris, 379 F.3d 1208, 1224 (10th Cir. 2004) (“[T]he [Supreme] Court itself has never applied Cleburne-style rational-basis review to economic issues”).
    A case in Pennsylvania seems to suggest that a heightened review standard might be appropriate in some economic contexts. Allegheny Tower Assocs., LLC v. City of Scranton Zoning Hearing Bd., 152 A.3d 1118 (Pa. Commw. Ct. 2017) (reversing a denial of a special exception permit to construct a communications tower in a light industrial district). The court’s analysis in Allegheny Tower resembled Cleburne in that neighboring property owners’ complaints that the tower would negatively affect an existing residential neighborhood were not sufficient to justify denying the special exception. Id. at 1124. However, the court based its holding on the finding that those objecting to the cell tower project did not satisfy the required standards pertaining to special exceptions set forth in the zoning ordinance. Id. at 1127. It therefore is likely a limited indicator of whether Cleburne is expanding into equal protection challenges against economic legislation.
    Although not a neighborhood opposition case, the Sixth Circuit in Craigmiles v. Giles did invalidate an economic regulation as violative of the Equal Protection Clause under rational basis review. 312 F.3d 220 (6th Cir. 2002). The court cited Cleburne in explaining that the Supreme Court has been “suspicious of a legislature’s circuitous path to legitimate ends when a direct path is available.” Id. at 227. The court ultimately held that a state statute’s prohibition on sales of caskets by anyone not licensed as funeral director violated substantive due process and equal protection, finding that the “weakness” of the State’s proffered justifications indicate that the challenged statute “was nothing more than an attempt to prevent economic competition.” Id. at 225-29. But see Powers, 379 F.3d at 1225 (upholding under an equal protection challenge a similar State statute requiring any person engaged in the sale of funeral service merchandise, including caskets, to be a licensed funeral director after holding that “intrastate economic protectionism, absent a violation of a specific federal statutory or constitutional provision, is a legitimate state interest”). For arguments that courts should employ a heightened rational basis review for economic regulations, see generally Equality of Opportunity in the Regulatory Age, supra note 59.
  91. Although unsubstantiated neighborhood opposition is arguably just as impermissible a justification to deny an economic land use, courts likely are more unwilling to extend Cleburne to protect economic land uses because it more visibly marks a shift from the traditionally invariable application of deferential rational basis review for economic legislation. See note 55, supra.
  92. 958 F.2d 1354 (6th Cir. 1992).
  93. Id. at 1360 (internal quotations omitted).
  94. Id. at 1364.
  95. Id. at 1360.
  96. Id. at 1361.
  97. Id.
  98. 325 F. Supp. 2d 1349 (M.D. Fla. 2004).
  99. Id. at 1360-62.
  100. Id. at 1359-60; see also A Helping Hand, LLC v. Baltimore Cty., 515 F.3d 356 (4th Cir. 2008) (an ordinance targeting a methadone treatment clinic passed in response to community opposition to the clinic violated substantive due process); New Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 310 (3d Cir. 2007) (summary judgment precluded by issues of material fact pertaining to statute restricting the establishment of methadone clinics near schools, churches, and residential housing developments). The court in Open Homes Fellowship also found that the challenged ordinance’s treatment of the plaintiffs-applicants as a religious institution violated equal protection under rational basis review. 325 F. Supp. at 1364. Cleburne applies to other cases where an ordinance restricts uses by religious institutions. In Cornerstone Bible Church v. City of Hastings, the Eighth Circuit held that summary judgment was precluded by material issues of fact as to whether an ordinance which excluded churches from certain commercial and industrial districts violated the Equal Protection Clause because the city “failed to support its exclusion of the Church with any justification beyond the conclusory statements in the affidavits of the city planners.” 948 F.2d 464, 471-72 (8th Cir. 1991); see also Congregation Kol Ami v. Abington Twp., 309 F.3d 120 (3d Cir. 2002) (explaining that although ordinances restricting religious uses in certain residential districts may be “subject to such deferential review[, this] does not mean that they are subject to no meaningful review [… A] finding of bare animus towards a group or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, is not necessary for a zoning ordinance to fail under an equal protection challenge, [but] such evidence is likely sufficient”). Civil Liberties for Urban Believers, 342 F.3d at 770 (Posner, J., dissenting) (“When government singles out churches for special regulation, […] the risk of discrimination […] is great enough to require more careful judicial scrutiny than in the ordinary equal protection challenge to zoning”).
  101. 531 U.S. 356 (2001).
  102. Id. at 374.
  103. Id. at 367 (quoting Cleburne, 473 U.S. at 448).
  104. Id.
  105. Id. at 367-68; see also LAND USE LAW, supra note 1, at § 2.48.
  106. 509 F. Supp. 2d 865, 869 (C.D. Cal. 2007). The “biosolids” at issue in the case were sewage treatment residues shipped to farmland located in unincorporated areas for use as fertilizer.
  107. Id. at 876-78.
  108. Id. at 880.
  109. Powers, 379 F.3d at 1224 (“Romer and Cleburne may not signal the birth of a new category of equal protection review”); Acierno v. New Castle County, 2000 WL 718346 at *10, n.3 (D. Del. May 23, 2000) (“The Court [in Cleburne] did not reach its decision after an analysis of the city’s subjective motivations”).
  110. 157 F.3d 819, 823-24 (11th Cir. 1998).
  111. Id. at 822-23.
  112. Id. at 823.
  113. Id. at 823-24 (holding Cleburne’s different reasoning was not in conflict with this court’s holding); Cf. City of Louisville, 958 F.2d at 1354-64 (following Cleburne’s reasoning and specifically applying it to this case’s facts).
  114. 706 F. Supp. 1479, 1501 (M.D. Fla. 1989).
  115. Id. at 1493.
  116. Id. at 1493, n. 15.
  117. Id. at 1501. The court goes on to explain that, even if the defendants did not articulate this justification, “the objective existence of these reasons, either after the passage or enforcement of the legislation, supports their actions. It is unnecessary for this Court to probe the minds of government officials to find their actual subjective motivations.” Id. at 1502. This high level of deference closely adheres to the traditional, “toothless” rational basis review.
  118. Id. at 1503. The court’s description of Cleburne as merely stating that “irrational motivations of government officials do not constitute rational grounds that can support legislation, [and &hellilp; not] that such irrational motivations alone would render an ordinance unconstitutional if the ordinance was otherwise supported by legitimate objectives” seems to predate the Supreme Court’s dictum in Garrett.
  119. 896 F.2d 1221, 1225 (9th Cir. 1990).
  120. Id.
  121. Id. at 1225-26. Interestingly, the court does not cite Cleburne in the opinion.
  122. Cf. Congregation Kol Ami v. Abington Twp., 309 F.3d 120, 143 (3d Cir. 2002) (“[W]e note that there is no evidence of anti-Jewish or anti-religious animus in the record. Although such evidence is not necessary to sustain an equal protection violation, this court has stated that negative attitudes or biases, unfounded fears or speculation, prejudice, self-interest, or ignorance are arbitrary and irrational ends that warrant finding a statute unconstitutional”) (internal quotations omitted).
  123. See Howard v. City of Garland, 917 F.2d 898, 900 (5th Cir.1990) (holding that plaintiff ’s reliance on Cleburne was misplaced in an equal protection challenge to a zoning ordinance restricting commercial day-care facilities in certain residential districts because there was “no claim that the city was motivated by irrational prejudice toward home day care or the children served thereby, nor is there any evidence of any such prejudice”). Similarly, courts have refused to extend rational basis with bite to equal protection challenges against ordinances restricting manufactured housing. See Texas Manufactured Housing Ass’n v. City of Nederland, 101 F.3d 1095, 1106 (5th Cir. 1996) (declining to “expand the established parameters of heightened scrutiny” to an equal protection challenge to an ordinance restricting mobile homes). Commentators have argued that Cleburne’s heightened rational basis review standard should apply to manufactured housing cases because, like the ordinance restricting the group home at issue in Cleburne, zoning barriers to manufactured housing result from “fear and irrational prejudice.” Daniel R. Mandelker, Zoning Barriers to Manufactured Housing, 48 URB. LAW. 233, 250 (2016).
  124. Garrett, 531 U.S. at 367.
  125. Cleburne, 473 U.S. at 450.
  126. See Civil Liberties for Urban Believers, 342 F.3d at 769–70 (Posner, J., dissenting) (discussing Garret).
  127. See discussion supra, Part III Section C.