David J. Sowers v. Powhatan County, Virginia; Board of Supervisors of Powhatan County, Virginia

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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

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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Unpublished opinions are not binding precedent in this circuit.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 appeal involves the denial of a rezoning
application filed by David J. Sowers in Powhatan County,
Virginia. Sowers contends that the Powhatan County Board of
Supervisors (the Board) denied him equal protection of the law
by departing from its typical application procedures and by
initially denying his application. The Board ultimately
approved Sowers’s application after he filed suit in state
court. 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 was similarly situated to other zoning
applicants, and he does not show that the Board lacked a
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.
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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
official requests that he increase his cash proffer. He was
entitled to refuse; under Virginia law, cash proffers are
voluntary and zoning decisions cannot be conditioned on
proffers. Gregory v. Bd. of Supervisors, 514 S.E.2d 350, 353
(Va. 1999).
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. At the hearing in October
2004 Sowers submitted further amended non-cash proffers to
address impact concerns. Although he submitted his amended
proffers after the deadline, the Commission voted to consider
them. Several citizens spoke at the hearing in opposition to
Sowers’s proposed subdivision, articulating concerns such as
increased traffic and the loss of the area’s rural character.
Many residents also sent letters in opposition. Additionally,
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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. The Commission director testified in his
deposition that this 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
concerns. However, because he did not submit the proffers at
least ten days before the Board’s November 17, 2004, public
hearing, the Board voted not to consider them. This was
admittedly exceptional; in no other instance had the 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
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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. (Sowers had
contracted to buy the 56 acres from Holland.) Several citizens
expressed concern that Holland’s interest precluded him from
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 circumstances of this case and the refusal of the
applicant [Sowers] to initially work with the Planning
Commission.” J.A. 436. Sowers challenged the denial by suing
the Board in state court. In January 2006, while his state suit
was pending, the Board voted to reconsider his application. It
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 to the Planning Commission
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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. The
district court concluded, however, that the record evidenced
several plausible reasons for the Board to treat Sowers’s
application differently, both procedurally and substantively,
and that Sowers failed to negate these conceivable rational
bases for the County’s differential treatment. The court
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
167, 174 (4th Cir. 2009). Summary judgment is appropriate only
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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 show that he was
“intentionally treated differently from others similarly
situated and that there is no rational basis for the difference
in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564
(2000). 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. The County Attorney observed that Sowers’s
proposal was “extremely controversial,” that it encountered
“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.” J.A. 495. Even when it is accepted that
some of the other applications that Sowers points to as
comparable also raised traffic concerns and aroused public
opposition, the record still indisputably demonstrates that the
public opposition to Sowers’s application was so fervent as to
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render him differently situated. Dozens of citizens sent
letters protesting Sowers’s proposal, and many spoke in
opposition at the hearings before the Planning Commission and
the Board.
Moreover, Sowers’s proposed subdivision presented
unique traffic concerns, particularly regarding access. All
traffic entering and exiting the subdivision would pass through
an existing subdivision, creating a “piggyback” or “funnel”
traffic effect. J.A. 403-04. Sowers maintains that another
application (the McClure application) also presented funnel
traffic concerns. Even if this is true, the record shows that
the funnel concerns were especially acute with Sowers’s
application.
Sowers was also differently situated from the
standpoint of interpersonal relations, as evidenced by the
Planning Commission director’s characterization of Sowers as a
“tough negotiator” who was unlike any other applicants with whom
he had ever dealt. Further, Sowers differentiated himself from
other applicants by 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
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with respect to traffic concerns, public opposition, and hard-
line 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 Equal Protection claim fails on an
alternative ground: he did not negate every conceivable
rational basis for the Board’s differential treatment. While it
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
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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 circumscribed by state law, the
rational basis inquiry does not apply with its typical
deferential force. This Court, however, applies the rational
basis test to local permit and zoning decisions. Tri-County
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. Sylvia, 48 F.3d at 820.
The “vast majority 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 a constitutional challenge ‘so long as it bears a
rational relation to some 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 support” the differential
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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 necessarily cannot pass muster under rational basis
review. Our precedent makes clear that state law is independent
from a rational basis inquiry. A “violation of state law is not
tantamount to a violation of a federal right.” Sunrise Corp. v.
City of Myrtle Beach, 420 F.3d 322, 328 (4th Cir. 2005).
“[D]isparate treatment, even if the product of erroneous or
illegal state action, is not enough by itself to state a
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 basis review does not
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require us to determine the Board’s actual motivation. Beach
Commc’ns, 508 U.S. at 315. We need only decide whether the
Board had “plausible reasons” for its different treatment of
Sowers’s application. Id. at 313. The deference to democratic
process that undergirds rational basis review means that we
consider only whether the Board “reasonably could have believed
that [its] action was rationally related to a legitimate
governmental interest.” Tri-County Paving, 281 F.3d at 439.
Because Sowers is unable to “negative every
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. The vehement public opposition
to his application, the unique traffic concerns that his
proposal raised, and the recusal of a Board member with a
perceived self-interest also clearly provided rational bases for
the Board’s action. Even if the only way (other than his
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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 to Sowers’s contention, public opposition
does furnish a rational basis for differential treatment in
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 constitutional amendment that
“identifie[d] persons by a single trait” (homosexuality) and
“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. Id. at 634. The public’s
opposition to Sowers’s zoning application did not stem from
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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. Nor has he shown
that the Board lacked a conceivable rational basis for its
different treatment of his application. Accordingly, the
judgment of the district court is
AFFIRMED.

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