Chick-Fil-A, Land Use Permitting and the Constitution

This week, elected officials in San Francisco, Boston, Chicago and New York made statements that Chick-Fil-A restaurants would not be welcome in their jurisdictions because of the personal opinions expressed by the company’s CEO Dan Cathy.  What was surprising in all of this was not the conflict of political opinions over same-sex marriage.  The bigger issue — from the perspective of land use law — was the willingness of those same public officials to suggest a course of action that would violate state and federal Constitutional law if taken to its logical conclusion.

For example, according to press reports, a Chicago alderman said that he would personally “deny a land use permit [to Chick-Fil-A] to open a restaurant in my ward.” His refusal to grant a land use permit on the basis of the personal views of the property owner would almost certainly be a violation of the federal Constitution — specifically the Fourteenth Amendment’s equal protection clause.   (By the way, the California Constitution also guarantees equal protection of the laws.  Cal. Const. art. I, section 7(a).) 

For an equal protection violation to occur, a property owner does not need to be a member of an identifiable class.  The equal protection guarantee protects not only groups, but individuals who would constitute a “class of one.”  “A plaintiff can establish a ‘class of one’ equal protection claim by demonstrating that it has been intentionally treated differently from others similarly situated and that there is no basis for the difference in treatment.”  Squaw Valley Dev. Co. v. Goldberg (9th Cir. 2004) 375 F.3d 936. 

“Class of one” equal protection cases often involve claims that a government action was “arbitrary and irrational,” usually on the basis of vindictive action, illegitimate animus or ill will.  The textbook case is the U.S. Supreme Court’s decision in Village of Willowbrook v. Olech (2000) 528 U.S. 562.  In that case, the court held that a village unfairly required one property owner to grant a larger water connection easement than that required by neighboring property owners.  Why? Because the local government held animosity toward the property owner from a previous, successful lawsuit the property owner had filed against the village. 

In the Ninth Circuit, federal courts have also found a cause of action when government action in the land use context is based on “arbitrary or malicious conduct.”  See Lockary v. Kayfetz (9th Cir. 1990) 917 F.2d 1150; Valley Outdoor, Inc. v. City of Riverside (9th Cir. 2006) 446 F.3d 948.  Ninth Circuit courts have also established a test whereby an equal protection plaintiff may show pretext by creating a triable issue of fact that either: “(1) the proffered rational basis was objectively false; or (2) the defendant actually acted based on an improper motive.”  Squaw Valley Dev. Co. v. Goldberg (9th Cir. 2004) 375 F.3d 936. So, in the present case, even if the proposed Chick-Fil-A restaurant might cause increased traffic, noise, or air pollution from cooking all that chicken, a project applicant could argue that the real reason that the city rejected the permit was the CEO’s personal views. 

Regardless of your beliefs on the political question (and this blog is not taking a position one way or the other, as this blog only deals with real estate and land use law), you can see why the legal issues have caused several public officials to backtrack on their comments against the land use permitting of Chick-Fil-A in their jurisdictions. 

Again, even those backtracking statements may not be enough if Chick-Fil-A wants to take legal advantage.  On his Land Use Prof Blog, Ken Stahl, an associate professor of law at Chapman University, astutely observed “because of what the various officials in Chicago, San Francisco, Boston, etc. have said, it will only be harder to exclude Chick-Fil-A even if the city has a legitimate concerns about traffic, noise, etc. because the inference of discriminatory animus will be so hard to shake.” 

Only time will tell if the owners/franchisees of Chick-Fil-A in the aforementioned cities pursue their expansion plans and, if they do, whether land use litigation will ensue.