In 2000, in its 2-page per curiam opinion in Village of Willowbrook v. Olech, the Supreme Court gave hope to developers and property owners that the equal protection clause could be used to prevent local zoning and environmental officials from engaging in disparate treatment against disfavored residents.  The Court stated that one may bring an equal protection claim as a “class of one” where

the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.

Since Olech, however, the Courts of Appeal have been doing their best to limit Olech’s reach.  The most recent decision, in Freeman v. Town of Hudson, was issued on Monday by the 1^st Circuit Court of Appeals.  The Freemans complained that the Town Conservation Commission’s enforcement of a conservation restriction on their property stemmed from personal animus and was inconsistent with the lack of enforcement by the Commission against the Freemans’ neighbors.

The Court was having none of it, concluding that the neighbors were not similarly situated (and so not even reaching the rational basis test).  The Court noted that the Freeman’s allegations about their neighbors did not concern violations of the conservation restriction that was at the heart of the Commission action against the Freemans.

We have held that class-of-one claims require “an extremely high degree of similarity between [the plaintiffs] and the persons to whom they compare themselves.” In the land-use context, this means more than “point[ing] to nearby parcels in a vacuum and leav[ing] it to the municipality to disprove conclusory allegations that the owners of those parcels are similarly situated.”

In short, if one want to bring an equal protection claim against a regulator under Olech, the complaint must allege disparate treatment by the regulator where the facts of the situation used to demonstrate the lack of equal protection really are on all fours with the facts underlying the enforcement action against the plaintiff.