You are here
Preferential Treatment and Zoning Enforcement
Tuesday, April 13th, 2010
Robert Wechsler
What
do you do when an official discriminates against you by sicking a local
government inspector on you? This question was raised by David Owens in a post on the
NC Local Government Law Blog.
Owens' answer is that (at least in North Carolina), unless you can show evidence of a pattern of conscious discrimination done with “an evil eye and an unequal hand" (this language is from the U.S. Supreme Court decision Yick Wo v. Hopkins, 118 U.S. 356 (1886)), you don't stand much of a chance before a court of law. If you decide to go the equal protection route, the chances aren't much better: the conduct better be egregious. One instance of discrimination won't do it.
Owens does not consider ethics complaints. One reason, I would guess, is that in the hypothetical he chose, a woman loses her business due to her support for a neighbor's opponent in a council race the neighbor won. An ethics complaint won't give her any damages for loss of her business (her many competitors, including the one used by the council member's wife, were untouched) . But it may send a message to other officials not to abuse their office by means of preferential treatment against someone they don't like.
Owens' hypothetical would be a perfect case of preferential treatment, special consideration, or misuse of office, three names given to the same basic ethics provision (see the City Ethics Model Code provision). Note that, in Owen's hypothetical, the provision is only relevant because it includes indirect preferential treatment, that is, getting someone else to close down her beauty salon. The word "indirect" is one of the most important words in an ethics code.
Owens points out an alternative solution: an amendment to the zoning code to allow land uses that are allowed in practice, so that practice and law become the same. This will not only make the law more respected, but also prevent preferential treatment with respect to this sort of problem.
Robert Wechsler
Director of Research-Retired, City Ethics
---
Owens' answer is that (at least in North Carolina), unless you can show evidence of a pattern of conscious discrimination done with “an evil eye and an unequal hand" (this language is from the U.S. Supreme Court decision Yick Wo v. Hopkins, 118 U.S. 356 (1886)), you don't stand much of a chance before a court of law. If you decide to go the equal protection route, the chances aren't much better: the conduct better be egregious. One instance of discrimination won't do it.
Owens does not consider ethics complaints. One reason, I would guess, is that in the hypothetical he chose, a woman loses her business due to her support for a neighbor's opponent in a council race the neighbor won. An ethics complaint won't give her any damages for loss of her business (her many competitors, including the one used by the council member's wife, were untouched) . But it may send a message to other officials not to abuse their office by means of preferential treatment against someone they don't like.
Owens' hypothetical would be a perfect case of preferential treatment, special consideration, or misuse of office, three names given to the same basic ethics provision (see the City Ethics Model Code provision). Note that, in Owen's hypothetical, the provision is only relevant because it includes indirect preferential treatment, that is, getting someone else to close down her beauty salon. The word "indirect" is one of the most important words in an ethics code.
Owens points out an alternative solution: an amendment to the zoning code to allow land uses that are allowed in practice, so that practice and law become the same. This will not only make the law more respected, but also prevent preferential treatment with respect to this sort of problem.
Robert Wechsler
Director of Research-Retired, City Ethics
---
Story Topics:
- Robert Wechsler's blog
- Log in or register to post comments
