Preferential Treatment and Zoning Enforcement

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<span> </span><a href="http://sogweb.sog.unc.edu/blogs/localgovt/?p=2220&quot; target="”_blank”">a post on the
NC Local Government Law Blog.</a><br>
<br>

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 <a href="http://supreme.justia.com/us/118/356/case.html&quot; target="”_blank”"><em>Yick
Wo v. Hopkins</em></a>, 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.<br>
<br>
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.<br>
<br>
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 <a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC36…; target="”_blank”">City
Ethics Model Code provision</a>). 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.<br>
<br>
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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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