USCA4 Appeal: 22-1690 Doc: 42 Filed: 01/24/2024 Pg: 1 of 13

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-1690

SAS ASSOCIATES 1, LLC; MILITARY 1121, LLC,

Plaintiffs – Appellants,

v.

CITY COUNCIL FOR THE CITY OF CHESAPEAKE, VIRGINIA,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, Senior District Judge. (2:21−cv−00491−RAJ−DEM)

Argued: December 6, 2023 Decided: January 24, 2024

Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Niemeyer and Judge Agee joined.

ARGUED: Robert W. McFarland, MCGUIREWOODS, LLP, Norfolk, Virginia, for Appellants. Ellen Frances Bergren, OFFICE OF THE CITY ATTORNEY, Chesapeake, Virginia, for Appellee. ON BRIEF: V. Kathleen Dougherty, Norfolk, Virginia, Sean A. McClelland, MCGUIREWOODS LLP, Washington, D.C., for Appellants. Jacob P. Stroman IV, City Attorney, Daniel J. Wisniewski, Assistant City Attorney, OFFICE OF THE CITY ATTORNEY, Chesapeake, Virginia, for Appellee. USCA4 Appeal: 22-1690 Doc: 42 Filed: 01/24/2024 Pg: 2 of 13

WILKINSON, Circuit Judge:

SAS Associates 1, LLC and Military 1121, LLC (collectively “the Developers”)

appeal the district court’s order dismissing their claim against the City Council of the City

of Chesapeake, Virginia (“the City Council”) pursuant to Federal Rule of Civil Procedure

12(b)(6). The Developers alleged that the City Council violated their equal protection rights

when it denied their rezoning applications. But the Developers’ own complaint belied their

claims by providing multiple sound bases for the denial. We thus affirm.

I.

A.

The Developers own several parcels of land in Chesapeake, Virginia. They wanted

to combine those parcels to create a ninety-acre development that would include single-

and multifamily housing units, commercial space, and a sixty-acre conservation district.

But there was a hitch in the plan. The area slated for development lay within several

zones—agricultural (A-1), general business (B-4), and single-family residential (R-15S)—

that each placed restrictions on land use. Those restrictions did not allow for the types of

uses the Developers envisioned.

The Developers thus sought to have their parcels rezoned. They filed their first

rezoning application in June 2016, asking that their land be rezoned for multifamily

residential (R-MF1), neighborhood business (B-1), and conservation (C-1) uses. The

application articulated a development plan that included 293 townhouse-style

condominiums and 10,000 square feet of commercial space.

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In Chesapeake, such rezoning applications are first reviewed by the city’s planning

commission, which assesses the application, holds an initial public hearing, and

recommends a course of action to the City Council. After its hearing, the planning

commission recommended that the City Council approve the Developers’ 2016

application. It found that the proposal satisfied Chesapeake’s Planning and Land Use

Policy, which set level-of-service standards meant to ensure that a development would not

overwhelm local infrastructure. The planning commission also found that the proposal was

consistent with Chesapeake’s comprehensive plan for the area and compatible with the

development of the surrounding community.

The City Council’s own public hearing on the Developers’ application was less

promising. Residents from the surrounding neighborhoods spoke out against the proposed

development, and the City Council ultimately denied the application, citing community

opposition and observing that existing zoning classifications did not preclude useful

development.

The Developers revised their proposal and refiled in 2018. The revised proposal

reduced the residential density of the project by nearly fifty percent, outlining plans for 153

single-family and townhouse units. It also included 11,300 square feet of commercial space

and a sixty-acre conservation district. The planning commission again found that the

Developers’ application was consistent with Chesapeake’s comprehensive plan, its level-

of-service standards, and the development of the surrounding community.

The City Council held a public hearing on the Developers’ revised application in

early 2020. Residents from nearby neighborhoods once again spoke against the proposed

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development. They expressed concern about recent flooding and worried that the

development would compound the area’s drainage problems. They also complained that

the inhabitants of the new dwellings would exacerbate existing traffic congestion.

After hearing from the concerned neighbors, Councilmember Debbie Ritter moved

to deny the application. The land at issue, she said, could be developed under its present

zoning classifications. In her view, given recent infrastructure issues in the area, it was not

the right time to relax zoning restrictions and greenlight a new development. She also

criticized the city’s level-of-service standards as outdated and inadequate. The fact that the

development met those outdated standards did not assuage her concerns that it would have

a detrimental effect on the infrastructure in the area. Specifically, she worried that the

development would compound flood risk and increase enrollment at already overpopulated

schools. She also expressed concern about traffic issues resulting from the “1500 vehicle[]

trips a day” projected to be generated by the Developers’ project. J.A. 21. Councilmember

Ritter summed up her position by stating, “So for all those reasons I think that sort of

memorializes my feeling on the application and why, unfortunately . . . this isn’t the right

time.” Id.

In response, Chesapeake’s Floodplain Administrator, James Tate, was asked to

address the drainage concerns. Mr. Tate acknowledged that the surrounding area suffered

from regular flooding due to the elevation of previously developed land, but averred that

the Developers’ project could be designed so that it would not have a detrimental effect.

Notwithstanding Mr. Tate’s assessment, the City Council ultimately voted 7-2 to

deny the Developers’ application.

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B.

Following the denial of their second application, the Developers filed a complaint

in the United States District Court for the Eastern District of Virginia, alleging that the City

Council’s denial violated their right to equal protection of the laws under the Fourteenth

Amendment and

, as well as their rights against unconstitutional rezoning

limitations under Virginia state law.

The Developers argued that the City Council had violated their right to equal

protection by denying their application even though it had approved similar applications

from other developers. In support, the Developers’ complaint identified ten “similarly

situated” developments that had been permitted to go forward. The Developers also argued

that the City Council’s reasons for denying their applications were irrational and arbitrary

in light of the record before it, and that therefore the denial was only logically explained

by discriminatory animus.

The City Council moved to dismiss the Developers’ action pursuant to

Rule 12(b)(6). The district court granted the motion, finding that the Developers had failed

to state a claim upon which relief could be granted because the ten identified developments

were not similarly situated and because the Developers had not sufficiently alleged any

purposeful discrimination by the City Council. The district court also dismissed the pendent

state-law claim for lack of independent jurisdiction. This appeal followed.

II.

On appeal, the Developers contend that the district court erred in dismissing their

claim under Rule 12(b)(6), a matter we review de novo. Woods v. City of Greensboro, 855

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, 646 (4th Cir. 2017). They posit that their complaint plausibly alleged that

similarly situated developments were approved while theirs was denied. They also contend

that they adequately refuted the City Council’s stated rationales for treating their

development differently. Under Village of Willowbrook v. Olech,

(2000) (per

curiam), they argue, those allegations sufficed to make out a class-of-one equal protection

claim plausible enough to withstand a Rule 12(b)(6) challenge.

As a prefatory matter, we underscore that zoning decisions are presumptively the

province of local governments. Land use decisions like these lie at the core of local

governments’ historic responsibilities in much the same way that state governments

regulate domestic relations and the federal government oversees matters of national

security. See Gardner v. City of Baltimore Mayor & City Council,

(4th Cir.

1992).

To have the federal courts upending zoning decisions impairs the constitutional

architecture in two ways. First, zoning challenges constitute a request for the federal

government to intervene in local affairs. Zoning decisions primarily impact the

communities to which they apply. Local officials are well equipped to make such decisions

because they interact with those most affected and can remain attentive to their changing

needs. Their constituents attend the schools, drive the roads, and drink the water that zoning

classifications affect. The federal government, on the other hand, waves a distant wand. It

cannot inform itself about individual communities well enough to know their needs and is

thus comparatively ill-suited to decide matters of zoning.

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Second, appeals of zoning disputes such as this one are requests for judicial

authority to displace discretionary legislative judgments. Zoning decisions generally turn

on questions of public policy about how to organize a community: What types of properties

should be slated for which areas? What is the optimal population density for which

location? Such judgments are best left to elected bodies, which are both representative and

accountable. Federal courts are relatively beyond the reach of the displeased; democracy

by contrast does not disenfranchise the discontented.

We see no reason to override the City of Chesapeake’s judgment here. To make out

an equal protection claim, the Developers must “plead sufficient facts to demonstrate

plausibly that [they] w[ere] treated differently from others who were similarly situated and

that the unequal treatment was the result of discriminatory animus.” Equity In Athletics,

Inc. v. Dep’t of Educ.,

(4th Cir. 2011). Here, just like in Equity In

Athletics, the Developers “failed to make sufficient allegations with respect to either

element.”

A.

As an initial matter, the Developers have supplied no facts from which we could

infer discriminatory animus on the part of the members of the City Council. Discriminatory

animus cannot be established simply by showing “that a benefit was denied to one person

while conferred on another.” Sylvia Dev. Corp. v. Calvert County, Md.,

, 819

(4th Cir. 1995). Rather, there must be some evidence that the disparate treatment was

intentionally selected to produce “adverse effects upon an identifiable group” or individual.

Wayte v. United States,

(1985) (quoting Pers. Adm’r of Mass. v. Feeney,

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(1979)). Such evidence can come in various forms. For example, a

complainant might provide facts that establish the decisionmaker harbored ill will toward

her or a class of which she was a member; she might provide evidence of a pattern of

historical discrimination intended to disadvantage a particular person or class; or she might

point to statements in the contemporaneous record that evince a discriminatory purpose.

See Sylvia Dev. Corp., 48 F.3d at 819.

In this case, the Developers attempt to allege discriminatory intent by taking aim at

Councilmember Ritter, who voiced an opinion on traffic congestion and drainage concerns

and school capacity. For those comments, she is alleged to have harbored discriminatory

animus. But the record is devoid of anything that would lead us to conclude that the

concerns she expressed were pretexts for discriminatory animus or that there was an issue

of triable fact as to the same. Councilmember Ritter was discussing precisely the kinds of

things that local governments routinely discuss in considering matters of zoning. To say

that a councilmember cannot opine on congestion in the schools and on the streets and

increased burdens on the drainage and sewage systems without being accused of

discriminatory animus would be to cripple her ability to represent her constituents. The

factors Councilmember Ritter considered here are the very ones that ought to be taken into

account when making zoning determinations.

Moreover, Councilmember Ritter’s concerns echoed those of the community. The

Developers argue that those concerns were unfounded, but that is a dispute best umpired

by the City Council, not by a federal court. It is the City Council’s “responsibility to

mediate disputes between developers[] and local residents.” Sunrise Corp. of Myrtle Beach

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v. City of Myrtle Beach,

, 329 (4th Cir. 2005). And given the facts before

them, the councilmembers “reasonably could have believed” that the denial was “rationally

related” to the “legitimate government interest” of mitigating flooding, traffic, and school

overcrowding in the region. Front Royal & Warren Cnty. Indus. Park Corp. v. Town of

Front Royal, Va.,

(4th Cir. 1998). Whether they were right or wrong on

that judgment is a matter for the next election.

B.

The Developers’ case is further weakened by their inability to supply any

comparator property that would support their view. Not one of the properties they identify

in the complaint is sufficiently similar to theirs to support an inference of zoning

malfeasance.

In Olech, on which the Developers rely, the Supreme Court confronted a town which

had departed from a clear, objective standard that had been uniformly applied to other

property owners.

. The plaintiffs in that case had asked to be connected to

the town’s water supply.

. The town demanded that they cede it a thirty-three-

foot easement, even though the town required only fifteen-foot easements for water

connections from other property owners.

The plaintiffs refused.

After much delay,

the town relented and connected their water service with a fifteen-foot easement.

The

Court held that those facts made out a sufficient case that the town had “intentionally”

treated the plaintiffs differently than “other similarly situated property owners,” and that

the departure was irrational and wholly arbitrary.

. That, the Court held, was

enough to plausibly allege an equal protection violation.

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In contrast, discretionary zoning decisions such as the one here are generally not

governed by “a clear standard against which departures, even for a single plaintiff, c[an]

be readily assessed.” Engquist v. Or. Dep’t of Agric.,

(2008) (discussing

Olech). To establish a class-of-one claim, a person complaining of a zoning decision must

therefore “show an extremely high degree of similarity between themselves and the persons

to whom they compare themselves.” Clubside, Inc. v. Valentin,

(2d Cir.

2006). Only then can we infer that the decisionmaker’s differential treatment was

intentional and arbitrary.

The Developers, in their own pleadings, demonstrated that there was not an

“extremely high degree of similarity” between themselves and the ten other developments

to which they purported to be substantially similar. Nine of the ten developments were

constructed between 1960 and 2009. In the interval between 2010 and the City Council’s

2020 decision, obvious demographic changes had occurred in Chesapeake, as an influx of

more than twenty-five thousand new residents came into the city. QuickFacts: Chesapeake

City, Virginia, U.S. Census Bureau (last visited Jan. 4, 2024). Comparators lose their force

through the passage of time. As a city becomes more densely populated, zoning authorities

should not be required to approve any development that resembles one approved when the

city was less crowded.

The only proposed comparator approved in the same time frame as the Developers’

proposal was Knell’s Ridge. But it is located 1.3 miles away on a different road, in a

different part of the city. Where zoning is concerned, short distances can sometimes require

different outcomes. It is not at all unlikely that one proposed site sits near a crowded school

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while another does not. Or that one proposed location lies at an intersection free of traffic

jams and another sits at a congested or even dangerous traffic thoroughfare.

Moreover, none of the comparator developments were alleged to include a

commercial component, while the Developers here proposed 11,300 square feet of

commercial space. And none of them had requested the Developers’ proposed combination

of R-MF1, B-1, and C-1 zoning classifications. “[I]n the land-use context, to be prima facie

similar, the comparators must be engaged in the same type of land use.” Clubside,

(discussing the holding of Campbell v. Rainbow County, Ala.,

(11th

Cir. 2006)); see also Tri Cnty. Paving, Inc. v. Ashe County,

(4th Cir.

2002) (holding that an asphalt plant was not similarly situated to other businesses that did

not pose similar environmental and safety concerns).

These dissimilarities, as the district court recognized, are fatal. It is fundamental to

equal protection law that those differently situated may be treated differently.

C.

The Developers note that their case was resolved on a motion to dismiss pursuant

to Rule 12(b)(6). They contend that their claim should proceed at least to summary

judgment, if not to trial. ∗ They claim that at the core of their case is an evidentiary matter

governed by the sequential steps in the federal rules.

∗ The Developers alternatively ask that we remand the case with instructions that the district court should grant leave to amend the complaint. We decline to do so. The Developers never asked for leave to amend below and given the infirmities in their complaint any amendment would have been futile. See Save Our Sound OBX, Inc. v. N.C. Dep’t of Transp.,

(4th Cir. 2019).

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Not so. The Supreme Court has emphasized that conclusory statements devoid of

plausibility are not enough to survive a Rule 12(b)(6) motion. A complaint must include

“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly,

(2007). The Developers’ complaint does not clear that hurdle.

Pleadings that simply state the elements of an equal protection claim are insufficient. See

Ashcroft v. Iqbal,

(2009). As discussed above, the complaint here alleged

no facts from which we can plausibly infer discriminatory intent. And importantly, the

Developers’ allegations that the zoning denial was irrational are undermined by its

inclusion of Councilmember Ritter’s reasons for supporting it.

The Developers claim, however, that there is an evidentiary issue as to whether the

city’s concerns were well founded. But that is insufficient by itself to remove the

controversy from the province of local government and put it in the hands of a federal

court. The Developers’ disagreement with the City Council’s decision does not render the

Council’s judgment call pretextual. The members of the City Council have been selected

by the people of the area precisely because the people trust their judgment. The Developers

have been given no such mandate to dictate what types of zoning classifications are

reasonable or appropriate, nor have we. Whether the Developers ought to have their

petition granted may be an evidentiary matter, but the evidence was properly assembled in

advance of the City Council decision for consideration by the Council itself and any

agencies it enlisted to assist it. Just because something is an evidentiary matter in zoning

does not mean that it is subject to federal judicial resolution. Local zoning hearings may

feature adversary battles the equal of any evidentiary hearing in federal court.

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Likewise, the Developers have not alleged facts that plausibly qualify them for a

class-of-one claim under Olech. A class-of-one claim requires a showing that highly similar

comparators received better treatment. Under Twombly and Iqbal, it is not enough to simply

allege such similarity; the similarity must be plausible. The Developers have provided no

valid comparators and their conclusory insistence that the alleged comparator properties

are similar is just the type of “naked assertion” that requires “further factual enhancement”

to “nudge” a claim “across the line from conceivable to plausible,” such that it passes

muster under Rule 12(b)(6). Twombly,

.

III.

The citizens of Chesapeake retain the right to fashion the destiny of their community

subject to whatever appeals state and local zoning law provides. See Va. Code §§ 15.2-

2308 to -2312; Chesapeake, Va., Zoning Ordinance §§ 20-300 to -303. It is their quality of

life at issue, not ours. They are the ones, not us, who will feel the effects, year in and year

out, of whatever decision is made. They are the ones who will be disadvantaged by

overcrowded schools, who will wait in traffic lines, and who will encounter problems with

flooded streets, no small matter for the many coastal communities in our nation. The record

gives us no reason to take their future from them, and we affirm the judgment of the district

court dismissing the complaint.

AFFIRMED

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