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They advance a "class of one" theory: the City treated them differently than other similarly situated individuals in violation of their right to equal protection of the laws. The Fourteenth Amendment to the Constitution guarantees that states shall not deprive those in their jurisdiction of equal protection of the laws. 562 (2000), the Supreme Court recognized that its precedent supports an equal protection theory of "class of one." Because a class-of-one plaintiff is not alleging membership in a suspect class, he must prove that he has been intentionally singled out for disparate treatment from others who are similarly situated, and there was no rational basis for the different treatment. Accordingly, in the class-of-one context, official action does not violate the Equal Protection Clause so long as it is "rationally related to a legitimate government purpose." Grace United Methodist Church v. One such established legitimate purpose is a municipality's "promotion of public health, safety, and general welfare of [its citizens] via the control of traffic, noise, and pollution." Id.

The Tenth Circuit has described the "paradigmatic class-of-one case" as one in which "a public official inflicts a cost or burden on one person without imposing it on those who are similarly situated in material respects, and does so without any conceivable basis other than a wholly illegitimate motive." Jicarilla Apache Nation v. Courts should apply this theory cautiously, id., and the element of different treatment from similarly situated persons is all the more imperative in class-of-one cases. City of Stillwater, 383 F.3d 1199, 1213-14 (10th Cir. In Jennings, the Tenth Circuit explained: Traditional equal protection law deals with groups unified by the characteristic alleged to be the root of the discrimination . Looking only at one individual, however, there is no way to know whether the difference in treatment was occasioned by legitimate or illegitimate considerations without a comprehensive and largely subjective canvassing of all possible relevant factors. It is therefore imperative for the class-of-one plaintiff to provide a specific and detailed account of the nature of the preferred treatment of the favored class.

These concerns are ever present in the context of municipal zoning, where a governmental body "will often, perhaps almost always, treat one landowner differently from another, and one might claim that, when a city's zoning authority takes an action that fails to conform to a city zoning regulation, it lacks a `rational basis' for its action[.]" Olech, 528 U.S. Due to these considerations, class-of-one plaintiffs must provide "compelling evidence of other similarly situated persons who were in fact treated differently." Bruner v. This evidence must be sufficient to allow the Court to "meaningfully compare" the City's treatment of all parties. Otherwise, the class-of-one theory "could transform the federal courts into `general-purpose second-guessers of the reasonableness of broad areas of state and local decisionmaking: a role that is both ill-suited to the federal courts and offensive to state and local autonomy in our federal system.'" Jicarilla Apache Nation, 440 F.3d at 1209 (quoting Jennings, 383 F.3d at 1211). The factual background in Jennings provides a helpful starting point for the Court's class-of-one analysis. There, the plaintiff alleged that police officers in Stillwater, Oklahoma failed to adequately investigate an alleged rape. She presented evidence that out of fifty individuals who reported rapes to the police, she was the only one who was forced to sign a waiver of prosecution. The Tenth Circuit nonetheless held that this did not constitute "compelling evidence" of different treatment, noting that the plaintiff failed to "supply any information regarding the allegedly similarly situated rape victims." Id. Although the following examples are specific to the facts at issue in Jennings, it is helpful to review what evidence the Tenth Circuit would have needed in order to evaluate the plaintiff's class-of-one claim: "What were the relative strengths of [the other fifty] cases? In how many was the victim's consent a central issue? Did any other victim state that she would have trouble identifying the perpetrators?" Id. Plaintiffs contend that they have provided adequate evidence of other similarly situated mobile home parks and subdivisions that were treated more favorably than Plaintiffs. They claim that of the "several" mobile home parks in the City, Doc. 102, Zia Shadows was the only one that the City required to comply with the zoning code. Additionally, aside from Plaintiffs, no mobile home park applicant was required to submit financial information to the City. Furthermore, the City has not required the current proprietor of the subject property to comply with any of the requirements it imposed on Plaintiffs. The City required Plaintiffs to pay for substantially more than their share of the Elks Drive improvements, with no legal basis to support such a demand, and made no such similar demands of other similarly situated mobile home park landowners. The evidence Plaintiffs have submitted is insufficient to meet the requirement of "compelling evidence" articulated in Bruner and Jennings. They present deposition testimony from Vince Banegas, Development Services Manager. Banegas's deposition, Plaintiffs' counsel asked him if various mobile home parks in Las Cruces were in compliance with the new zoning code, and/or whether such parks were in the compliance plan process set forth in the December, 2002 letter from city planners Robert Kyle and Lani Ruth. Banegas did not have files pertaining to these parks with him at his deposition, he was unable to remember whether most of them had compliance plans. Nor could he remember if any other mobile home parks were required to prove they were providing affordable housing in order to obtain a zoning variance; however, he referenced one park on the East Mesa he believed might have been subjected to such a requirement in light of the emphasis on affordable housing in the City's comprehensive plan, but he could not remember the property's name. With respect to Plaintiffs' claim that Zia Shadows was the only mobile home park the City required to submit financial information, Plaintiffs have provided insufficient evidence. They cite to a page of Robert Kyle's deposition that they do not provide. As such, the record before the Court contains no evidence to support this claim.

The Court would also note that much of the evidence to which Plaintiffs cite actually supports a finding that other mobile home parks were not similarly situated to Zia Shadows, insofar as the class-of-one equal protection analysis is concerned. Banegas stated that the City began contacting individual mobile home parks in 2001 after the changes to the zoning code were implemented. Representatives from the City met with each mobile home park owner individually about implementing a compliance plan. It is evident from his testimony that each park was uniquely situated, and different considerations applied depending on the extent of the changes each park had to implement in order to come into compliance with the new code. initiating meetings to go over how to bring about compliance, a very painful process, very lengthy process. And there's still some mobile-home parks that are not in compliance, and mobile-home parks that we have not completed compliance plans for."). This is corroborated by the City Council meeting minutes that Plaintiffs attached to earlier briefing, which summarize the approval process for four other developments in Las Cruces. Far from demonstrating that these developers were "similarly situated in material respects," Jicarilla Apache Nation, 440 F.3d at 1209, the minutes describe the respective unique characteristics of each property and/or the unique concerns the Council had regarding approval of the projects. Plaintiffs allege that various actions on the City's part amounted to arbitrary and capricious treatment, but the Court has no evidence of similarly situated mobile home park owners who were treated materially differently.

It is clear from the Court's analysis in Jennings, see supra at 14-15 (quoting Jennings, 383 F.3d at 1215), that Plaintiffs must submit detailed evidence demonstrating the extent to which other mobile home parks who received more favorable treatment were indeed similarly situated.


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