Posted by: Patricia Salkin | July 22, 2017

Fed Dist Court in CA Dismisses Disparate Treatment Equal Protection Claim Against City

The Morrows owned a duplex and a vacant lot in the City Heights area of San Diego. Michael Richmond, a City Zoning Investigator for grading violations and environmentally sensitive lands in San Diego, noticed a grading violation on Plaintiffs’ vacant lot. He took photographs of what he perceived to be illegal grading. He then referred the grading violations he observed to the City’s NCCD for further investigation and enforcement. NCCD Officer Eric Picou tried to obtain permission from the Morrows to inspect the property, but they denied him access. Finally, on June 3 and 4, 2010, the NCCD issued two Civil Penalty Notices, one for the duplex and one for the vacant lot, for violations that could be observed from the public right of way. In this case, defendant the City of San Diego argued that no evidence existed to support Plaintiffs Floyd and Marlene Morrows’ theory that they were subject to disparate treatment in violation of the Equal Protection Clause of the U.S. Constitution.

The Morrows first alleged that the City only prosecuted residents in low to moderate income neighborhoods pursuant to the City’s “CDBG Proactive Code Enforcement Project” as part of the 2009 Memorandum of Understanding (“MOU”). However, according to Mr. Richmond’s uncontradicted declaration, the Morrows were targeted when he noticed a grading violation on their vacant lot on August 1, 2007, well before the MOU was signed. Although the actual citations were not issued until after the MOU was signed, the beginning of the investigation was not the proactive enforcement targeted in the MOU. Accordingly, the court held that Morrows could not claim they were denied equal protection by enforcement of the MOU.

Additionally, the court found that the proactive enforcement program targeted neighborhoods that had a higher incidence of zoning violations and a lower incidence of zoning complaints because of the high number of rental units in the areas. The program targeting these areas for increased enforcement had a rational relationship to the state’s interest in maintaining these deteriorating neighborhoods. Thus, the Morrows’ equal protection claim also failed. Lastly, as to the Morrows’ claim that the zoning ordinances were selectively enforced against them, the court found that the Morrows failed to show that other similarly situated individuals were not prosecuted, and failed to present any evidence of a “discriminatory purpose.” Accordingly, the City’s Motion for Summary Judgment was granted.

Morrow v City of San Diego, 2017 WL 3131547 (SD CA 7/21/2017)

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