                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-1633


DAVID J. SOWERS,

                   Plaintiff - Appellant,

           v.

POWHATAN COUNTY, VIRGINIA; BOARD OF SUPERVISORS OF POWHATAN
COUNTY, VIRGINIA,

                 Defendants – Appellees,

           and

ROBERT R. COSBY,

                 Party-in-Interest.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.   Robert E. Payne, Senior
District Judge. (3:06-cv-00754-REP)


Argued:   September 24, 2009                 Decided:   October 15, 2009


Before NIEMEYER and MICHAEL, Circuit Judges, and James P. JONES,
Chief United States District Judge for the Western District of
Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Patrick Michael McSweeney, MCSWEENEY, CRUMP, CHILDRESS &
TEMPLE, PC, Richmond, Virginia, for Appellant.        Robert A.
Dybing,   THOMPSON  MCMULLAN,   PC,   Richmond,  Virginia,   for
Appellees. ON BRIEF: Wesley G. Russell, Jr., MCSWEENEY, CRUMP,
CHILDRESS & TEMPLE, PC, Richmond, Virginia, for Appellant.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            This       appeal        involves          the     denial        of     a     rezoning

application      filed        by    David        J.    Sowers        in    Powhatan        County,

Virginia.       Sowers contends that the Powhatan County Board of

Supervisors (the Board) denied him equal protection of the law

by   departing     from       its    typical          application         procedures          and   by

initially       denying       his     application.                  The    Board        ultimately

approved    Sowers’s       application            after       he    filed       suit     in    state

court.     Sowers later sued the Board in district court under 28

U.S.C. § 1983, claiming that his application would have been

approved    sooner,       and       that    he       would    have        avoided       litigation

expenses, had the Board not violated his constitutional rights.

The district court granted summary judgment to the Board.                                           We

affirm because Sowers does not present a genuine factual dispute

over     whether    he        was    similarly           situated          to     other       zoning

applicants,      and     he    does    not        show       that    the     Board       lacked      a

conceivable rational basis for its differential treatment of his

application.

                                                 I.

            Sowers is a Virginia land developer who applied to the

Board in June 2004 for the rezoning of a 250.9-acre tract of

land     from    agricultural          to    residential.                  As     part    of        his

application Sowers tendered a voluntary cash proffer of $3,530

per lot to offset the impact costs of his proposed subdivision.

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This amount was the Board’s suggested minimum at the time.                           A

few weeks after Sowers filed his application, the Board raised

its suggested proffer amount to $6,395 per lot.                     Sowers refused

official requests that he increase his cash proffer.                          He was

entitled    to     refuse;     under    Virginia    law,     cash    proffers       are

voluntary     and    zoning      decisions       cannot     be     conditioned       on

proffers.     Gregory v. Bd. of Supervisors, 514 S.E.2d 350, 353

(Va. 1999).

            In Virginia a rezoning application is reviewed by the

local     planning     commission        before     it      is      presented       for

consideration by the local governing body.                 Sowers’s application

was first reviewed by the Powhatan County Planning Commission

(the    Planning     Commission    or    Commission)        in    September     2004.

Based on concerns voiced by residents and the Commission, Sowers

revised his non-cash proffers and received a deferral of his

public hearing before the Commission.               At the hearing in October

2004    Sowers     submitted    further       amended     non-cash    proffers       to

address    impact    concerns.         Although    he    submitted     his    amended

proffers after the deadline, the Commission voted to consider

them.     Several citizens spoke at the hearing in opposition to

Sowers’s    proposed    subdivision,          articulating       concerns    such    as

increased traffic and the loss of the area’s rural character.

Many residents also sent letters in opposition.                      Additionally,



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the Virginia Department of Transportation (VDOT) raised concerns

regarding the traffic consequences of Sowers’s proposal.

               The   Planning    Commission            gave   Sowers    the   option     of

another deferral to address these concerns.                       Rather than opt for

a deferral, Sowers requested that his application be sent to the

Board for a vote.             The Commission director testified in his

deposition      that   this     choice    was       “unusual.”         J.A.   670.     The

director characterized Sowers as a “tough negotiator” compared

to other applicants, adding that although Sowers was not totally

uncooperative, he was unlike other applicants because he was

less willing to negotiate.

               The Planning Commission sent Sowers’s application to

the Board with the recommendation that it be denied as it then

stood.     Sowers again revised his non-cash proffers to address

concerns.       However, because he did not submit the proffers at

least    ten    days   before    the     Board’s        November   17,     2004,     public

hearing,       the   Board    voted    not        to   consider    them.       This    was

admittedly      exceptional;      in     no       other   instance      had   the    Board

refused to accept late proffers.                       Two days before the public

hearing, the Planning Commission recommended to the Board that

it either (1) remand Sowers’s application to the Commission for

consideration of remaining concerns or (2) defer his hearing.

Despite the Commission’s recommendation, the Board refused to



                                              5
remand or defer.         Like the late proffer rejection, the Board’s

refusal was exceptional.

            In the meantime, one Board member, Russell Holland,

had recused himself from voting on Sowers’s application because

he had been elected on a no-growth platform and owned 56 acres

of the tract for which Sowers sought rezoning.                          (Sowers had

contracted to buy the 56 acres from Holland.)                      Several citizens

expressed   concern      that   Holland’s        interest    precluded        him   from

representing their interests.             Holland’s name even appeared as a

joint applicant on Sowers’s application, though Sowers contends

that this was an error.

            The   Board    denied      Sowers’s       rezoning     application.     The

Board member who made the motion to deny gave as his reasons the

“unusual    circumstances       of    this     case    and   the    refusal    of   the

applicant    [Sowers]      to        initially        work   with     the     Planning

Commission.”      J.A. 436.        Sowers challenged the denial by suing

the Board in state court.            In January 2006, while his state suit

was pending, the Board voted to reconsider his application.                           It

approved his application in May 2006, and Sowers voluntarily

dismissed his state suit.

            Sowers then sued the Board in the Eastern District of

Virginia    under   42    U.S.C.      §   1983,      alleging    that   the    Board’s

unprecedented refusal to consider his late non-cash proffers,

defer   consideration,      or       remand     to     the   Planning       Commission

                                           6
amounted      to    an    Equal       Protection           violation.            Although     his

application was ultimately approved, he argued that it would

have been approved earlier had the Board considered the revised

proffers and deferred or remanded his application.                                    The Board

concedes that the only ways in which Sowers refused to work with

the Planning Commission were his refusal to increase his cash

proffer and his failure to address VDOT’s traffic concerns.                                   The

district     court       concluded,        however,        that    the    record       evidenced

several      plausible      reasons        for       the    Board    to       treat     Sowers’s

application        differently,        both      procedurally        and       substantively,

and   that    Sowers      failed      to    negate         these    conceivable         rational

bases   for     the      County’s      differential           treatment.            The     court

granted summary judgment to the Board, concluding that Sowers

(1) did not raise a genuine factual dispute over whether he was

similarly situated to other zoning applicants and (2) did not

show that the Board lacked a rational basis for its different

treatment of his application.                 Sowers appeals.



                                              II.

              We    review      the    district            court’s       grant    of    summary

judgment de novo, “viewing the facts in the light most favorable

to,   and    drawing      all   reasonable           inferences          in   favor     of,   the

nonmoving party.”          E.E.O.C. v. Cent. Wholesalers, Inc., 573 F.3d

167, 174 (4th Cir. 2009).                  Summary judgment is appropriate only

                                                 7
if “the pleadings, the discovery and disclosure materials on

file, and any affidavits show that there is no genuine issue as

to any material fact and that the movant is entitled to judgment

as a matter of law.”          Fed. R. Civ. P. 56(c).

              Sowers premises his Equal Protection claim on being a

“class     of    one,”    which    requires    him    to    show    that     he   was

“intentionally          treated     differently      from     others       similarly

situated and that there is no rational basis for the difference

in treatment.”          Vill. of Willowbrook v. Olech, 528 U.S. 562, 564

(2000).         The summary judgment record indisputably establishes

that Sowers did not make either showing.

                                         A.

              Sowers did not raise a genuine factual dispute over

whether he was similarly situated to other zoning applicants in

Powhatan County.           The County Attorney observed that Sowers’s

proposal      was     “extremely    controversial,”        that    it   encountered

“more and better organized opposition . . . than . . . most

other rezoning or conditional use permit applications,” and that

the opposition “was not just limited to citizens living adjacent

to the affected area.”            J.A. 495.   Even when it is accepted that

some     of     the   other   applications     that    Sowers      points    to   as

comparable       also    raised    traffic    concerns      and    aroused    public

opposition, the record still indisputably demonstrates that the

public opposition to Sowers’s application was so fervent as to

                                         8
render    him     differently         situated.              Dozens     of    citizens       sent

letters     protesting           Sowers’s         proposal,       and        many    spoke     in

opposition at the hearings before the Planning Commission and

the Board.

            Moreover,           Sowers’s          proposed       subdivision         presented

unique    traffic      concerns,         particularly           regarding       access.       All

traffic entering and exiting the subdivision would pass through

an    existing    subdivision,           creating        a    “piggyback”       or     “funnel”

traffic effect.            J.A. 403-04.               Sowers maintains that another

application       (the     McClure       application)           also     presented       funnel

traffic concerns.           Even if this is true, the record shows that

the     funnel    concerns           were     especially         acute        with     Sowers’s

application.

            Sowers         was       also        differently       situated          from     the

standpoint       of   interpersonal              relations,      as     evidenced       by    the

Planning Commission director’s characterization of Sowers as a

“tough negotiator” who was unlike any other applicants with whom

he had ever dealt.              Further, Sowers differentiated himself from

other    applicants        by    skirting         typical       procedures      through       his

request that his application be submitted directly to the Board,

thereby      removing           it     from           initial     Planning           Commission

consideration.

            Even      if   we     were      to    give    Sowers      the     benefit    of    an

inference that other zoning applications were similar to his

                                                  9
with respect to traffic concerns, public opposition, and hard-

line negotiators, his application was materially different from

others due to the recusal of Board member Holland.                    The recusal

created a unique situation in which the residents most directly

impacted    by     Sowers’s    proposal         were   deprived      of    expected

representation.      Even if Holland was mistakenly listed as a co-

applicant with Sowers, the disclosure that a Board member who

had run on a no-growth platform had a vested interest in a

rezoning application for residential expansion is enough to show

that Sowers was not similarly situated to other applicants.

                                         B.

            Sowers’s       Equal   Protection          claim    fails       on   an

alternative      ground:      he   did        not   negate   every    conceivable

rational basis for the Board’s differential treatment.                     While it

is undisputed that the Board deviated from past practice when it

refused to defer, remand, or consider late proffers in Sowers’s

application, this is not enough to establish an Equal Protection

violation when no suspect classification or fundamental right is

at issue.        Equal Protection is “not a license for courts to

judge the wisdom, fairness, or logic of legislative choices.”

F.C.C. v. Beach Commc’ns, 508 U.S. 307, 313 (1993).                       “In areas

of social and economic policy, a statutory classification that

neither proceeds along suspect lines nor infringes fundamental

constitutional rights must be upheld against equal protection

                                         10
challenge if there is any reasonably conceivable state of facts

that could provide a rational basis for the classification.”

Id.

               Sowers urges that because no statutory classification

is at issue here, and because zoning decisions are adjudicative

rather    than       general    and   are    circumscribed      by    state      law,    the

rational       basis     inquiry      does     not      apply   with       its    typical

deferential force.             This Court, however, applies the rational

basis test to local permit and zoning decisions.                               Tri-County

Paving, Inc. v. Ashe County, 281 F.3d 430, 438-39 (4th Cir.

2002); Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 820

(4th Cir. 1995).           “Whether a statute or administrative action

employs a classification explicitly or implicitly,” the Equal

Protection analysis is the same.                  Sylvia, 48 F.3d at 820.

               The     “vast     majority         of    governmental           action    --

especially in matters of local economics and social welfare,

where    state       governments      exercise      a   plenary      police      power   --

enjoys a ‘strong presumption of validity’ and must be sustained

against    a     constitutional         challenge       ‘so   long    as   it    bears     a

rational    relation       to    some    legitimate       end.’”         Van    Der   Linde

Hous., Inc. v. Rivanna Solid Waste Auth., 507 F.3d 290, 293 (4th

Cir.    2007)    (emphasis      in    original).         We   conclude     that       Sowers

failed to meet the “heavy burden of negating every conceivable

basis     which        might     reasonably         support”       the     differential

                                             11
treatment.      Id.    It is not for this court to assess the “wisdom,

fairness, or logic (or lack thereof)” of the Board’s conduct.

Id. at 294.          “The ‘rational’ aspect of rational basis review

refers to a constitutionally minimal level of rationality; it is

not    an    invitation      to        scrutinize      either       the    instrumental

rationality of the chosen means” nor the “normative rationality

of the chosen governmental purpose.”                  Id. at 295.

              Sowers argues that if state law bars certain grounds

for a decision, then a decision based on those impermissible

grounds      necessarily     cannot       pass      muster   under    rational      basis

review.      Our precedent makes clear that state law is independent

from a rational basis inquiry.                A “violation of state law is not

tantamount to a violation of a federal right.”                       Sunrise Corp. v.

City    of   Myrtle    Beach,      420    F.3d      322,     328    (4th   Cir.    2005).

“[D]isparate     treatment,        even    if    the     product     of    erroneous      or

illegal      state    action,     is    not     enough      by   itself    to     state   a

constitutional claim.”            Sylvia, 48 F.3d at 825.             Therefore, even

if the Board’s differential treatment was grounded in part on

Sowers’s     failure    to   increase         his    cash    proffer,      this   reason,

though illegal under state law, does not necessarily yield an

Equal Protection violation.

              In this case there was no Equal Protection violation

because there were several other conceivable rational reasons

for    the   Board’s    decision.          Rational         basis    review     does   not

                                           12
require us to determine the Board’s actual motivation.                                    Beach

Commc’ns, 508 U.S. at 315.                   We need only decide whether the

Board had “plausible reasons” for its different treatment of

Sowers’s application.           Id. at 313.          The deference to democratic

process      that    undergirds       rational     basis       review      means    that     we

consider only whether the Board “reasonably could have believed

that    [its]       action    was     rationally      related         to    a    legitimate

governmental interest.”             Tri-County Paving, 281 F.3d at 439.

              Because        Sowers     is        unable       to     “negative           every

conceivable basis which might support” the Board’s action, he

cannot prevail on his Equal Protection claim as a matter of law.

Beach Commc’ns, 508 U.S. at 315 (emphasis added).                               His initial

request that his application go to the Board for a vote rather

than through the Planning Commission provided a rational basis

by itself for the Board to reject his later request for more

time and the opportunity to submit further revisions.                               Sowers’s

own procedural deviation, combined with his tough negotiating

stance, could also have led the Board reasonably to believe that

further work with Sowers would require too much time and effort

and prove fruitless in the end.                   The vehement public opposition

to     his   application,       the     unique      traffic         concerns       that     his

proposal      raised,    and    the    recusal       of    a   Board       member    with     a

perceived self-interest also clearly provided rational bases for

the    Board’s      action.     Even     if   the     only      way   (other       than     his

                                             13
refusal to increase his cash proffer) in which Sowers refused to

work with the Planning Commission was his failure to address

VDOT’s traffic concerns -- concerns which Sowers maintains he

did address in his late-filed proffers -- the Board could still

have reasonably determined that re-engaging with Sowers would

not have been productive.

            Contrary       to     Sowers’s       contention,     public      opposition

does    furnish    a    rational     basis       for   differential     treatment     in

zoning decisions. Indeed, the very purpose of the deferential

rational basis inquiry is to respect the democratic process,

albeit with an eye to whether purely odious classifications are

at work.     The cases that Sowers cites are inapplicable.                     In City

of Cleburne v. Cleburne Living Center, 473 U.S. 432, 447 (1985),

the Supreme Court struck down a zoning ordinance that prohibited

the operation of a group home for mentally retarded individuals

and observed that a “bare . . . desire to harm a politically

unpopular     group”       is      not     a     legitimate      state       objective.

Similarly, in Romer v. Evans, 517 U.S. 620, 633 (1996), the

Court    invalidated        a      state       constitutional         amendment     that

“identifie[d]      persons      by   a   single        trait”   (homosexuality)      and

“then denie[d] them protection across the board.”                            The Court

reiterated that the “bare . . . desire to harm” an unpopular

group is not a legitimate interest.                     Id. at 634.      The public’s

opposition    to       Sowers’s    zoning      application      did    not   stem   from

                                            14
naked animosity or baseless fear, but from genuine concerns over

traffic, safety, and the loss of rural surroundings.                   His was

not a case of “mere negative attitudes . . . unsubstantiated by

factors which are properly cognizable in a zoning proceeding.”

Cleburne, 473 U.S. at 448.

                                         C.

             For the foregoing reasons, we conclude that Sowers has

not raised a genuine issue of material fact as to whether he was

similarly situated to other zoning applicants.               Nor has he shown

that   the   Board   lacked    a    conceivable   rational    basis    for   its

different     treatment   of       his   application.    Accordingly,        the

judgment of the district court is

                                                                      AFFIRMED.




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