UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 

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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 

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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 

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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 

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with respect to traffic concerns, public opposition, and hardline 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 coapplicant 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 

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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 

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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 

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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 

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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 

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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.