Erickson v. County of Nevada Ex Rel. Board of Supervisors

MEMORANDUM

Juliet Erickson and Peter Lockyer appeal from the district court’s grant of the County of Nevada’s motion to dismiss. Erickson and Lockyer claim that the County of Nevada violated their rights under the Equal Protection Clause by failing to apply the County’s “Visually Important Ridgelines and Viewsheds” (“VTR”) land use code to both their project and a cell tower project proposed by Complete Wireless Consulting, Inc. (“CWC”) on adjacent property.

Assuming without deciding that the County should have applied the VIR code to CWC’s cell tower project, the homeowners have nevertheless failed to raise a valid equal protection claim. Parties allegedly treated differently in violation of the Equal Protection Clause are similarly situated only when they are “arguably indistinguishable.” See Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 601 , 128 S.Ct. 2146 , 170 L.Ed.2d 975 (2008) (quotation marks and citation omitted); see also Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 942, 945 (9th Cir.2004) (holding that stream polluters were not similarly situated despite at least one shared characteristic), overruled on other grounds by Lingle v. Chevron U.S.A. Inc., 544 U.S.…