HAIGHT, Senior District Judge:
Plaintiff Margaret R. Pappas, owner of a parcel of land in the Town of Enfield, brought this action against the Town of Enfield, Town of Enfield Planning and Zoning Commission ("Enfield's PZC" or "PZC"), and four Commissioners, Anthony DiPace, Jeffrey D. Cooper, James A. Hickey, Jr., and Karen A. Weseliza, in their official and individual capacities.
Pappas alleges that a subdivision application she submitted to Enfield's PZC was improperly denied in violation of her Fifth and Fourteenth Amendment rights of due process, equal protection, and against taking of property without just compensation, enforceable under 42 U.S.C. § 1983. She filed this federal action subsequent to a Connecticut Superior Court ruling in Pappas' favor that reversed the PZC's decision, holding that the denial of Pappas' subdivision application was "unreasonable," "arbitrary," an "abuse of discretion," and "illegal" under Connecticut Law. Pappas v. Enfield Planning & Zoning Comm'n, No. HHDCV064021918, 2006 WL 3360480 (Conn.Super.Ct. Nov. 3, 2006). Following that ruling, Enfield's PZC granted plaintiff's subdivision application as proposed.
Plaintiff brought the present action in this Court for money damages and other relief under the United States Constitution and the Civil Rights Act of 1871. Defendants previously filed a Motion to Dismiss, which this Court granted as to plaintiff's due process and takings claims, and denied as to her equal protection claim. 2010 WL 466009 (Feb. 3, 2010), rehearing denied, 2010 WL 2860728 (July 20, 2010). Following discovery, Defendants now move for summary judgment on plaintiff's remaining claim, which alleges a violation of the Equal Protection Clause of the Constitution. For the reasons that follow, the Court grants Defendants' motion for summary judgment and dismisses the remaining claim in the complaint.
This Court's subject matter jurisdiction depends on "federal question" jurisdiction
Venue is proper in this district pursuant to 28 U.S.C. § 1391. Section 1391(b) provides that "[a] civil action wherein jurisdiction is not founded solely on diversity of citizenship" may only be brought in:
28 U.S.C. § 1391(b). Since all the defendants reside in this district and all the events and omissions give rise to the plaintiff's claim occurred in this district, thereby fulfilling (1) and (2) under Section 1391(b), when either alone would suffice, venue is proper in this judicial district.
The facts established by the record are as follows. Conclusory or argumentative allegations are disregarded.
Pappas is the owner of an approximately 21.83 acre parcel of land located north of Bridge Lane in the Town of Enfield, Connecticut, known as Town of Enfield Assessor's Map 19, Lot 10 (herein "the property"). Pl.'s Local Rule 56.2 Statement
On or about September 21, 2005, plaintiff applied to the PZC for approval of a resubdivision plan that would establish fifteen (15) single-family residential building lots on the property, known as "Riverview Meadows Section II." Compl. ¶ 15; Pl. 56.2 Stmt. ¶ 9. The application proposed, among other things, to: 1) eliminate the current cul-de-sac at the then end of Meetinghouse Lane and extend the road west to a permanent cul-de-sac near the western border of the property, 2) establish four building lots on the extension of Meetinghouse Lane, 3) construct a new road, Rivercliff Lane, which would extend north from Bridge Lane in the same way as Meetinghouse Lane, and 4) create 11 additional lots located either on the cul-de-sac portion of Rivercliff Lane or the loop road established by the intersection of Rivercliff Lane and Meetinghouse Lane. Pl. 56.2 Stmt. ¶ 10. The plans were reviewed by plaintiff's licensed civil engineer, Timothy A. Coon, P.E., of J.R. Russo & Associates, including for compliance with applicable requirements of the Subdivision and Zoning Regulations.
In order to provide an additional means of ingress and egress to the subdivision area, the application proposed a new road, Rivercliff Lane, intersecting Bridge Lane at a near right angle similar to Meeting-house Lane. Def.'s Local Rule 56.1 Statement (herein "Def. 56.1 Stmt.") ¶ 59; Pl. 56.2 Stmt. ¶¶ 3, 12. The new road would require demolishing the existing single family residential building on the lot of 44 Bridge Lane, which the plaintiff acquired in a straw purchase, and converting 42 and 46 Bridge Lane into corner lots. Def. 56.1 Stmt. ¶¶ 57, 59-62 & 74; Pl. 56.2 Stmt. ¶ 13. The plaintiff proposed to give the "leftover" land from 44 Bridge Lane after the new road was installed to the adjacent property owners at 42 and 46 Bridge Lane.
On the same date as the filing of the application, on September 21, 2005, the Enfield Wetlands Agent delivered a determination letter to the plaintiff that the Enfield Inland Wetland and Water Courses Agency had issued a jurisdiction ruling that no Inlands Wetlands or Water Courses permit was necessary for activities associated with the proposed subdivision. Pl. 56.2 Stmt. ¶ 14.
Plaintiff's application was officially received by Enfield's PZC at its October 6, 2005 meeting and was assigned the number PH#2526. Pl. 56.2 Stmt. ¶¶ 15-16. The PZC conducted a series of four public hearings on the application, on November 3, 2005, November 17, 2005, December 1,
Prior to the November 3, 2005 hearing, four letters were received from area residents opposing the plaintiff's proposed subdivision over traffic safety, privacy, school crowdedness, and drainage and sewage concerns. Def. 56.1 Stmt.¶¶ 63-70, Ex. GG. Two letters came from homeowners with properties next to the new proposed road. Id. at ¶¶ 64-70. Ms. Jodi Ann DeFord, who resided at 42 Bridge Lane, wrote in her letter that "Bridge Lane can not accommodate more housing in this area ... traffic is already at its capacity[;] ... the side drains and sewers [as well as] ... [t]he schools are all at capacity." Def. 56.1 Stmt., Ex. GG. Ms. DeFord then noted her grave personal concerns for her daughters' safety and family's privacy, and over additional taxes and costs associated with the extra 20 feet to be given to her by Pappas. Id. Ms. Michele D. White, who resided at 41 Bridge Lane, across from the new proposed roadway, at the end of the "T" intersection, also wrote to the Town on similar concerns regarding Pappas' subdivision. Def. 56.1 Stmt.¶¶ 68-70. Ms. White noted that the land upon which the houses were to be built was wetlands and that the houses to be put up "will" take in water. Id. at ¶ 70.
There were historic reasons for the public and the PZC's significant concerns over flooding. In October of 2005, major flooding occurred in the Town of Enfield that required federal disaster assistance and inflicted extensive damages to both public and private properties — "total revised public damages [was] equal to $754,977, the `greatest per capita assessment among Hartford County municipalities.'" Def. 56.1 Stmt.¶¶ 11, 18 & 21-22. Many property owners sustained extensive flood damage, but did not have flood insurance to cover their losses because their properties were not located within a FEMA-designated flood plain. Id. at ¶ 18. At the October 17, 2005 town council meeting, numerous members of the public complained that they had been told that they were not at risk of flooding based upon the fact that they were not within the 100-year flood zone established by FEMA but nonetheless had experienced flooding. Id. at ¶ 19. A large portion of the flooding damage in Enfield during October of 2005 occurred in the Beaman Brook Watershed, in which the plaintiff's subdivision land is located. Id. at ¶ 23.
The plaintiff's application was also deliberated against the backdrop of the flooding of Grand View Subdivision (# 2151), a subdivision whose problems plagued Enfield's PZC and the Town Council during 2003 and 2004. Id. at ¶ 27. Grand View, a 16-lot subdivision approved on February 3, 2000, had significant flooding and drainage issues, despite not being located in a 100-year or 500-year flood zone, or a FEMA designated flood hazard zone. Id. at ¶¶ 28, 31. Similar in lot number to the plaintiff's proposed subdivision, Grand View also utilized the same engineering firm for engineering
Id. at ¶¶ 33-34. The subsequent flooding caused the commissioners to question the credibility of the Assistant Town Engineer and J.R. Russo & Associates, although the developer's failure to follow the grading plan established under the approved subdivision plans may have contributed, at least in part, to the flooding problems. Pl. 56.2 Stmt. ¶¶ 151-52. Thereafter, the commissioners concluded that they could not fully rely upon the opinions of these experts with regard to drainage issues, since proposed subdivisions approved by Mr. Cabibbo and/or J.R. Russo & Associates might still have serious flooding problems. Def. 56.1 Stmt.¶ 45.
The public hearing on Pappas' application spanned four sessions, with extensive questioning by the PZC, commentary by the public, and testimony by the plaintiff's civil and traffic engineers. Much of the hearing revolved around concerns over flooding and drainage and potential issues surrounding the proposed new road. At the November 3, 2005 hearing, Chairman Commissioner DiPace, who eventually voted against the application, and thus a defendant in this case, stated that he was concerned about the potential hardship for the abutting property owners at 42 and 46 Bridge Lane. Id. at ¶ 80. Echoing Commissioner DiPace, Ms. DeFord spoke in opposition of Pappas' application, stating that she bought 42 Bridge Lane, after "[driving] it for three years," for its privacy and safety, and for the fact it is not "a corner lot." Id. at ¶ 85. She was concerned that plaintiff's proposed new road would lead to loss of her privacy, since "her deck, hot tub, pool and shed were in her back yard," and threaten her children's safety with "people driving on the side of the lot." Id. at ¶¶ 83, 85. Ms. DeFord also noted that even with "two sump pumps" to combat flooding problems, "her house had just flooded." Id. at ¶ 84. Pete Kenney of 45 Bridge Lane complained about problems with storm drains on Bridge Lane, which for years were backing up, flooding the houses. Id. at ¶ 86. He believed that adding to an already antiquated system would be problematic; the same would hold true with the proposed subdivision taxing the road system, exacerbating traffic issues. Id. Michele White of 41 Bridge Lane expressed concerns over reduced home value and traffic safety, which in light of three accidents in the area recently, might worsen from cars on the new street coming directly toward her house. Id. at ¶ 88.
Three additional members of the public offered their comments. Id. at ¶¶ 87-91. First, Nancy Talleon of 4 Mulberry Lane, a cul-de-sac off of Bridge Lane, complained about flooding at her property despite three yard drains in her backyard; two weeks previously, she had 3 inches of water in her cellar. Id. at ¶ 87. Then,
A number of PZC members expressed their concerns over flooding and posed related questions to the plaintiff's licensed civil engineer, Timothy A. Coon, P.E., of J.R. Russo & Associates. Pl. 56.2 Stmt. ¶ 17. Commissioner Egan, who didn't vote on plaintiff's application because his term expired at the end of 2005, noted that the land is agricultural by nature "because it floods and it was close to the river and the water table is high there." Def. 56.1 Stmt. ¶¶ 93, 95. He questioned Mr. Coon's conclusion that the proposed plan would decrease flow and its underlying assumptions: "Everybody comes before us and says they are decreasing flow. Everybody.... I didn't go through your assumptions but they are assumptions." Then, he asked about the test pits and the need to use fill to raise up the houses. Id. After addressing the test pits and the seasonal annual high water table, Mr. Coon presented the plan to use footing drains connected to the drainage system to alleviate any potential wet basements, in addition to raising houses. Pl. 56.2 Stmt. ¶ 26; Def. 56.1 Stmt.¶ 100. Commissioner Cooper, one of the individual defendants, inquired as to whether the cellar floors were going to be below the water table; Mr. Coon stated that some of them would be, but pointed to footing drains as a cure. Def. 56.1 Stmt. at ¶ 102. When Commissioners Cooper and Duren asked what would occur if the footing drains got clogged or collapsed, Mr. Coon responded: "[i]f that happens then you get a wet cellar and you try some other means or you dig down and you clean them out ... all I can say is [it's] standard practice." Id. at ¶ 103. Commissioner Duren requested that the Town Planner obtain a hydraulics study of the area so that the whole watershed could be reviewed; Commissioner Egan seconded the request. Id. at ¶ 105.
Plaintiff also presented her licensed traffic engineer, Steven Mitchell, P.E. of F.A. Hesketh & Associates, who noted that the Subdivision Regulations do not require a traffic study be performed for a subdivision of this size. Pl. 56.2 Stmt. ¶ 30. Mr. Mitchell determined that 88 vehicle trips occurred on Bridge Lane during the 4-hour morning peak traffic period and 105 trips in the 4-hour afternoon peak traffic period. Id. at ¶ 34. Based on established standards, the proposed residential homes would add 19 trips in the morning period and 18 trips in the afternoon period. Id. at ¶ 35. Mr. Mitchell informed the Commission that traffic generated from the proposed subdivision would not result in any traffic safety and operation issues, congestion or delays. Id. at ¶ 37.
At the second hearing, Caroline Camay of 46 Bridge Lane, who lived in her house for 46 years, echoed her neighbors' earlier comments, citing issues with water in her current residence and concerns over traffic and having a street next to her house. Def. 56.1 Stmt.¶ 107. Her son, Ron Camay, noted as an example of the area's wetness, a prior attempt to put in a cellar "was a disaster. There was nothing but water." Id. at ¶ 108. Peter Kenney of 45 Bridge Lane then pointed out the historic "problems with the sewers backing up into people's homes on Bridge Lane"; he then
The discussion at the third hearing began with Commissioner DiPace's question regarding whether the entrance of the new road would create any non-conformities in relation to existing structures, requesting an opinion of counsel. Def. 56.1 Stmt. ¶ 111; Pl. 56.2 Stmt. ¶ 50. Plaintiff's attorney, Kenneth R. Slater, Jr., responded, conceding that "there were some existing structure that would be within the minimum setback," but deferring to plaintiff's engineer, Mr. Coons, for a substantive explanation. Def. 56.1 Stmt.¶ 111. Mr. Coons explained that the plans have been revised to bring in the road on a small angle to conform to the minimum 40 foot front yard setback between the proposed right-of-way line and the existing structures. Id. at ¶ 112. The Town Attorney indicated he doubted that the original design would result in a zoning nonconformity, but also noted that the issue was moot based on the modifications. Pl. 56.2 Stmt. ¶ 52.
The floor was then opened to a deluge of public comments on flooding and drainage issues, including discussions on repercussions and recourse should these concerns materialize at Pappas' development. Michele White of 41 Bridge Lane stated that there are not only problems with drainage on the street, evidenced by the puddles that "sit[] there for days and days," but these problems have also affected her home, costing her "tens of thousands of dollars to replace many things in [her] house."
In response to the PZC's and the public's flooding concerns, Mr. Coon presented the stormwater management system of the proposed subdivision, in form of a drainage map. Pl. 56.2 Stmt. ¶¶ 53-54. The map depicted the four separate areas of drainage on and near the land to be subdivided. Id. at ¶ 55. Mr. Coon informed the PZC that the existing Bridge Lane municipal stormwater conditions would be improved by the subdivision, because first, three new catch basins would increase the speed in which water will drain into the Connecticut River, and second, the diversion of stormwater
Mr. Coon received an email from the Town Engineer requesting plaintiff to perform an analysis on the impact of a 50-year storm on the proposed subdivision. Id. at ¶ 46. Enfield's Subdivision Regulations require demonstration of adequate stormwater management during a 25-year storm event, but allow the Town to require the applicant to submit a plan capable of handling a 50-year storm.
Several commissioners posed follow-up questions, centered on Pappas' proposed water management system and whether the land is "subject to flooding,"
Commissioner Weseliza then followed: "Without the road improvements, is this land subject to flooding? Would we say that it has a high water table subject to flooding?"; Mr. Coon responded: "It is not located within the flood hazard zone." Id. at ¶ 127. Commissioner Weseliza noted that the site "kind of looked flooded" when she visited on the day of the hearing, and she observed that a significant portion of the subdivision land was covered in water, including frozen water near the intersection of Meetinghouse Lane and Bridge
Basing his concerns in part on observations of large areas of ponding and puddling on multiple occasions on the subject property during the pendency of the application, Commissioner DiPace also probed Mr. Coons on the subdivision land's past floods and its potential for more flooding. Def. 56.1 Stmt. ¶¶ 131, 142. In response, Mr. Coons stated: "There may be ponding of water but this particular land is not within any area that is regulated as a 50-year or 100-year flood zone." Id. at ¶ 131. The subdivision regulations, however, do not define "land subject to flooding" as land which falls within a 100-year flood zone or as land located within the flood hazard zone. Id. at ¶ 140.
When the floor opened to public comments, several residents spoke against plaintiff's application, reiterating their earlier concerns over flooding and traffic safety. Thomas Tyler, an attorney who lived in the corner lot house 18 Bridge Lane for approximately 30 years, noted that vehicles coming around the corner have "gone on [his] property, ... knocked down [his] basketball pole, ... hit two of [his] vehicles and knocked one of them into the garage. Fortunately, this occurred at night so that no one was out in the yard at the time.... [This happened] 3 or 4 times over the last 15 or 20 years." Id. at ¶ 133. He was not only concerned with traffic safety over the two new corner lots with less than 100-foot setback, but also with the effects on general health, welfare and safety of the "strip[s] of spite land" separating the proposed road and the neighboring corner lots. Id. He was worried about the impact on Bridge Lane's "long established residential nature in character that extends back 80 years," which many of the residents moved there and built up their homes in reliance. Id. at ¶ 135. Mr. Tyler then presented copies of deeds for 42, 44 and 46 Bridge Lane claiming that they contained private deed restrictions therein limiting use to residential use. Id. at ¶ 134. Afterwards, Kathy Rothchild, the daughter of the owner of 46 Bridge Lane, confirmed the earlier noted observations of pooling of water on the plaintiff's property: "[T]he little cul-de-sac ... was considerably under water yesterday as was out in the field.... I went there about 5 or 6 hours [after heavy rain stopped] ... there was water standing everywhere." Id. at ¶ 136. While Meetinghouse Lane
On February 16, 2006, the PZC rendered its decision on plaintiff's resubdivision application. Pl. 56.2 Stmt. ¶ 79. The PZC first considered the issue of the sidewalk requirement. Commissioner Duren made a motion to waive the requirement, but the motion failed by a vote of 7 to 0, with Commissioner Duren conceding that "sidewalks are needed in a development."
The PZC next deliberated on the resubdivision approval. Commissioner Duren stated that although he agreed with some concerns of the public, he finds that the plaintiff's application "have met or exceeded the requirements of the Subdivision Regulations," sufficient to justify approval. Def. 56.1 Stmt. Ex. MM, p. 9. Chairman DiPace noted he has "looked long and hard" at the application, but cannot overlook a number of issues that were raised at the public hearings: tearing down the house would damage a neighborhood (e.g., aesthetics, privacy, traffic safety, and lower housing prices for the new corner lots) and the high water table and close proximity to the Connecticut River would pose a flooding risk. Id. Chairman DiPace concluded that "I don't think 1 agree that you can put fifteen houses in there and not adversely affect the rest of the neighborhood." Id. The PZC denied Pappas' application: 3 members, Commissioners Ballard, Duren, and Jones, voted in favor of approval and 4 members, Commissioners DiPace, Cooper, Hickey, and Weseliza, voted against. Id.
The four commissioners who voted against Pappas' application, now defendants in this case, summarized their rationale for denying the application subsequently in their depositions. Chairman DiPace's reasons for denial were drainage concerns, impacts to the neighborhood with the demolition of a house, creation of two corner lots and traffic safety issues, and neighborhood aesthetics relating to privacy. Pl. 56.2 Stmt. ¶ 91. Commissioner Cooper voted to deny the application because of water table issues, downstream flooding issues, off-site impacts of water, and the creation of corner lots. Id. at ¶ 92. Commissioner Hickey denied the application for the same reasons as those identified by Chairman DiPace at the February 16, 2006 meeting, and because he believes the creation of a street off Bridge Lane would negatively impact the adjoining properties and harmony with the neighborhood characteristics. Id. at ¶ 93. Commissioner Weseliza justified her vote on the grounds of water issues, neighborhood harmony disturbance, opposition by neighbors, creation of corner lots and spite strips. Id. at ¶ 94. The four commissioners based their decisions upon the overwhelming public opposition, the unsatisfactory responses of the plaintiff's engineer on their flooding and drainage inquiries,
Plaintiff subsequently filed an administrative appeal of the PZC's decision with the Connecticut Superior Court, in the matter of Pappas v. Enfield Planning & Zoning Commission, 2006 WL 3360480. The Connecticut Superior Court sustained the appeal on the basis that "nothing in the record provided a reasonable basis for the Commission's action" and that it was "arbitrary" for the PZC "[to] ignor[e] the opinions of the only two experts on storm water drainage, flooding etc." Pappas, 2006 WL 3360480 at *6. The Connecticut Superior Court ruled that the denial of plaintiff's application was "unreasonable, illegal, arbitrary and [a]n abuse of the Commission's discretion," and ordered the PZC to approve plaintiff's application. Id. Following the decision of the Superior Court, the Commission granted plaintiff's resubdivision application as proposed. Compl. ¶ 34.
Plaintiff then filed this action under 42 U.S.C. § 1983 on February 15, 2008, alleging due process and equal protection violations, and seeking money damages and punitive damages, as well as attorney's fees and costs. In her complaint, Pappas specifically alleged that the defendants deprived her of "equal protection, in violation of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983," in that defendants "acting under the color of law, singled out the plaintiff for unfair and illegal treatment," when they "intentionally, improperly and in bad faith, treated the plaintiff differently than other similarly situated persons and with no rational basis for the different treatment." Compl. ¶ 43-45. Since the plaintiff has later admitted that the defendants' denial of her application was not based on "personal dislike" or "ill will" toward the plaintiff [Def. 56.1 Stmt. ¶ 173; Pl. 56.1 Resp. ¶ 173], and has provided no evidence
In its earlier ruling on defendant's Motion to Dismiss under Fed.R.Civ.P. 12(b)(6), 2010 WL 466009, the Court dismissed the plaintiff's substantive due process claim with prejudice, on the grounds that the plaintiff did not have a constitutionally protected property interest in the granting of her application, because Enfield's Subdivision Regulations vested the PZC with discretion in its review of subdivision applications. This Court also dismissed the taking of property claim, which the plaintiff had voluntarily withdrawn, without prejudice. The only remaining claim is equal protection, which this decision will address.
The criteria for granting or denying summary judgment are well established. Summary judgment is proper only "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). "A `genuine issue' exists for summary judgment purposes where the evidence, viewed in the light most favorable to the nonmoving party, is such that a reasonable jury could decide in that party's favor." Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 498 (2d Cir.2001). In other words, "the court must resolve all ambiguities and draw all inferences in favor of the non-moving party." Alberti v. Town of Brookhaven, 876 F.Supp.2d 153, 160 (E.D.N.Y.2012) (quoting Castle Rock Entm't, Inc. v. Carol Publ'g Grp., 150 F.3d 132, 137 (2d Cir. 1998)).
Nonetheless, summary judgment must be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 411 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "A party opposing a properly brought motion for summary judgment bears the burden of going beyond the [specific] pleadings, and `designating specific facts showing that there is a genuine issue for trial.'" Amnesty Am. v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir.2002) (quoting Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548). To satisfy its burden of proof, the [nonmoving] party "may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence in support of its factual assertions." Gryphon Dev. LLC v. Town of Monroe, No. 08 Civ. 3252, 2009 WL 4288202, at *3 (S.D.N.Y. Nov. 30, 2009) (quoting D'Amico v. N.Y.C., 132 F.3d 145, 149 (2d Cir.1998)); see also Harlen Assocs., 273 F.3d at 499 ("[M]ere speculation and conjecture is insufficient to preclude the granting of the motion.")
It is generally held that in fact-intensive cases such as this one, a trial court should not entertain or adjudicate motions by either party for summary judgment until all
"The Equal Protection Clause requires that the government treat all similarly situated people alike." Harlen Assocs., 273 F.3d at 499. While the prototypical equal protection claims are based on membership in a protected class, often vulnerable to discrimination, the Supreme Court formally recognized over a decade ago the "class of one" equal protection claim in Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000); Harlen Assocs., 273 F.3d at 499; Neilson v. D'Angelis, 409 F.3d 100, 104 (2d Cir.2005), rev'd on other grounds;
However, courts must balance the expansive coverage of the equal protection doctrine with potential interference in government activity. As the Second Circuit said in Harlen "we are mindful of the general proscription that `federal courts should not become zoning boards of appeal to review non-constitutional land[-]use determinations by the [C]ircuit's many local legislative and administrative agencies.'" Harlen Assocs., 273 F.3d at 502 (quoting Zahra v. Town of Southold, 48 F.3d 674, 679-80 (2d Cir.1995)). A federal court's function is to protect individuals and groups against intentional discriminatory and disparate treatment, not to oversee the operations of local governments and agencies. The law must minimize the danger of every dissatisfied landowner making a claim against their local zoning boards and government agencies and against the individual commissioners and regulators, under the pretense of equal protection — a perverse incentive that Justice Breyer was deeply concerned with in his concurrence to Olech, 528 U.S. at 565-66, 120 S.Ct. 1073.
Rather than inserting a malice requirement, as Justice Breyer urged in Olech to prevent "transforming run-of-the-mill zoning cases into cases of constitutional right," the "class of one" equal protection doctrine has instead adopted an extraordinarily
Cordi-Allen v. Conlon, 494 F.3d 245, 251 (1st Cir.2007) (internal citation omitted); see also Pansy Road, LLC v. Town Plan & Zoning Comm'n of Town of Fairfield, No. 3:05-CV-916, 2007 WL 2889456, at *2 (D.Conn. Sept. 29, 2007).
Thus, in order to ultimately prevail on a "class of one" equal protection claim, the plaintiff bears the burden of showing "an extremely high degree of similarity between themselves and the persons to which they compare themselves." Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir.2006); see also Ruston v. Town Bd. for the Town of Skaneateles, 610 F.3d 55, 59 (2d Cir.2010); Neilson, 409 F.3d at 104; Mihaly v. Town of Trumbull Water Pollution Control Auth., No. 3:12-cv-1157, 2013 WL 2948329, at *3 (D.Conn. June 14, 2013); Reardon, 980 F.Supp.2d at 332-33, 2013 WL 5818812, at *29; Pansy Road, 2007 WL 2889456, at *2. The comparison with others of an "extremely high degree of similarity" is used as an indicator of the decisionmarkers' intention to discriminate and their awareness of disparate treatment. Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 143 (2d Cir.2010); Aliberti, 876 F.Supp.2d at 163. As now-Justice Sotomayor explained in Clubside,
Id. (internal quotation omitted). In Neilson, the Second Circuit adopted the Seventh Circuit's standard in Purze — requiring the comparator(s) to be "prima facie identical." 409 F.3d at 105; Purze v. Vill. of Winthrop Harbor, 286 F.3d 452, 455 (7th Cir.2002) (emphasis in the original); see Reardon, 980 F.Supp.2d at 333, 2013 WL 5818812, at *30. Then in Ruston, the Second Circuit applied a similarly stringent standard to the land use context — properties must be "so similar that no rational person could see them as different."
How is the question of similarly situated decided in the summary judgement stage?
In the case at bar, since the plaintiff does not allege membership in a protected class, her equal protection allegations will need to proceed under a "class of one" claim. The plaintiff argues that there is "a genuine question of fact as to whether she was disparately treated than comparators who submitted such a certified plan and were approved," including several located in flood zone and have experienced flooding. Doc. 87, p. 27-28. The plaintiff contends generally that "at least from 1999, [the PZC has] never denied a subdivision based on the inadequacy of the stormwater management when an engineer certifies that the design meets established engineering standards." Doc. 87, p. 28. The plaintiff follows with other conclusory allegations on her application being treated differently from "numerous other administratively approved plans situated in exactly the same fashion," without providing any specifics on these "numerous other ... plans." Id. at 35.
In the plaintiff's Local Rule 56.2 Statement, the plaintiff again notes in summary fashion: "from 1999 to the present ... the Commission has approved several subdivision applications for properties located in floodplain designated areas," "never denied and/or conditionally approved a subdivision application based on groundwater levels," never based a decision on "the existence of seasonal high groundwater at a level at or above a basement floor," "authorized subdivision lots where building foundations can be constructed below seasonal groundwater levels at every approved subdivision lot." Pl. 56.2 Stmt. ¶ 175-78.
To support these generalized and essentially conclusory assertions, the plaintiff references Exhibit A of "Exhibit 1: Affidavit of Margaret R. Pappas" [Doc. 88], a listing of "subdivision applications and several special use permit applications filed with the Town of Enfield from 1995 through 2010." Pappas Aff. ¶ 6. That listing provided only the most basic information on the applications, including the file number, name of applicant, use (a short descriptor that included the type of application, lot number, and/or name and phase of project), results of the vote, coordinates on the Town's map, the street location, and
The plaintiff also submitted an edited list of the subset of approved applications located in a 100-year and/or 500-year FEMA flood zone, again without supplying any details beyond the basic information. Id. at ¶ 182.
The only comparators specifically discussed and referenced by name and/or application number in the plaintiff's Local Rule Statement are Ridgewood Homes of Connecticut, LLC (PHN002536 & PHN002537) and "subdivisions that created Katie Lane (PHN2040), Salerno Drive and Rebecca Drive ... and the Shaker Heights Subdivision." Id. at ¶¶ 183, 186 & 200. But the descriptions are shallow, without the details necessary to demonstrate that they are virtually identical to the plaintiff's application. The plaintiff cites Ridgewood Homes for the proposition that the PZC approved a subdivision despite having determined that the area suffered from substantial flooding, and Katie Lane (PHN2040), Salerno Drive, and Rebecca Drive subdivisions for approval despite creating new roads next to residential dwellings, turning them into corner lots. Id.
Not only do the plaintiff's submissions lack sufficient details on the proposed comparators for this Court to make a proper determination, but her approach of cherry-picking features of different applications to support her propositions is fundamentally flawed. The standard requires that each comparator to have an "extreme high degree of similarity" or be "prima facie identical" to the plaintiff's application in order to be considered similarly situated, so that no rational person would deem the plaintiff's application and comparators different (citations omitted, emphasis added). Otherwise, these comparators may have other characteristics that would lead to differences in outcome that are not the result of intentional discrimination or disparate treatment, effectively defeating the purpose of the test. A one-to-one comparison is required to control for other variables that would lead to differing treatment. The Second Circuit and district courts in this Circuit have
The defendants argue that the plaintiff's application is "unique," which is to say, without similarly situated comparators. Doc. 75, pp. 31-35. Addressing an issue upon which plaintiff bears the burdens of proof and persuasion, the defendants identify specific comparators with sufficient detail to allow the Court to make a determination whether the facts of the matter would support a "class of one" claim. The defendants methodically break down the universe of potential comparative applications, identifying 15 other applications voted upon during the period when all four individual defendants were regular members of the PZC. Id. at 31. Then, the defendants note that 7 of these applications are post-Grand View and October 2005 floods. Id. at 32. Of those, only 3 applications received any public comments; among those only one is a subdivision application for more than 7 lots with a new proposed road. Id. The Cherry Wood Estates Second Phase (PHN002627) resubdivision application (thereafter "Cherry Wood") is for 16 lots, filed on November 15, 2007. Def. 56.1 Stmt., Ex. J. However, as the defendants allege, Cherry Wood is different from Pappas' application because it did not involve the demolition of a home to create a new road, there was no issue of high ground water table, three of the four defendant commissioners did not vote or participate in the hearing (Commissioners Hickey, Weseliza, and Cooper), and the application was voted on after the State Court's decision on Pappas, reversing the PZC's prior determination. Doc. 75, p. 32. The defendants then expanded the time frame to include the period when all the defendant commissioners were regular or alternate members: only 6 applications involved 7 or more lots. Id. at 33. Among them, excluding Cherry Wood and the two filed by Pappas, none involved the creation of a new road. Id. Applications 2323 and 2565 only had 7 lots; applications 2308 and 2323 did not have all the defendant commissioners voting; application 2308 had no public opposition; and application 2565 was in a wooded agricultural area not densely populated. Id.
Lastly, defendants stress the seemingly undisputed factors that there has been "no prior or subsequent subdivision or resubdivision application in the Town of Enfield," while any defendant commissioner was a member, which involved: "the demolition of an existing single family home ... for a subdivision roadway," "placement of ten or more homes in an area with as high a water table," "as much evidence that the land was subject to flooding," "as much public opposition" over flooding, drainage, and other issues, and "failed to adequately respond to commissioner questions [on] drainage and/or flooding issues." Id. at 34.
The Court approves the methodology employed by the defendants to identify similarly situated applications. The Second Circuit "has determined that the size and number of lots are relevant factors to consider in assessing the similarity between two property owners who are both applying for the same type of permit." Gryphon, 2009 WL 4288202, at *5 (citing Clubside, 468 F.3d at 159). Clubside deemed projects involving "different types
Differences between the compared applications, even in minute details, may impact the decision of a zoning board, and thus would defeat a showing of similarly situated. The comparators need to be "identically situated in all relevant respects rationally related to the government's mission." Purze, 286 F.3d at 455; see also Mihaly, 2013 WL 2948329, at *3 (comparator having similarly low elevation as the plaintiff's property is a key factor to be considered similarly situated). Following this principle in Pansy Road, Judge Chatigny of this Court rejected the plaintiff's proposed comparators — "two other subdivisions in Fairfield located on cul-de-sacs serviced by roads that also provide service to nearby school" — over differences on the placement of parking and traffic flow patterns created by road structures. 2007 WL 2889456, at *2. He reasoned "[i]n one case, parking is not permitted on the service road, and school traffic exits onto a different road; in the other, subdivision traffic does not exit onto the road where the school's main entrance and exit is located." Id. Judge Chatigny concluded, "given these significant differences relating to traffic safety, plaintiff's equal protection claim must fail as a matter of law." Id. In the case at bar, the proposal for a new road and factors that may contribute to flooding, such as high water table, were central considerations in the PZC's deliberation and primary targets of the public's commentary. Therefore, any subdivision that lack these features would not met the stringent standards of "similarly situated."
The timing of the application is also an important consideration in selecting comparators. Temporal disparity may undermine a potential similarly situated comparator, because nondiscriminatory reasons, such as policy change or a intervening event, may explain the difference in treatment over time.
Cordi-Allen, 494 F.3d at 253 (citing Purze, 286 F.3d at 455); see also Clubside, 468 F.3d at 160 (the plaintiff's successful state
Since the allegation of disparate treatment originated from the decision of the four commissioners who voted against Pappas' application, and the four commissioners are also individual defendants to the matter, comparable applications would not be considered prima, facie identical or exhibiting a high degree of similarity unless they have been decided by these four commissioners. See Purze, 286 F.3d at 455 (comparators "submitted their plats during different time periods; and had their plat requests granted by different and previous Boards" are not similarly situated). Therefore, an application like Cherry Wood, where Commissioners Hickey, Weseliza and Cooper, three of the four defendant commissioners, did not vote or participate in the hearing would not be considered sufficiently similar to the plaintiff's application.
Even assuming arguendo plaintiff has fulfilled her burden to specify how her application was similarly situated to those of other developers approved by Enfield's PZC, this Court agrees with the defendants that the other subdivision or resubdivision applications do not demonstrate the "extremely high degree of similarity" required by this Circuit, laid down in Clubside, or the "prima facie identical" adopted from Seventh Circuit's Purze, for a successful "class of one" Olech claim. These undisputed facts, developed during discovery and the parties' more recent submissions, demonstrate that the plaintiff is unable to show — or at least has not shown — that there are other real estate developments similarly situated, with an extremely high degree of similarity or prima facie identical, from which this Court could base the inference that there was intentional disparate treatment against this "class of one" plaintiff, in violation of the Constitution's guarantee of equal protection of the laws. In consequence, plaintiff has failed to prove the "similarly situated" prong of her equal protection claim, and the defendants are entitled to judgment as matter of law.
This Court's decision to grant summary judgment to the defendants rests on not only the plaintiff's failure to prove the first prong of her "class of one" equal protection claim, but also her inability to demonstrate the PZC did not have rational basis for their decision to deny her application. A successful equal protection claim requires the "class of one" plaintiff to demonstrate that he has been (1) "intentionally treated differently from others
The Gryphon court summarized the standards for a successful equal protection claim under rational basis in the Second Circuit:
2009 WL 4288202, at *6 (internal citations omitted, emphases added).
Again, it is a high bar for the plaintiff: as long as one of the reasons advanced by the zoning board for its decisions is deemed a legitimate rational basis, the plaintiff does not have a viable equal protection claim. See Harlen Assocs., 273 F.3d at 500-01. Reasons for denial need not be based on expert opinions or scientific calculations to be legitimate. "Basing a decision on personal experience and observations of the surrounding community is not arbitrary as a matter of law. A decision can only be considered arbitrary for federal constitutional purposes where ... it has no basis in fact." Id. Enfield's PZC gave multiple reasons for its denial of Pappas' application, based upon professional judgment, personal observations, and public commentary. The commissioners made their determination after extensive fact finding and deliberation, holding as many as four public hearings. While it is not a purely objective determination based solely on technical standards and expert opinions, it is, however, not arbitrary for federal constitutional purposes. In fact, as the Second Circuit noted in Harlen, "[e]ven if the Board's action were based solely on community opposition, such action would not be unconstitutionally arbitrary if the opposition is based on legitimate state interests such as, inter alia, traffic, safety, crime, community pride, or noise." Id. at
There is an important distinction between what is considered arbitrary, capricious and an abuse of discretion as a matter of state law and what lacks rational basis under the Fourteenth Amendment Equal Protection Clause. The two should not be equated, as they are separate determinations for different purposes under different standards and burdens of proof. A state court reviews the local zoning board's decisions for merit. A federal court reviews those decisions for constitutionality. It may be understandable in human nature for a landowner to think that if a zoning board's adverse decision is arbitrary and incorrect, it must be unconstitutional, but that is not the law. It is not the province of federal courts to judge the correctness of local zoning board decision, a task better suited for state courts. The Second Circuit said in Clubside: "It is not the role of the federal courts to protect landowners from merely arbitrary actions that are correctable by state remedies ... our analysis does not turn on the outcome of the Article 78 proceeding."
Plaintiff in the case at bar scattered throughout her brief references to her successful litigation in the Connecticut state court, as if that court's judgment in her favor, 2006 WL 3360480, somehow supported her constitutional claim in this federal court. That is not so. I am constrained by governing appellate authority to conclude that a violation of plaintiff's constitutional rights cannot be based, in whole or in part, upon the state court's determination that the initial denial of plaintiff's application was incorrect.
In short, the Court grants summary judgment to defendants on plaintiff's equal protection claim on two grounds: (1) plaintiff has failed to identify similarly situated comparators; and (2) plaintiff has failed to show that Enfield's PZC lacked a rational basis for its decision.
Lastly, the parties' briefs dispute the effect of the Supreme Court's decision in
Defendants at bar seize upon Engquist to argue that no equal protection claim exists in the present case, because the defendants' decision was not made on "a clear standard against which departures, even for a single plaintiff, could be assessed," but instead was by its nature "subjective and individualized." Doc. 75, p. 10 (quoting Engquist, 553 U.S. at 602, 604, 128 S.Ct. 2146). Plaintiff, in response, cites Analytical Diagnostic, 626 F.3d 135, a Second Circuit opinion holding that Engquist does not bar all "class of one" claims involving discretionary state action. The question is interesting, but this Court need not decide it in this case. The arguable "government discretion" third prong is irrelevant to the final determination and unnecessary for the disposition of this case.
Public officials are entitled to immunity from civil liability "if their actions were objectively reasonable, as evaluated in the context of legal rules that were `clearly established' at the time." Bizzarro v. Miranda, 394 F.3d 82, 85-86 (2d Cir.2005) (quoting Poe v. Leonard, 282 F.3d 123, 132 (2d Cir.2002)). For the individual defendants in equal protection cases, the Second Circuit stated in Bizzarro: "if plaintiffs' version of the facts reveals that the officials could reasonably have believed they were not violating plaintiffs' constitutional rights, the district court should have granted the motion for summary judgment" to the individual defendants on the
For the foregoing reasons, the defendants' motion for summary judgment with respect to the plaintiff's equal protection claim under the United States Constitution is GRANTED.
The plaintiff's other constitutional claims of due process and taking of property have been previously dismissed. Judgment will enter for the defendants, dismissing the complaint with prejudice.
The Clerk is directed to close the file.
It is SO ORDERED.
