Opinion
08 Civ. 3252 (SHS).
November 30, 2009
OPINION ORDER
Plaintiff Gryphon Development LLC brings this action pursuant to 42 U.S.C. § 1983, seeking damages resulting from the refusal of the Town of Monroe to grant Gryphon's petition for the Town to extend the boundaries of its Sewer District No. 8 to include property Gryphon owned. Gryphon argues that because the Town allowed other similarly situated individuals to receive sewer services from the Town but did not permit Gryphon to do so, the Town acted arbitrarily and irrationally with respect to it, violating Gryphon's right to equal protection of the laws pursuant to the Fourteenth Amendment of the Constitution of the United States. Because the evidence demonstrates as a matter of law both that Gryphon's circumstances were not identical to the other property owners who were granted outside user agreements and that the Town had a rational basis for its decision, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment is granted.
I. BACKGROUND
Gryphon is a limited liability corporation formed under the laws of the State of New York, with its principal place of business in Saddle River, New Jersey. (Def.'s Local Civil Rule 56.1 Statement of Undisputed Facts ("Def.'s 56.1") ¶ 26; Pl.'s Response to Def.'s Local Civil Rule 56.1 Statement of Undisputed Facts ("Pl.'s 56.1 Resp.") ¶ 1.) Gryphon owns a 4.9 acre tract of unimproved land in the Town, but it is not located within the Town's sewer district. (Def.'s 56.1 ¶¶ 27-28; Pl.'s 56.1 Resp. ¶ 1.)
Monroe has two sewer districts — District No. 8 and District No. 9 — which provide municipal central sewer services to only a portion of the Town. (Def.'s 56.1 ¶ 2; Pl.'s 56.1 Resp. ¶ 1.) The Town is obligated to provide central sewer service upon request to all properties that are located within those two sewer districts. (Def.'s 56.1 ¶ 3; Pl.'s 56.1 Resp. ¶ 1.) Monroe sometimes allows individuals who own property located outside of its two sewer districts to hook into the Town's sewer lines under individual contracts known as "outside user agreements." (Def.'s 56.1 ¶ 4; Pl.'s 56.1 Resp. ¶ 1.) Outside user agreements are simply contracts entered into by Monroe, and determination of whether to enter into such a contract is entirely within the discretion of the Town Board of the Town of Monroe. (Def.'s 56.1 ¶ 5; Pl.'s 56.1 Resp. ¶ 1.)
Monroe does not own a wastewater treatment plant; instead, it sends the wastewater from its two sewer districts to a wastewater treatment plant known as the Harriman Wastewater Treatment Plant ("Harriman Treatment Plant"), (Def.'s 56.1 ¶¶ 6, 7; Pl.'s 56.1 Resp. ¶ 1), which is owned by Orange County Sewer District No. 1 ("Orange County Sewer District") (Def.'s 56.1 ¶ 8; Pl.'s 56.1 Resp. ¶ 1). Orange County Sewer District accepts wastewater from the Town of Monroe pursuant to an intermunicipal agreement, which states that the total amount of wastewater that the Town can send to the Harriman Treatment Plant is 133,000 gallons per day ("gpd"). (Def.'s 56.1 ¶¶ 9-10; Pl.'s 56.1 Resp. ¶ 1.) Prior to 2006, the total wastewater treatment capacity of Harriman Treatment Plant was 4,000,000 gpd, and Orange County either used or sold its entire treatment capacity. (Def.'s 56.1 ¶ 12; Pl.'s 56.1 Resp. ¶ 1.) However, in the 1990s, the U.S. Environmental Protection Agency commenced legal proceedings against Orange County because the total amount of wastewater being sent to Harriman Treatment Plant exceeded its 4,000,000 gpd. (Def.'s 56.1 ¶ 13; Pl.'s 56.1 Resp. ¶ 1.) As a result, Orange County Sewer District No. 1 entered into a consent decree in the United States District Court for the Southern District of New York, under which it was obligated to expand the capacity of the Harriman Treatment Plant. (Def.'s 56.1 ¶ 14; Pl.'s 56.1 Resp. ¶ 1.) The Town anticipated that once the plant's capacity was increased, Orange County would allow it to purchase additional treatment capacity. (Def.'s 56.1 ¶ 16; Pl.'s 56.1 Resp. ¶ 1.)
By early 2007, the expansion of the Harriman Treatment Plant mandated by the Southern District of New York was completed, and it can now treat 6,000,000 gpd of wastewater. (Ex. Q to Decl. of Stephen J. Gaba, Esq., dated June 30, 2009 ("Gaba Decl.") at 6.) However, by the time Gryphon petitioned to extend the boundaries of Sewer District No. 8 and by the time the Town held a public hearing on Gryphon's petition in March 2007, the Town of Monroe had not arranged any increase in the quantity of its wastewater that the Orange County Sewer District would accept. (Gaba Decl. Ex. X at 18-21.)
Between December 2003 and May 2004, the Town Board had entered into three outside user agreements to provide central sewer services for three single family home lots. (Def.'s 56.1 ¶¶ 17-19; Pl.'s 56.1 Resp. ¶ 1.) The lots are known as the "Pelso-Trisci" lot, the "Ajjan" lot, and the "Dierna" lot. (Id.)
Gryphon maintains that Monroe in fact entered into additional outside user agreements during this same period of time, but plaintiff has not indicated the basis for this information in accordance with Local Civil Rule 56.1(d). As a result, this Court does not consider the unsupported information. Fernandez v. DeLeno, 71 F. Supp. 2d 224, 227 (S.D.N.Y. 1999) (quoting Titan Indem. Co. v. Triborough Bridge Tunnel Auth., Inc., 135 F.3d 831, 835 (2d Cir. 1998)).
In November 2004, after Monroe entered into those three additional outside user agreements, Gryphon applied for an outside user agreement for a proposed seven lot residential subdivision of its property, but the Town Board denied Gryphon's request on the grounds that it had recently declared a moratorium on outside user agreements. (Def.'s 56.1 ¶ 30; Pl.'s 56.1 Resp. ¶ 1.) The Town decided to implement the moratorium on outside user agreements because it alleges it was nearing its existing limit of 133,000 gpd of wastewater that it was permitted to send to the Harriman Treatment Plant, and it was concerned that granting more outside user agreements would render it unable to provide sewer services to in-district users who were entitled to those services by law. (Def.'s 56.1 ¶ 24; Pl.'s 56.1 Resp. ¶ 1.)
In the fall of 2006, Gryphon formally petitioned the Town to extend the boundaries of Sewer District No. 8 to include properties owned by Gryphon. (Def.'s 56.1 ¶ 33; Pl.'s Resp. ¶ 1; Pl.'s 56.1 ¶ 4; Def.'s 56.1 Resp. ¶ 4.) On May 19, 2008, the Town Board denied Gryphon's extension petition for the reasons stated in its decision letter, including its need to reserve sufficient capacity for certain undeveloped tracts that were legally entitled to hook into the Town's sewer system because the properties were within the Town's sewer district boundaries. (Pl.'s 56.1 ¶ 5; Def.'s 56.1 Resp. ¶ 5.) When the Town denied Gryphon's extension petition, it relied on data set forth in the Orange County sewer flow charts and the statements in the engineering report submitted by Gryphon for its analysis of the remaining treatment capacity available to the Town. (Pl.'s 56.1 ¶ 5; Def.'s 56.1 Resp. ¶ 5; Gaba Decl. Ex Z, Exs. W-Z.) The engineer's report that plaintiff submitted states that the Town's average use for the 12 month period ending October 31, 2006 was approximately 76% of its 133,000 gpd capacity, and that Gryphon's proposed usage would constitute approximately 2,800 gpd on average, up to a maximum of 5,600 gpd. (Gaba Decl. Ex. Y.)
The parties disagree whether the decision had anything to do with the "Markay" tract of land, but, that dispute is not material.
On March 5, 2007, a public hearing was held on Gryphon's petition to expand Sewer District No. 8. (Def.'s 56.1 ¶ 40; Pl.'s Resp. ¶ 1; Gaba Decl. Ex. X.) During the course of the hearing, Gryphon's attorney, James Sweeney, conceded that, at the time of the hearing, the Town of Monroe did not have treatment capacity available beyond the capacity needed to serve the indistrict property owners that had yet to develop their land, but who had a legal right to services should they request them. (Gaba Decl. Ex. X. at 12-18.) Specifically, Sweeney agreed with the Town's attorney, Kevin Dowd, that the Town would exceed its current treatment capacity of 133,000 gpd if it both granted Gryphon's request and provided sewer services to a future development, Henry Farm (a large, undeveloped tract of land within the Sewer District No. 8). (Id.) Furthermore, Sweeney agreed that in order for the Town to obtain treatment capacity sufficient for Henry Farm and the Gryphon property, it would have to succeed in negotiating for additional treatment capacity at the Harriman Treatment Plant. (Id.) Sweeney also acknowledged that there were a number of other large undeveloped properties that had the right to receive central sewer services from the Town because they were within one of the Town's sewer districts. (Gaba Decl. Ex. X. at 18-19.)
In addition, Dowd alerted Sweeney to the fact that, at the time of the public hearing, there was a lawsuit brought by the Village of Kiryas Joel in New York state court that potentially could prevent the Town from acquiring any additional treatment capacity at the Harriman Treatment Plant in the future. (Def.'s 56.1 ¶ 50; Pl.'s Resp. ¶ 1; Gaba Decl. Ex. X at 20-21.) Although the Town Board and Sweeney did not have detailed information about the lawsuit at the public hearing, Sweeney acknowledged that if the plaintiff in that litigation were successful, the Town would not be able to purchase additional wastewater treatment capacity from Orange County sewer district. (Id.) Despite this possibility, Sweeney concluded that the pending lawsuit was not relevant to Gryphon's petition because, in his opinion, it did not have a "snowball's chance in Hell" of successfully preventing the Orange County sewer district from selling additional capacity to Monroe and other towns. (Id.)
II. DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate only if the evidence shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In determining whether a genuine issue of material fact exists, the Court "is to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004). Nonetheless, the party opposing summary judgment "may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence" in support of its factual assertions. D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998). The same standard applies where the parties file cross-motions for summary judgment: "each party's motion must be examined on its own merits, and in each case all reasonable inferences must be drawn against the party whose motion is under consideration." Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir. 2001).
B. Class of One Equal Protection Claim i. Legal Standard
Gryphon's complaint is predicated exclusively on the "class of one" equal protection doctrine as articulated by the United States Supreme Court in Village of Willowbrook v. Olech, 528 U.S. 562 (2000). "While the Equal Protection Clause is most commonly used to bring claims alleging discrimination based on membership in a protected class, where . . . the plaintiff does not allege membership in such a class, he or she can still prevail in what is known as a `class of one' equal protection claim." Neilson v. D'Angelis, 409 F.3d 100, 104 (2d Cir. 2005); see also Dones v. City of New York, No. 07 Civ. 3085, 2008 U.S. Dist. LEXIS 53681, at *27-29 (S.D.N.Y. July 9, 2008). A successful equal protection claim may be brought by a class of one where the plaintiff alleges that she has been (1) "intentionally treated differently from others similarly situated" and (2) "`there is no rational basis for the difference in treatment."DeMuria v. Hawkes, 328 F.3d 704, 706 (2d Cir. 2003) (quotingOlech, 528 U.S. at 564); see also Clubside Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006). In order to prevail on such a claim, a plaintiff is "required to show, not only `irrational and wholly arbitrary' acts . . . but also intentional disparate treatment." Giordano v. City of New York, 274 F.3d 740, 751 (2d Cir. 2001) (quoting Olech, 528 U.S. at 565) (emphasis in original).
Although the parties dispute the effect of the Supreme Court's recent decision in Engquist v. Or. Dep't of Agric, ___ U.S. ___, 128 S. Ct. 2146 (2008), this Court need not attempt to define the scope of the Engquist decision today because plaintiff cannot show that its case is identical to those of the parties who were granted the right to hook into the Town's sewer system, and the Town has demonstrated that it acted with a rational basis in denying Gryphon's petition. Therefore, plaintiff's motion for summary judgment is denied, and defendant's motion for summary judgment is granted.
ii. Analysis
(a) Similarity of Plaintiff Compared to Others
As noted above, a plaintiff bringing a class of one claim pursuant to the Supreme Court's decision in Olech must first demonstrate that she has been "intentionally treated differently from others similarly situated." DeMuria v. Hawkes, 328 F.3d 704, 706 (2d Cir. 2003) (quoting Olech, 528 U.S. at 564); see also Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006). The U.S. Court of Appeals for the Second Circuit has emphasized that "the level of similarity between plaintiffs and the persons with whom they compare themselves must be extremely high." Skehan v. Village of Mamaroneck, 465 F.3d 96, 110 (2d Cir. 2006) overruled on other grounds by Appel v. Spiridon, 531 F.3d 138 (2d Cir. 2008). Indeed, the plaintiff must show that (1) "no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy"; and (2) "the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendant acted on the basis of a mistake." Skehan, 465 F.3d at 110 (citing Neilson, 409 F.3d at 104-05). The reason a plaintiff must meet such a stringent standard of proof is because "the existence of persons in similar circumstances who received more favorable treatment than the plaintiff in a class of one case "is offered to provide an inference that the plaintiff was intentionally singled out for reasons that so lack any reasonable nexus with a legitimate governmental policy that an improper purpose, whether personal or otherwise — is all but certain." Valentin, 468 F.3d at 159.
Generally, whether parties are similarly situated is a fact-intensive inquiry. See Harlen Assocs. v. Incorporated Village of Mineola, 273 F.3d 494, 499 n. 2 (2d Cir. 2001); see also Valentin, 468 F.3d at 159. A court may grant summary judgment in a defendant's favor on the basis of lack of similarity of situation, however, where no reasonable jury could find that the persons to whom the plaintiff compares itself are similarly situated. Harlen Assocs., 273 F.3d at 499 n. 2.; see also Neilson, 409 F.3d at 106 (holding that no rational person could have found that the comparators were similarly situated, notwithstanding the jury's finding to the contrary).
Plaintiff contends that the owners of certain lots who were allowed to enter into outside user agreements with the Town were under identical circumstances to Gryphon, and that to distinguish Gryphon from those applicants was arbitrary and capricious under the Supreme Court's decision in Olech. However, the record demonstrates that Gryphon's circumstances were not identical to those of the owners of the Dierna, Ajjan, and Pelso-Trisci lots: the owners of those lots were all granted outside user agreements in 2003-2004, which was before the Town imposed its moratorium, and before the lawsuit involving the Village of Kiryas Joel was commenced, which sought to prohibit the sale of additional sewer treatment capacity to the Town. Gryphon's petition, in contrast, was to extend the boundaries of Sewer District No. 8, which, as Gryphon's attorney specifically acknowledged at the public hearing in March 2007, would give a property owner a greater set of rights than a property owner who has only a contract for use with the Town. (Gaba Decl. Ex. X at 16-24.) Moreover, Gryphon's petition to extend the boundaries of Sewer District No. 8 was submitted in September 2006, after the Town imposed a moratorium on outside user agreements and after Village of Kiryas Joel commenced a lawsuit seeking to enjoin Orange County Sewer District from selling more treatment capacity to outside towns, including Monroe.
In addition, the U.S. Court of Appeals for 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. See Valentin, 468 F.3d at 159. Gryphon's situation differs from the other property owners to whom he compares himself in that regard as well. Gryphon sought to expand the Town's sewer district for a proposed seven lot residential subdivision, whereas the owners of the Dierna, Ajjan, and Pelso-Trisci lots each sought an outside user agreement for a single family home. (Def.'s 56.1 ¶¶ 17-19; Pl.'s 56.1 Resp. ¶ 1.) As then-Judge Sotomayor explained, differences in size of housing developments can be material. See Valentin, 468 F.3d at 159.
(b) Rationality of the Town's Decision Regarding Gryphon's Petition
A plaintiff bringing a class of one equal protection claim must also show that there was "no rational basis for the difference in treatment" that plaintiff received. DeMuria v. Hawkes, 328 F.3d 704, 706 (2d Cir. 2003) (quoting Olech, 528 U.S. at 564); see also Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006). To demonstrate a "rational basis," a court need only find that "there is any reasonably conceivable state of facts that could provide [a] rational basis" for the decision, and no violation of equal protection has occurred. Bd. of Managers of Soho Int'l Arts Condo. v. City of New York, No. 01 Civ. 1226, 2004 U.S. Dist. LEXIS 17807, at *72-73 (S.D.N.Y. Sept. 8, 2004). Only when a land use board acts with "no legitimate reason for its decision" can a "class of one" claim proceed. Harlen Assocs., 273 F.3d at 500. When examining such a decision for the existence of a rational basis, "the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it . . . whether or not the basis has a solid foundation in the record."Heller v. Doe, 509 U.S. 312, 320-21 (1993). Indeed, the government's decision is accorded a strong presumption of constitutionality. Beatie v. City of New York, 123 F.3d 707, 712 (2d Cir. 1997).
The Court's decision today not only rests on the lack of similarity between Gryphon and the other property owners to whom plaintiff asks this Court to compare it with, but also on its finding that the Town had a rational basis for its decision to deny Gryphon's petition to extend the boundaries of Sewer District No. 8.
In its final decision, (Gaba Decl. Ex. Y), the Town set forth the reasons why it denied Gryphon's petition. The decision states that, based on Gryphon's own engineering report submitted with its application, the Town could send up to 133,000 gpd to the Harriman Treatment Plant. (Id.) Of its treatment capacity, the Town used approximately 100,000 gpd, which constituted 75 percent of its available capacity. (Id.) At the hearing on Gryphon's petition, Gryphon's attorney conceded that there was at least one other property located within the existing boundaries of Sewer District No. 8 — Henry Farm — that was not yet hooked into the sewer system, but was otherwise legally entitled to do so. (Id.; Gaba Decl. Ex. X at 12-13.)
Although plaintiff now belatedly disputes whether Henry Farm is actually in Sewer District No. 8, (see Letter from James C. Sweeney dated Aug. 3, 2009), plaintiff did not object to paragraph 22 of defendant's Rule 56.1 statement, which unequivocally states that Henry Farm is located within Sewer District No. 8 in the Town of Monroe, (Def.'s 56.1 ¶¶ 22-23; Pl.'s 56.1 ¶ 1.) Because plaintiff did not object to defendant's statement of that fact, that fact is deemed admitted by plaintiff pursuant to Local Civil Rule 56.1(d).
Sweeney stated in the hearing on March 5, 2007, that certain properties were "earmarked for future usage," the most obvious one being "Henry Farm," which is a "116 mixed dwelling unit project on Lakes Road." (Gaba Decl. Ex. X at 12-13.) Sweeney went on to say that Henry Farm is in the "southerly quadrant of the Town of Monroe Sewer District No. 8," and that the Town projected that Henry Farm, if it were hooked into the Town's sewer system, would use approximately 37,000 gpd of the Town's reserve capacity. (Id.) As Sweeney conceded at the 2007 hearing and the Town noted in its decision letter, if Henry Farm were hooked up and used 37,000 gpd, the Town would exceed its 133,000 gpd treatment capacity. (Id.; Gaba Decl. Ex. Y.)
Sweeney contended at the Town meeting that Monroe had the ability to increase its treatment capacity so that the inclusion of the Henry Farm project would not cause the Town to exceed its 133,000 gpd treatment capacity. (Gaba Decl. Ex. X at 12-13.) However, Sweeney correctly pointed out, as did the Town Board, that the negotiations to purchase additional treatment capacity from the Orange County Sewer District had not been finalized and there were potential problems with the consummation of that agreement. (Gaba Decl. Ex. X at 12-13.) Although Sweeney tried to downplay the importance of the pending lawsuit by the Village of Kiryas Joel against Orange County at the Town meeting, the Town Board indicated, both then and in its subsequent decision, that it was genuinely concerned about the Town's projected ability to obtain additional treatment capacity from the County in light of the lawsuit. That lawsuit sought to prevent Orange County from selling any additional treatment capacity to the Town of Monroe and other communities located outside Orange County Sewer District. Despite Sweeney's view that Orange County was unlikely to be enjoined from selling more treatment capacity to the Town of Monroe, in fact the County was so enjoined on August 7, 2008, less than three months after the Town denied Gryphon's petition, Village of Kiryas Joel v. County of Orange, No. 1892-07, (N.Y. Sup. Ct. Aug. 8, 2008) (Gaba Decl. Ex. Q), validating the legitimacy of the Town's prior concern over the issue.
III. CONCLUSION
Because Monroe has shown that it acted rationally in denying Gryphon's application and that Gryphon is not identical in all respects to the owners of the Dierna, Ajjan, and Pelso-Trisci lots, plaintiff is unable to prevail on its class of one equal protection claim pursuant to the Fourteenth Amendment of the Constitution. Accordingly, defendant's motion for summary judgment is granted, and plaintiff's motion for summary judgment is denied. The Clerk of Court is directed to enter judgment in Monroe's favor.
SO ORDERED.