Opinion
02-CV-0139E(Sr)
November 24, 2003
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Seavy filed a complaint on February 20, 2002 asserting a section 1983 claim for an alleged violation of his right to equal protection under the Fourteenth Amendment of the United States Constitution. The defendants are the Village of Brocton ("Village"), the Village of Brocton Zoning Board of Appeals ("ZBA") and members of the ZBA. Defendants filed a motion for summary judgment on April 14, 2003, which was argued and submitted November 14, 2003. For the reasons set forth below, defendants' motion for summary judgment will be granted.
Rule 56(c) of the Federal Rules of Civil Procedure ("FRCvP") states that summary judgment may be granted only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In other words, upon a motion, summary judgment is mandated "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, 477 U.S. 317, 322 (1986). Summary judgment is thus appropriate where there is "no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Of course, the moving party bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970)). If the moving party makes such a showing, the non-moving party must then come forward with evidence of specific facts sufficient to support a jury verdict in order to survive the summary judgment motion. Ibid.; FRCvP 56(e).
With respect to the first prong of Anderson, a genuine issue of material fact exists if the evidence in the record "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, at 248. Stated another way, there is "no genuine issue as to any material fact" where there is a "complete failure of proof concerning an essential element of the nonmoving party's case." Celotex, at 323. Under the second prong of Anderson, the disputed fact must be material, which is to say that it "might affect the outcome of the suit under the governing law ***." Anderson, at 248.
See also Anderson, at 252 ("The mere existence of a scintilla of evidence in support of the [movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [movant].")
Furthermore, "[i]n assessing the record to determine whether there is a genuine issue as to any material fact, the district court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000) (citing Anderson, at 255). Nonetheless, mere conclusions, conjecture, unsubstantiated allegations or surmise on the part of the non-moving party are insufficient to defeat a well-grounded motion for summary judgment. Goenaga, at 18.
See footnote 2.
On March 15, 2001 Seavy entered into a contract to buy a parcel of real estate located at 116 West Main Street in the Village of Brocton ("the Property") contingent upon the issuance of a special use permit enabling him to operate a used car lot. Seavy subsequently sought a special use permit to use the Property as a used car lot. Seavy's application indicated (1) that the business would not be supervised — because a sign would be posted directing interested buyers to Seavy who would be at his business in Portland, N.Y. — and (2) that the car lot would involve between 36-40 vehicles. A public hearing was held on Seavy's request on March 29, 2001, at which time residents opposed Seavy's application. The ZBA denied Seavy's special use permit application on April 25, 2001, which decision was memorialized in a letter dated June 11, 2001. Seavy neither appealed nor filed an Article 78 proceeding in state court.
The property had been previously used as a gas station, auto dealership, auto repair garage and auto/marine upholstery shop.
A petition signed by thirty people opposed to Seavy's application was presented at the hearing.
Seavy claims in an affidavit dated September 22, 2003 that he was denied access to the April 25 ZBA meeting, which he claims was held in a "back room." Seavy Aff., ¶¶ 4-10. Seavy also claims to have been treated rudely when he was ejected from the building by ZBA members.
The ZBA denied Seavy's application on the grounds that, inter alia, (1) the proposed use would "alter the character of the neighborhood," and adversely impact property values, (2) the "space available and the number of automobiles requested on the application were not compatible", (3) space requirements and safety concerns, (4) the lack of on-site supervision and (5) public opposition.
On or about June 13, 2001 Harold Clutter submitted an application for a special use permit to use the Property as an auto repair and detail shop and for computer repairs. Clutter's application indicated that his business would be supervised during business hours. A public hearing was held on Clutter's application on July 12, 2001, at which time residents supported Clutter's application. The ZBA granted Clutter's application July 16, 2001. Clutter subsequently applied for a second special use permit to use the property for used auto sales. Clutter's application indicated that the number of cars on the lot would be limited to ten. On October 9, 2001 a public hearing was held on this application, at which time residents spoke in favor of Clutter's application. Clutter's second application was granted October 30, 2001, with the condition that he would only be permitted to have six cars for sale on the lot.
Clutter's proposed use would also have involved tire sales, lubrication services, vehicular inspections and a towing service.
An additional four parking spaces would be used by existing residential tenants.
Seavy claims that he would have accepted a six-car limitation, but that his application was denied without being offered any such limitation.
"The Equal Protection Clause requires that the government treat all similarly situated people alike." Harlen Assocs. v. Village of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) (emphasis added). In order for Seavy to prevail on his claim of selective enforcement, he must show both (1) that he was treated differently from other similarly situated individuals and (2) that such treatment was based on "impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." Indeed, "[i]n order to survive a motion for summary judgment in a selective enforcement action, a plaintiff must provide evidence that laws were not applied to him in the same way as they were to similarly situated individuals and that this plaintiff's different treatment was irrational and intentional." Whether people are similarly situated is generally a fact issue that should be submitted to a jury, nonetheless, there are instances where "a court can properly grant summary judgment where it is clear that no reasonable jury could find the similarly situated prong met." Inasmuch as Seavy does not allege selective treatment based on race, religion or exercise of constitutional rights, he must be asserting that the alleged selective treatment was based on "a malicious or bad faith intent to injure."
Harlen Assocs., at 499 (quoting La Trieste Rest. Cabaret v. Village of Port Chester, 40 F.3d 587, 590 (2d Cir. 1994)); see also Saleh v. City of Buffalo, 2003 WL 22490186, at *2 (2d Cir. 2003) (applying Harlen Assocs.).
Rossi v. City of New York, 2003 WL 22092312, at *1 (2d Cir. 2003) (citing Village of Willowbrook v. Olech, 528 U.S. 562, 565 (2000) and Harlen Assocs., at 499).
Harlen Assocs., at 499 n. 2.
Zahra v. Town of Southold, 48 F.3d 674, 683-684 (2d Cir. 1995).
Seavy has failed to demonstrate that he and Clutter were similarly situated. Seavy's application was for a used car lot of between 36-40 vehicles that lacked on-site supervision — which was not similar to Clutter's application for a used car lot of ten vehicles that was to be supervised during business operation. Indeed, Seavy's proposed use would have involved approximately 300%+ more cars than would Clutter's application. Accordingly, defendants' motion for summary judgment will be granted because Seavy failed to present any evidence that he was similarly situated with Clutter.
Although Seavy suggests that he would have accepted the six-car limitation that was imposed on Clutter, such does not undermine the ZBA's decision to deny Seavy's application for a special use permit. Indeed, Seavy's operation involved off-site supervision and public opposition that differentiated his application from Clutter's application.
MKA Realty Corp. v. Town of Walkill, 2003 WL 22273043, at *2 (2d Cir. 2003) (rejecting plaintiff's equal protection claims based on alleged selective enforcement by zoning board because plaintiff failed to show that other developers ever received a "better deal"); Rossi, supra note 13, at *2 (affirming summary judgment against a food-cart vendor who was denied multiple permits to sell food on Parks Department property on the ground that he failed to adduce evidence that other food-cart vendors were also denied multiple permits); cf. Crowley v. Courville, 76 F.3d 47, 52-53 (2d Cir. 1996) (affirming dismissal of equal protection claim because plaintiff failed to show malice or bad faith in zoning board decision to deny a parking variance because "the comparisons to which [plaintiff] points mostly reflect favorable variance rulings by the Zoning Board after an exercise of its discretion, rather than an effort (as here) to require the Zoning Board to apply a stale variance to a revised use without any discretionary deliberation concerning normally applicable considerations").
Even assuming arguendo that Seavy and Clutter were similarly situated, he would nonetheless have to demonstrate "that there is no rational basis for the difference in treatment" between him and Clutter to establish a "class of one" equal protection claim. The ZBA had several legitimate bases upon which to deny Seavy's application. Consequently, defendants' motion for summary judgment should be granted on this alternate ground as well.
Village of Willowbrook v. Olech, 528 U.S. 562, 564-565 (2000) (finding that plaintiff stated a claim because she alleged that the Village acted in a manner that was "irrational and wholly arbitrary").
See note 8 supra; Harlen Assocs., at 501 ("A zoning board's decision can be considered irrational only when the board acts `with no legitimate reason for the decision.") (internal quotations omitted); id. at 504 (noting that New York law accords zoning boards "the power to grant and deny special use permits within [their] untrammeled, but of course not capricious discretion *** with which courts may interfere only when it is clear that the Board has acted solely upon grounds which as a matter of law may not control") (citations and internal quotations omitted); Sullivan v. Town of Salem, 805 F.2d 81, 82 (2d Cir. 1986) (noting that "federal courts should not become zoning boards of appeal to review nonconstitutional land use determinations [because] [f]ederal judges lack the knowledge and sensitivity to local conditions necessary to a proper balancing of the complex factors that enter into local zoning decisions").
There is no need to address defendants' other arguments.
Accordingly, it is hereby ORDERED that defendants' motion for summary judgment is granted and that the Clerk of this Court shall dismiss this action and close this case.