16-44-cv Beard v. Town of Monroe, et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 9th day of December, two thousand sixteen.

PRESENT: JOHN M. WALKER, JR., DENNY CHIN, SUSAN L. CARNEY, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

THOMAS BEARD, Plaintiff‐Appellant,

v. 16‐44‐cv

TOWN OF MONROE, PLANNING AND ZONING COMMISSION OF THE TOWN OF MONROE, JOSEPH CHAPMAN, Defendants‐Appellees.

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FOR PLAINTIFF‐APPELLANT: Ian A. Cole, Cohen & Thomas, Derby, Connecticut.

FOR DEFENDANTS‐APPELLEES: Michael T. Ryan, Jonathan C. Zellner, Ryan Ryan Deluca LLP, Stamford, Connecticut. Appeal from the United States District Court for the District of

Connecticut (Arterton, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff‐appellant Thomas Beard appeals from a judgment entered on December

7, 2015, granting summary judgment in favor of defendants‐appellees Town of Monroe

(the ʺTownʺ), its Planning and Zoning Commission, and Zoning Enforcement Officer

(ʺZEOʺ) Joseph Chapman. Beard brought suit under

alleging that

defendants violated his Equal Protection rights under the Fourteenth Amendment by

enforcing zoning restrictions against him while failing to enforce the same restrictions

against other individuals who purportedly were similarly situated.

We review de novo an award of summary judgment and affirm only if the

record, viewed in the light most favorable to the non‐moving party, reveals no genuine

issue as to any material fact and the moving partyʹs entitlement to judgment as a matter

of law. See Fed. R. Civ. P. 56(c); Aulicino v. N.Y. City Depʹt of Homeless Servs.,

,

79‐80 (2d Cir. 2009). We assume the partiesʹ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

1. Background

Beard owns five acres of land in Monroe, Connecticut, within a

Residential and Farming District D Zone (ʺRD Zoneʺ). As a result, the land is subject to

‐ 2 ‐ numerous restrictions on its use, including limitations on the size of dwellings and the

activities that may be performed on the property.1 Beard used the land to operate

numerous businesses, including excavation, trucking and hauling, salvage, loam,

demolition, and plowing. He stored three hydraulic excavators, three plow trucks, four

trailers, a truck tractor, a dump truck, a bulldozer, a bucket loader, a John Deere tractor,

three back hoes, a loader backhoe, a Bobcat, and a site truck on his property.

On appeal, Beard alleges that the Town did not enforce the zoning

regulations against the owners of two other properties in Monroe, who he contends

were engaged in similar activities. The first property, owned by Kenneth Twombly, is

eleven acres and is in a Residential and Farming District C Zone.2 Twombly uses his

property to grow trees and sell compost and mulch, for which he has a state license.

While there was deposition testimony that Twombly sold topsoil in the past, Chapman

testified that Twombly had stopped doing so by the time of this suit. Twombly never

1 Specifically, land, buildings and other structures located in RD Zones are limited to, among other things: ʺA. A single detached dwelling for one (1) family, and not more than one (1) such dwelling per lot. B. Farms, nurseries, and greenhouses. C. Roadside farm stands exclusively for the sale of farm produce grown on the premises,ʺ and a variety of other purposes, as provided by permit. Monroe Zoning Regulations, Art. III Residential and Farming District C, Section 117‐301 A‐C, Art. IV Residential and Farming District D, Sections 117‐400, 401. In addition, no ʺcommercial or combination registered vehicleʺ stored on the property can exceed a one ton capacity and ʺtruck‐tractors, commercial semi‐trailers, and/or commercial trailersʺ cannot be parked or stored on RD Zone properties. Monroe Zoning Regulations, Art. III Residential and Farming District C, Section 117‐301 L(3). Finally, the properties are not permitted to have more than ʺone (1) commercial or combination registered vehicle bearing commercial advertising parked or stored on the premisesʺ and ʺ[a]ny commercial or combination registered vehicle showing commercial advertising shall be garaged or suitably screened.ʺ

2 Regulations for RC Zones are identical to those for RD Zones, except that RD Zone restrictions impose

additional limitations as to lot size. See Monroe Zoning Regulations, Art. III Residential and Farming District D.

‐ 3 ‐ operated an excavation, trucking, hauling, snowplowing, scrap metal salvage, or

demolition business on his property. He maintains an excavator, a John Deere bucket

loader, a screener, and a site truck on his property. His neighbors did not file any

complaints about his business with the town Zoning Commission.

The second property, owned by Blakeman Smith, is also eleven acres and

in an RD Zone. Smith uses his land for logging, selling topsoil, raising cows, chickens,

goats, horses, and pigs. He also has an excavation business. He previously sold topsoil,

but stopped doing so between six and eight years ago. He stores six excavators, two

farm trucks, one dump truck, two screeners, and five loaders on the property. One

neighbor filed complaints with the Zoning Commission against his business in 2008.

According to Beard, sometime in 2007, his neighbors Michael and Teresa

Bauer (the ʺBauersʺ) complained about Beardʹs activities on his property. A different

ZEO investigated the complaint and determined that Beardʹs activities were preexisting

nonconforming uses. The ZEO did not issue a cease and desist order.

Undeterred, on June 1, 2010, the Bauers filed a civil suit in Connecticut

state court against Beard for zoning regulation violations and private nuisance. On

April 15, 2011, the state court issued a temporary injunction ordering that Beard cease

and desist from a number of activities, including operating any commercial business on

his property in violation of the town zoning regulations. The court also enjoined Beard

‐ 4 ‐ from parking or storing commercial vehicles exceeding a one‐ton capacity on his

property.

On May 10, 2011, Chapman issued a cease and desist letter directing Beard

to comply with the state court decision. Specifically, Beard was instructed to cease and

desist from operating any excavation, snowplowing, trucking and hauling, scrap metal

salvage or demolition business, or from engaging in the production for sale of loam or

topsoil.

On May 26, 2011, Beard appealed the cease and desist letter to the Townʹs

Zoning Board of Appeals (the ʺBoardʺ). On July 5, 2011, his appeal was denied.

On June 30, 2011, the Town and Chapman moved to intervene in the state

court suit brought by the Bauers seeking enforcement of zoning regulations against

Beard. On July 14, 2011, the court granted their motion.

On July 21, 2011, Beard filed suit in state court appealing the Boardʹs

decision to deny his appeal, which was then consolidated with the Bauer suit.

On April 18, 2012, the state court ruled in favor of the Bauers and the

Town and issued a permanent injunction against Beard prohibiting him from operating

any excavation, hauling, snowplowing, scrap metal salvage, or demolition business,

mining or quarrying, selling third parties loam or top soil, handling hazardous material

on his property, or parking or storing more than one commercially registered vehicle on

his property. Beard did not appeal.

‐ 5 ‐ In October 2013, Beard filed suit in state court alleging that owners of

other properties in Monroe were similarly situated, but not being subjected to zoning

enforcement actions. Defendants removed the suit to federal court. Defendants then

moved for summary judgment. The district court granted the motion

by order dated December 4, 2015. This appeal followed.

2. Discussion

We affirm the district courtʹs grant of summary judgment dismissing

Beardʹs claims substantially for the reasons given in its ruling. We address two

arguments Beard raises on appeal. First, he argues that the district court erred in

finding that other land owners engaging in similar activities were not similarly situated

for the purposes of establishing a ʺclass of oneʺ Fourteenth Amendment claim. Second,

he argues that the district court erred in finding that the Townʹs intervention in the

Bauersʹ state court suit did not affect the outcome of that suit.

Beard brings his Equal Protection claim under a ʺclass‐of‐oneʺ theory,

arguing that the Town violated his Fourteenth Amendment rights by prohibiting loam

manufacturing on his property while permitting others to engage in the same activity

on their properties. As this Court has held, ʺa class‐of‐one claim exists ʹwhere the

plaintiff alleges that she has been intentionally treated differently from others similarly

situated and that there is no rational basis for the difference in treatment.ʹʺ Analytical

‐ 6 ‐ Diagnostic Labs, Inc. v. Kusel,

(2d Cir. 2010) (quoting Village of

Willowbrook v. Olech,

(2000)).

Under this theory, the plaintiff bears the burden of showing:

(i) 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 (ii) the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendants acted on the basis of a mistake.

(internal quotations and citations omitted); see also Clubside, Inc. v.

Valentin,

(2d Cir. 2006). Class‐of‐one plaintiffs must show ʺan

extremely high degree of similarity between themselves and the persons to whom they

compare themselves.ʺ Clubside,

; see also Doninger v. Niehoff,

(2d Cir. 2008); Cordi‐Allen v. Conlon,

(1st Cir. 2007) (ʺThe ʹsimilarly

situatedʹ requirement must be enforced with particular rigor in the land‐use context

because zoning decisions ʹwill often, perhaps almost always, treat one landowner

differently from another.ʹʺ (quoting Olech,

(Breyer, J. concurring))).

Beard does not satisfy this high standard of similarity. First, a reasonable

factfinder could only conclude that Twombly and Beard were not similarly situated.

Beard engaged in a number of non‐conforming activities on his property that Twombly

did not engage in on his property. These included storing multiple vehicles over one

ton in capacity (Beard has eight), and conducting excavation, trucking and hauling,

‐ 7 ‐ salvage, demolition, and snow plowing businesses. None of these are permitted under

the zoning restrictions. While Twombly sold compost and mulch, he did so with a

permit. Beard also generated significantly more neighborhood opposition than

Twombly.

Second, as for Smith, a reasonable factfinder likewise could only find that

Smith and Beard were not similarly situated. The district court noted that while there

were similarities between the activities on Beardʹs and Smithʹs properties, including pre‐

existing non‐conforming uses, there were also significant differences. While Smith ran

an excavation business and created topsoil on his property, he had not regularly sold

topsoil or loam since approximately 2009. His primary business was farming, including

raising farm animals. He had never operated a trucking or hauling business, scrap

metal business, or demolition business on the property. While Smithʹs neighbor also

registered complaints against him, the complaints were not as numerous as those

against Beard. Thus, the record demonstrates that Smith and Beard were not

sufficiently similar to support a finding that the Town improperly denied pre‐existing

use status to Beard.

Because we find that Beard has failed to establish a cognizable claim

under the Fourteenth Amendment, we need not reach his second argument on the issue

of causation.

‐ 8 ‐ We have reviewed Beardʹs remaining arguments on appeal and conclude

they are without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

‐ 9 ‐