10-3001-cv
Conde v. Town of Sharon, 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 court’s 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 “summary order”). 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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 29th day of April, two thousand eleven.

PRESENT:
                 ROBERT D. SACK,
                 PETER W. HALL,
                 DEBRA ANN LIVINGSTON,
                            Circuit Judges.

_____________________________________________

PILAR CONDE,
                                            Plaintiff-Appellant,

                           v.                                                   No. 10-3001-cv

TOWN OF SHARON; THE BOARD OF SELECTMEN, TOWN OF SHARON; MALCOLM BROWN, I/O First
Selectman of Board; THOMAS H. BARTMAN, I/O Selectman of Board; and JOHN B. MATHEWS,
I/O Selectman of Board,
                                 Defendants-Appellees.
______________________________________________

FOR PLAINTIFF-APPELLANT:                             BARRIE L. GOLDSTEIN, Barrie L. Goldstein, LLC,
                                                     (Kenneth R. Slater, Jr., Of Counsel, on the brief),
                                                     Washington Depot, Connecticut.

FOR DEFENDANTS-APPELLEES:                            FREDERICK M. O’BRIEN, Regnier, Taylor, Curran &
                                                     Eddy, Hartford, Connecticut.
       Appeal from a judgment of the United States District Court for the District of

Connecticut (Covello, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

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

       In this dispute arising from the Town of Sharon’s refusal to concede to plaintiff’s request

for permission to erect a gate across the town’s recreational easement, plaintiff Pilar Conde

appeals principally from the district court’s decision granting summary judgment for the

defendants on her procedural and substantive due process claims. Conde also appeals the district

court’s denial of her cross-motion for summary judgment and its dismissal of her state law

claims without prejudice. We assume the parties’ familiarity with the underlying facts and

procedural history of the case.

I.     Discussion

       We review a district court’s grant of summary judgment de novo. Roe v. City of

Waterbury, 542 F.3d 31, 35 (2d Cir. 2008). Summary judgment is appropriate if “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a).

       A.      Procedural Due Process Claim

       In order to claim a violation of her right to due process, Conde must first establish that

she had a constitutionally protected property interest at stake. In land use cases, we employ an

“entitlement” inquiry to determine whether the landowner has a legitimate claim of entitlement

to the sought after land use. See RRI Realty Corp. v. Inc. Vill. of Southampton, 870 F.2d 911,

918 (2d Cir. 1989); see also Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 58-59 (2d Cir. 1985)

(explaining that 42 U.S.C. § 1983 does not “guarantee a person the right to bring a federal suit


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for denial of due process in every proceeding in which he is denied a license or a permit,” lest

the federal courts be “overburdened . . . beyond capacity”).

       Thus, to establish a legitimate property interest entitled to Fourteenth Amendment

procedural due process protection, a plaintiff must demonstrate that she has a “legitimate claim

of entitlement” to that property interest. Id. at 58 (quoting Board of Regents v. Roth, 408 U.S.

564, 577 (1972)). She does so by showing that “absent the alleged denial of due process, there is

either a certainty or a very strong likelihood that the application would have been granted.” Id.

at 59. See also RRI Realty, 870 F.2d at 917-18 (affirming Yale Auto Parts entitlement inquiry

for land use regulation cases); see also Clubside, Inc. v. Valentin, 468 F.3d 144, 152-54 (2d Cir.

2006); Zahra v. Town of Southold, 48 F.3d 674, 680 (2d Cir. 1995). “Application of the test

must focus primarily on the degree of discretion enjoyed by the issuing authority.” RRI Realty,

870 F.2d at 918. Where there is a high degree of official discretion in whether to grant or deny

an application for a particular land use, a plaintiff cannot show the requisite “certainty”

necessary to demonstrate a legitimate claim of entitlement to that use and thereby establish that a

constitutionally protected property interest is at stake. See, e.g., Kelly Kare, Inc. v. O’Rourke,

930 F.2d 170, 175 (2d Cir. 1991) (“If the statute, regulation, or contract in issue vests in the state

significant discretion over the continued conferral of that benefit, it will be the rare case that the

recipient will be able to establish an entitlement to that benefit.”).

       Even assuming the town’s decision regarding Conde’s request for permission to construct

a gate across the town’s easement rises to the level of state action for purposes of her due process

claims, Conde has not asserted, much less established, a constitutionally protected property right.

Conde herself states in her briefing on appeal that this case boils down merely to “a dispute


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between a landowner, Conde, and the Town, her neighbor” Appellant’s Br. at 3. In this respect,

Conde states that the town lacks the authority unilaterally to determine whether the gate she

proposes to construct infringes on the town’s easement, as this determination is the province of

the Connecticut state courts. Id. at 15. Conde asserts that she “ha[s] every right to construct the

proposed vehicular gate without the Town’s permission.” Id. at 19; cf. Ctr. Drive-In Theatre,

Inc. v. City of Derby, 352 A.2d 304, 307 (Conn. 1974) (noting that “[t]he owner of land over

which an easement has been granted has, by law, all the rights and benefits of ownership

consistent with the existence of an easement,” whereas “[t]he owner of an easement has all rights

incident or necessary to its proper enjoyment, but nothing more”). Conde, therefore, sought

solely the town’s acquiescence to the proposed gate—acquiescence that the town had full

discretion to decline to grant. Accordingly, because Conde does not claim a legitimate

entitlement to the town’s consent to her construction of the gate, she has failed to allege a

protected property right of constitutional proportions. See, e.g., RRI Realty, 870 F.2d at 918.

       B.      Substantive Due Process

       “Substantive due process protects individuals against government action that is arbitrary,

conscience-shocking, or oppressive in a constitutional sense, but not against government action

that is incorrect or ill-advised.” Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir. 1994) (internal

quotation marks and citations omitted). “Moreover, government action might be so arbitrary that

it violates substantive due process regardless of the fairness of the procedures used.” Id.

(internal quotation marks omitted). The first step when determining whether a plaintiff has

advanced a valid substantive due process claim “is to identify the constitutional right at stake.”

Id. In the absence of a constitutionally protected right, as noted above, Conde’s substantive due


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process claim must also fail. Furthermore, even if there were a constitutionally protected right at

issue, Conde has failed to point to any facts establishing that the town’s conduct with respect to

her request to build a gate was arbitrary, conscience-shocking, or oppressive. The district court

correctly granted summary judgment for the defendants on this count as well.

II.    Conclusion

       We have considered all of Conde’s remaining arguments and conclude that they are

without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.



                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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