     09-1861-cv
     Landmark Dev. Group, LLC v. Town of E. Lyme

                          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 .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 10 th day of March, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                GUIDO CALABRESI,
 9                              Senior Circuit Judge,
10                CHRISTOPHER F. DRONEY, *
11                              District Judge.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       Landmark Development Group, LLC,
15       Jarvis of Cheshire LLC, Lisa Clemons,
16       Susan Barlow,
17                Plaintiffs-Appellants,
18
19                    -v.-                                               09-1861-cv
20
21       Town of East Lyme, Wayne L. Fraser,
22       First Selectman, East Lyme Water &
23       Sewer Commission, East Lyme Zoning
24       Commission, Frederick G. Thumm,
25       Director of Public Works, Margaret
26       Parulis, Land Use Planner, George
27       Calkins, Sanitarian,
28                Defendants-Appellees.
29       - - - - - - - - - - - - - - - - - - - -X


                *
               Christopher F. Droney, Judge of the United States
         District Court for the District of Connecticut, sitting by
         designation.

                                                  1
 1   APPEARING FOR APPELLANTS:   CHRISTOPHER ROONEY, Carmody &
 2                               Torrance LLP, New Haven, CT
 3                               (John C. Brittain, Alexandria,
 4                               VA, on the brief).
 5
 6   APPEARING FOR APPELLEES:    NICOLE D. DORMAN, Karsten,
 7                               Dorman & Tallberg, LLC, West
 8                               Hartford, CT (Deborah Etlinger,
 9                               Michelle Himes-Wiederschall,
10                               Wolf, Horowitz, Etlinger & Case,
11                               LLC, Hartford, CT, on the
12                               brief).
13
14        Appeal from a judgment of the United States District
15   Court for the District of Connecticut (Chatigny, J.).
16
17        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
18   AND DECREED that the judgment of the district court be
19   AFFIRMED.
20
21        Plaintiffs appeal from two orders of the United States
22   District Court for the District of Connecticut (Chatigny,
23   J.), one entered February 5, 2008 denying their motion to
24   amend a scheduled pleading-amendment deadline, and the other
25   entered March 31, 2008 dismissing their complaint for
26   failure to state a claim. Plaintiffs Landmark Development
27   Group, LLC and Jarvis of Cheshire, LLC are real-estate
28   developers who own property in the Oswegatchie Hills area of
29   East Lyme, Connecticut. Their applications to develop it as
30   affordable housing were rejected by municipal authorities.
31   They and others assert, inter alia, § 1983 claims for denial
32   of their federal constitutional rights to substantive and
33   procedural due process, and equal protection. We otherwise
34   assume familiarity with the underlying facts, the procedural
35   history, and the issues presented for review.

36        Plaintiffs contest the dismissal of their § 1983 claims
37   alleging violation of substantive due process, procedural
38   due process, and equal protection. We review orders
39   dismissing claims pursuant to Rule 12(b)(6) of the Federal
40   Rules of Civil Procedure de novo. Turkmen v. Ashcroft, 589
41   F.3d 542, 546 (2d Cir. 2009) (per curiam).

42        As to dismissal of the § 1983 substantive and
43   procedural due process claims, we conclude that there was no
44   error. Plaintiffs were required to allege infringement of a

                                  2
 1   property interest to which they had a “legitimate claim of
 2   entitlement.” Bd. of Regents of State Colleges v. Roth, 408
 3   U.S. 564, 576 (1972); see also, e.g., DLC Mgmt. Corp. v.
 4   Town of Hyde Park, 163 F.3d 124, 130 (2d Cir. 1998)
 5   (applying same requirement to substantive due process
 6   analysis). None of the three interests asserted satisfies
 7   this requirement.
 8
 9       [1] Plaintiffs had no legitimate claim of entitlement
10       to a sewer-extension permit. Defendants plainly have
11       discretion to deny such permits. E.g., Forest Walk,
12       LLC v. Water Pollution Control Authority, 968 A.2d 345,
13       353 (Conn. 2009). And this discretion defeats
14       Plaintiffs’ claim. See Clubside, Inc. v. Valentin, 468
15       F.3d 144, 153-54 (2d Cir. 2006) (only if [1] the agency
16       “lacks discretion to deny the permit” or [2] “the
17       discretion of the issuing agency is so narrowly
18       circumscribed that approval of a proper application is
19       virtually assured” and “there was a strong likelihood
20       of issuance,” is a claim of entitlement legitimate).
21
22       [2] Plaintiffs had no legitimate claim of entitlement
23       to a sewer-connection permit. Though Plaintiffs allege
24       the existence of a “sewer-shed map” that entitles them
25       to such a permit as of right, the municipality’s legal
26       discretion to deny it is at least arguable. See, e.g.,
27       East Lyme, Conn., Sewer Use & Sewage Disposal Ordinance
28       § 3.15 (Mar. 17, 1991) (granting to the East Lyme Water
29       & Sewer Commission the power to “revoke or annul[]” any
30       sewer-connection permit “for such cause and at such
31       times as the Commission may deem sufficient”). An
32       arguable claim of entitlement is not a “legitimate
33       claim of entitlement.” “[U]ncertainty as to the
34       meaning of applicable law . . . suffices to defeat a
35       landowner’s claim of entitlement.” Clubside, 468 F.3d
36       at 153 (internal quotation marks omitted).
37
38       [3] Even crediting Plaintiffs’ claim of entitlement to
39       water from the Town of Waterford, Plaintiffs allege no
40       denial of that right by Defendants--only that
41       Defendants “falsely” advised the Zoning Commission that
42       Plaintiffs had no right to access “municipal water.”
43       Plaintiffs have thus failed to “plead[] factual content
44       that allows the court to draw the reasonable inference
45       that the defendant is liable for the misconduct
46       alleged.” See Turkmen, 589 F.3d at 546.

                                    3
 1
 2        As to dismissal of the § 1983 equal protection claim,
 3   we likewise find no error. To succeed on a “class-of-one”
 4   equal protection claim, Plaintiffs are required to show an
 5   “extremely high degree of similarity” between themselves and
 6   a differently treated comparate. Clubside, 468 F.3d at 159.
 7   Plaintiffs cite a “high intensity, multi-family development
 8   of 600 units” (Darrell Pond), and a hotel (Konover).
 9   Neither is sufficiently similar to Plaintiffs’ proposed
10   residential development of “approximately 1,700 units,” to
11   permit the “reasonable inference that the defendant is
12   liable for the misconduct alleged,” Turkmen, 589 F.3d at
13   546. Cf. Clubside, 468 F.3d at 160 (finding, on summary
14   judgment, that 28 single-family homes were insufficiently
15   similar to 288 duplex/triplex townhouses).
16
17        Having affirmed the district court’s dismissal of
18   Plaintiffs’ claims, we need not address Plaintiffs’
19   assignments of error to the order denying their motion to
20   amend the scheduling order. Thus, finding no merit in
21   Plaintiffs’ remaining arguments, we hereby AFFIRM the
22   judgment of the district court.
23
24
25                              FOR THE COURT:
26                              CATHERINE O’HAGAN WOLFE, CLERK
27
28
29




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