                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  September 1, 2011
                   UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                     Clerk of Court
                               TENTH CIRCUIT



 JERRY L. PENNER, SR.,

             Plaintiff - Appellant,                     No. 11-3080
                                              (D.C. No. 5:09-CV-04108-RDR)
 v.                                                     (D. Kansas)
 CITY OF TOPEKA, KANSAS,

             Defendant - Appellee.


                          ORDER AND JUDGMENT *


Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Plaintiff and appellant, Jerry L. Penner, appeals the grant of summary

judgment to the defendant, City of Topeka, in his case alleging that the City



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
violated his rights under 42 U.S.C. § 1983 when it denied him a provisional use

request for a salvage yard license. For the following reasons, we affirm the grant

of summary judgment to the City.



                                 BACKGROUND

      We derive the uncontroverted facts from the district court’s decision.

Mr. Penner has applied to the City on numerous occasions for permission to

operate a salvage yard at 417 S.E. 13 th Street, in Topeka, Kansas. 1 In January

2003, he actually received a salvage yard permit from the City, but it was revoked

in March 2003. Mr. Penner then applied for a provisional use permit to conduct

vehicle salvage, which was denied in March 2003. He unsuccessfully sought

reconsideration of that denial. Mr. Penner then filed another application for a

salvage yard license, which was denied in September 2003. A state court

overturned the denial, but that decision was, in turn, reversed by the Kansas Court

of Appeals on August 19, 2005, which had the effect of upholding the City’s

decision to deny the license.

      On January 5, 2006, Mr. Penner filed yet another application to operate a

salvage yard on the same property, which the City denied on March 21, 2006. A

      1
      The district court described the process through which applications are
made for permits to operate salvage yards: they “are made through the city fire
department. The city fire chief makes an inspection of the location, verifies
whether the land is zoned appropriately, and reports whether the proposed salvage
yard will result in a public health or safety hazard.” Mem. & Order at 1-2.

                                         -2-
state court upheld the denial on November 17, 2006. The court noted the

following concerns about permitting Mr. Penner to operate a salvage yard at that

particular location:

             From a review of the record, it is apparent that the Topeka
      City Council relied heavily upon the report prepared by the Planning
      Department. The Planning Department’s report set forth several
      concerns, including “increased truck traffic through the
      neighborhood” which “could have a negative impact on the
      [Williams] magnet school, as well as the viability of the Brown v.
      Board of Education site.” The Planning Department found in its
      report that “[w]ith so many children and visitors coming to the area,
      safety is also a concern.” In addition, the Planning Department
      report noted that the “property does not comply with the City’s
      Subdivision Regulations.” Based on these concerns, the Planning
      Department report recommended: “Disapproval-due to illegal
      subdivision and impact upon neighborhood.”

Mem. & Order at 3. The court detailed these concerns further, indicating that “it

was reasonable for the Topeka City Council to have found that such an operation

raised legitimate safety concerns in one of the most unique neighborhoods in the

State of Kansas.” Id. at 4. Undaunted, Mr. Penner filed yet another application

on February 22, 2008, which was denied by the City on July 1, 2008.

      As the district court explained, Mr. Penner’s property is zoned for heavy

industrial use, which is compatible with use as a salvage yard. The City planning

department “recommended disapproval of [Mr. Penner’s] 2008 application based

upon compatibility with the surrounding neighborhood.” Id. at 4-5. While the

planning department would make recommendations, the ultimate decision to issue

a provisional use application is made by the City Council. There are apparently

                                        -3-
other salvage yards which dismantle automobiles in the neighborhood of Mr.

Penner’s property.

      Mr. Penner brought this action, arguing that he was denied his

constitutional rights to procedural and substantive due process and the equal

protection of the laws by the City’s denial of his request for a provisional use

permit. Eventually, the City moved for summary judgment. The district court

granted summary judgment in favor of the City, finding that Mr. Penner was

unable to demonstrate that similarly situated individuals existed who were treated

differently than Mr. Penner, and that the City’s action was reasonable. 2 This

appeal followed.



                                   DISCUSSION

      We review the district court’s grant of summary judgment de novo, using

the same legal standard as did the district court. Baca v. Sklar, 398 F.3d 1210,

1216 (10 th Cir. 2005). Summary judgment should be granted “if the pleadings,

the discovery and disclosure materials on file, and any affidavits show that there

is no genuine issue as to any fact and that the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c). Applying this standard, we view the

      2
       In so doing, the court rejected the City’s other theories supporting its
motion for summary judgment, in particular that the doctrine of res judicata
and/or the Rooker-Feldman doctrine barred Mr. Penner’s claims. On appeal,
Mr. Penner obviously challenges only the district court’s rejection of Mr.
Penner’s claim of class-of-one equal protection violation.

                                         -4-
evidence and draw all reasonable inferences from it in the light most favorable to

the nonmoving party, Mr. Penner. Baca, 398 F.3d at 1216.

      To succeed on an equal protection claim as a “class of one,” a party must

demonstrate that (1) it has been intentionally treated differently than those

similarly situated, see Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)

(per curiam), and (2) the difference in treatment was objectively irrational and

abusive, see Jicarilla Apache Nation v. Rio Arriba Cnty., 440 F.3d 1202, 1211

(10 th Cir. 2006). Class-of-one claimants must show similarity in all material

respects. See id. at 1212. This is a substantial burden. Id. at 1213. “[A] court

may properly grant summary judgment where it is clear that no reasonable jury

could find that the [similarly] situated requirement has been met.” McDonald v.

Vill. of Winnetka, 371 F.3d 992, 1002 (7 th Cir. 2004). Additionally, if there is an

objectively reasonable basis for a difference in treatment, summary judgment is

appropriate. Jicarilla, 440 F.3d at 1210. “We ask not whether the [d]efendants’

proffered justifications were sincere, but whether they were objectively

reasonable.” Id. at 1211.

      We agree with the district court’s analysis of this issue and affirm the grant

of summary judgment to the City for substantially the reasons stated in the court’s

Memorandum & Order. As the court stated, “[i]t does not appear possible that

[Mr. Penner] could establish that he was treated differently from other persons or

entities whose situations were identical in all material respects and that the

                                         -5-
difference in treatment was objectively irrational and abusive.” Mem. & Order at

14-15. 3



                                 CONCLUSION

       For the foregoing reasons, we AFFIRM the decision of the district court.

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




       3
       As we have stated before, “[f]ederal courts should be reluctant to interfere
in zoning disputes which are local concerns.” Nichols v. Bd. of Cnty. Comm’rs,
506 F.3d 962, 971 (10 th Cir. 2007) (further quotation omitted).

                                        -6-
