     14-4652-cv
     Abramson v. Gettel

                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 24th day of June, two thousand fifteen.
 5
 6       PRESENT: JON O. NEWMAN,
 7                DENNIS JACOBS,
 8                REENA RAGGI,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       JERYL ABRAMSON, YASGUR ROAD
13       PRODUCTIONS, LLC,
14                Plaintiffs-Appellants,
15
16                    -v.-                                               14-4652-cv
17
18       BETTE JEAN GETTEL, GREGG SEMENETZ,
19       DANIEL STURM, TOWN OF BETHEL,
20                Defendants-Appellees.
21       - - - - - - - - - - - - - - - - - - - -X
22
23       FOR APPELLANTS:                       RUSSELL A. SCHINDLER, Kingston,
24                                             New York.
25
26       FOR APPELLEES:                        NICHOLAS ANTHONY PASCALE, Drake
27                                             Loeb, PLLC, New Windsor, New
28                                             York.

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 1
 2        Appeal from a judgment of the United States District
 3   Court for the Southern District of New York (Román, J.).
 4
 5        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 6   AND DECREED that the judgment of the district court be
 7   AFFIRMED.
 8
 9        Jeryl Abramson and Yasgur Road Productions, LLC
10   (jointly, “Appellants”) appeal from the judgment of the
11   United States District Court for the Southern District of
12   New York (Román, J.), dismissing, pursuant to Federal Rule
13   of Civil Procedure 12(b)(6), their claim against the Town of
14   Bethel, New York, and several Town officials (together, the
15   “Town”). Appellants challenge a fine that the Town issued
16   for using this property to host a music concert without
17   first obtaining a permit. We assume the parties’
18   familiarity with the underlying facts, the procedural
19   history, and the issues presented for review.
20
21        In 1971, Abramson and Roy Howard, her former spouse,
22   purchased a portion of Yasgur Farm, which was the site of
23   the historic Woodstock music festival. Since purchasing the
24   property, Abramson has hosted a series of Woodstock reunion
25   concerts without first obtaining the necessary permits from
26   the Town, see Town of Bethel v. Howard, 944 N.Y.S.2d 390,
27   391 (App. Div. 2012), and continued doing so even after a
28   1997 injunction. In 2007, the Town and Abramson entered
29   into a consent order that bound the parties to the terms of
30   the 1997 injunction. The consent order required Abramson to
31   seek and receive a special use permit before hosting any
32   Woodstock-themed event on the property, and provided for
33   liquidated damages of $25,000 for failure to comply. In
34   2011, Abramson advertised an event without first obtaining a
35   special use permit, and the Town responded by assessing a
36   $25,000 fine in accordance with the terms of the consent
37   order.
38
39        G&B Real Property LLC (“G&B”) also owns property in the
40   Town and hosts similar Woodstock reunion events despite
41   being zoned in a strictly commercial district. G&B hosted a
42   concert in 2011 and the Town issued G&B “camping violations”
43   for this event but did not otherwise prosecute G&B or pursue
44   civil enforcement. G&B hosted similar events the following
45   two years, but the Town took no action against G&B.
46   Abramson alleges that G&B has received more favorable
47   treatment from the Town than has Yasgur Farm, and that

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 1   Abramson suffered economic and reputational injury from this
 2   disparate treatment.
 3
 4        We review de novo a district court's dismissal of a
 5   complaint pursuant to Rule 12(b)(6). Wilson v. Dantas, 746
 6   F.3d 530, 535 (2d Cir. 2014). A complaint must include
 7   “enough facts to state a claim to relief that is plausible
 8   on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
 9   (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678
10   (2009).
11
12        Abramson brings a “class of one” equal protection
13   claim, which requires a plaintiff to allege that it “has
14   been intentionally treated differently from others similarly
15   situated and that there is no rational basis for the
16   difference in treatment.” Analytical Diagnostic Labs, Inc.
17   v. Kusel, 626 F.3d 135, 140 (2d Cir. 2010) (internal
18   quotation marks omitted). The plaintiff must identify at
19   least one comparator with whom it shares “an extremely high
20   degree of similarity” sufficient to “provide an inference
21   that the plaintiff was intentionally singled out for reasons
22   that so lack any reasonable nexus with a legitimate
23   governmental policy that an improper purpose –- whether
24   personal or otherwise –- is all but certain.” Clubside,
25   Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006) (internal
26   quotation marks omitted).
27
28        Abramson has not plausibly alleged that “properties
29   sufficiently similar to [hers] were treated more favorably”
30   by the Town. Ruston v. Town Bd. for Skaneateles, 610 F.3d
31   55, 60 (2d. Cir. 2010). The chief distinction between
32   Yasgur Farm and the comparator G&B property is Abramson’s
33   consent order. G&B is not subject to an agreement similar
34   to the consent order and may seek a variance from its zoning
35   restrictions at any time. The disparate treatment is a
36   result of Abramson’s own actions and willingness to enter
37   into the 2007 consent order.
38
39        Additionally, Yasgur Farm and G&B’s property are
40   governed by different zoning regulations. Yasgur Farm is in
41   an agricultural district that requires a special use permit
42   for any “open–air concert venues.” (Compl. ¶ 24; see id.
43   ¶ 17.) G&B operates within the “G-17B Gateway Commercial
44   District” (id. ¶ 22), which may bar recreational activity in
45   the first instance, but G&B may seek a variance to lawfully
46   host an event at any time. G&B is therefore not subject to
47   the same restrictions as Yasgur Farm. While Yasgur Farm

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 1   must seek prior approval through a special use permit, G&B
 2   need not, as it is subject to different requirements.
 3
 4        For the foregoing reasons, and finding no merit in
 5   Abramson’s other arguments, we hereby AFFIRM the judgment of
 6   the district court.
 7
 8                              FOR THE COURT:
 9                              CATHERINE O’HAGAN WOLFE, CLERK
10




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