09-4174-cv
Mattison v. Black Point Beach Club Assoc.


                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATIO N TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 10 th day of May, two thousand ten.

PRESENT:             JON O. NEWMAN,
                     REENA RAGGI,
                     PETER W. HALL,
                               Circuit Judges,

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FRANCES L. MATTISON,
                                 Plaintiff-Appellant,
                         v.                                             No. 09-4174-cv

BLACK POINT BEACH CLUB ASSOC., ANDREW
McKIRDY, and ANITA SCHEPKER,
                     Defendants-Appellees,

MARIANNE O’NEILL, and CHARLES BECKHAM II,
                                 Defendants.
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APPEARING FOR APPELLANT:                          THOMAS J. LONDREGAN (Patrick J. Day, on
                                                  the brief), Conway & Londregan, P.C., New
                                                  London, Connecticut.

APPEARING FOR APPELLEES:                          RALPH W. JOHNSON III (James J. Szerejko, on
                                                  the brief), Halloran & Sage LLP, Hartford,
                                                  Connecticut.
       Appeal from the United States District Court for the District of Connecticut (Robert

N. Chatigny, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on September 14, 2009, is AFFIRMED.

       Plaintiff Frances L. Mattison appeals from an award of summary judgment in favor

of defendants Black Point Beach Association, Andrew McKirdy, and Anita Schepker

(collectively, “the Association”) on her claim under 42 U.S.C. § 1983 that the Association

denied her request for an easement in violation of the Equal Protection Clause of the

Fourteenth Amendment. We review de novo an award of summary judgment and will 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 party’s entitlement to judgment as a

matter of law. See Fed. R. Civ. P. 56(c); Aulicino v. N.Y. City Dep’t of Homeless Servs.,

580 F.3d 73, 79-80 (2d Cir. 2009). In applying this standard, we assume the parties’

familiarity with the facts and the record of prior proceedings, which we reference only as

necessary to explain our decision to affirm.

       Plaintiff’s “class-of-one” equal protection claim alleges that the Association

unlawfully singled her out for arbitrary treatment when, in 2006, it denied her request for an

easement over South Trail, a “paper street” owned by the Association, after granting an

easement to the owner of a similarly situated property (the “Van Slyck property”) in 1997.

See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (recognizing that plaintiff



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states valid class-of-one equal protection claim where she “alleges that she has been

intentionally treated differently from others similarly situated and that there is no rational

basis for the difference in treatment”). Plaintiff asserts error in the district court’s conclusion

that she failed, as a matter of law, to establish that her property and the Van Slyck property

were sufficiently similar to support her claim. We are not persuaded.

       A class-of-one plaintiff must show, among other things, “an extremely high degree

of similarity” between herself and alleged comparators in order to succeed on an equal

protection claim. Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006); accord

Doninger v. Niehoff, 527 F.3d 41, 53 (2d Cir. 2008). To succeed on such a claim, the

plaintiff must demonstrate that (1) “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 (2) “the similarity in

circumstances and difference in treatment are sufficient to exclude the possibility that the

defendants acted on the basis of a mistake.” Clubside, Inc. v. Valentin, 468 F.3d at 159

(internal quotation marks omitted).

       Here, the district court found, and plaintiff does not dispute, that the Van Slyck

property was landlocked, i.e., it had no access to public roads, when the Association granted

its owner an easement. By contrast, plaintiff’s property was not landlocked at the time she

requested an easement. Like the district court, we conclude that this difference alone

precludes a reasonable person from finding that plaintiff and her comparator are similarly



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situated. See Clubside, Inc. v. Valentin, 468 F.3d at 159; see also Cordi-Allen v. Conlon,

494 F.3d 245, 251 (1st Cir. 2007) (“The ‘similarly situated’ requirement must be enforced

with particular rigor in the land-use context because zoning decisions ‘will often, perhaps

almost always, treat one landowner differently from another.’” (quoting Village of

Willowbrook v. Olech, 528 U.S. at 565 (Breyer, J., concurring))). Indeed, the record reflects

the Association’s concern that denying the Van Slyck easement might provoke legal action

seeking an easement by necessity in light of the property’s landlocked status. No such

concern was raised a decade later by plaintiff’s request. See Neilson v. D’Angelis, 409 F.3d

100, 105 (2d Cir. 2005) (observing that level of similarity must be sufficient to support

inference that “plaintiff was intentionally singled out for reasons that so lack any reasonable

nexus with a legitimate governmental policy that an improper purpose – whether personal

or otherwise – is all but certain”), overruled on other grounds by Appel v. Spiridon, 531 F.3d

138 (2d Cir. 2008).

       Plaintiff does not dispute these facts. Rather, she argues that the district court should

have compared the Van Slyck property to a one-acre lot plaintiff planned to split from her

4.5-acre property, not to the undivided whole. The planned one-acre lot was landlocked,

plaintiff argues, and therefore “was not only ‘similarly situated’ – it was identical to the [Van

Slyck] property.” Appellant’s Br. at 9. The argument fails because, whatever rights plaintiff

may have had to split the property at some point in the future, the landlocked parcel she




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describes on appeal did not exist at the time of her request for an easement or, so far as the

record indicates, at any point during the proceedings below or on appeal.

       On this record, the district court properly concluded that plaintiff failed, as a matter

of law, to demonstrate that she and the owner of the Van Slyck property were similarly

situated to the degree necessary to support a class-of-one claim. Because we conclude that

plaintiff’s claim fails on this ground, we, like the district court, need not determine whether

the Association’s denial of plaintiff’s request constituted state action.

       We have considered plaintiff’s remaining arguments on appeal and conclude that they

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

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




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