United States Court of Appeals For the First Circuit
No. 06-2300
BARBARA CORDI-ALLEN AND JOHN ALLEN,
Plaintiffs, Appellants,
v.
JOSEPH R. CONLON ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Lynch, Circuit Judge, Selya, Senior Circuit Judge, and Lipez, Circuit Judge.
Paul Revere, III for appellants. Deborah I. Ecker, with whom Leonard H. Kesten, Deidre Brennan Regan, and Brody, Hardoon, Perkins & Kesten, LLP, were on brief, for appellees.
July 27, 2007 SELYA, Senior Circuit Judge. Land-use restrictions often
set neighbor against neighbor, and can be a source of considerable
turmoil in otherwise tranquil communities. So it is here: Barbara
Cordi-Allen and her husband John Allen (the Allens) are landowners
in the Cape Cod town of Truro, Massachusetts (the Town). They own
a waterfront lot and wish to improve it. They have thus far been
stymied in their efforts by a series of zoning, environmental, and
licensing restrictions.
The Allens accuse the Town of singling them out for
unfavorable treatment and thwarting their plans. The Town, with
equal fervor, accuses the Allens of seeking advantages to which
they are not entitled. The ill will has spread like a malignant
growth and has come to envelop several of the Allens' neighbors.
After many years of travail, the Allens elevated the feud
to constitutional proportions: they condensed their grievances into
a so-called "class of one" claim, alleging that the disparate
treatment they had received infringed their rights under the Equal
Protection Clause. See U.S. Const. amend. XIV. The Town heatedly
denied these allegations. The district court sided with the Town
and granted summary judgment in its favor. See Cordi-Allen v.
Conlon, No. 1:05-cv-10370, 2006 WL 2033897, at *8 (D. Mass. July 19,
2006).
We are called upon to review that order. In doing so, we
take the supported facts in the light most favorable to the
-2- nonmovants (here, the Allens). Cabán Hernández v. Philip Morris
USA, Inc., 486 F.3d 1, 8 (1st Cir. 2007).
The events surrounding this case are byzantine, and a
full recitation would serve no useful purpose. Thus, we offer only
a decurtate summary, supplemented as needed in the course of our
analysis of the relevant legal issues. We urge readers who hunger
for more detailed information to consult the district court's
comprehensive opinion (which even the Allens, at oral argument
before us, commended as doing "a good job of gleaning the facts").
This controversy dates back to March of 1996, when the
Allens purchased a piece of waterfront property in Truro. The
parcel abuts properties owned by Brooke Newman, Sarah Landis, and
the Pamet Harbor Yacht Club. Other neighbors in relatively close
proximity include the Sextons and the Perrys.
The Allens' lot is undersized. The only improvements on
it as of the date of acquisition were a small 400-square-foot
cottage and a short pier.1 The Allens aspired to build a compound.
Their plans contemplated erecting a new 1,512-square-foot dwelling
with an attached 1,750-square-foot garage on a solid foundation with
crawl space drainage; expanding the existing cottage (originally
built as a boathouse) into a 640-square-foot residence; and
installing a large swimming pool with adjacent decks. To top
1 The Town subsequently took the tidelands around the pier in an eminent domain proceeding. The Allens have retained an easement encompassing the pier.
-3- matters off, the Allens proposed to install floats as a means of
extending their existing pier.
A number of disagreements arose with respect to the
Allens' plans. These included disputes about the interpretation and
application of zoning laws and environmental restrictions. The
controversy soon extended to the licensing of the proposed floats.
The Allens characterize all of this as obstructive
behavior. They protest that it stands in stark contrast to the
accommodations lavished on other residents. Their next-door
neighbor, Newman, is the poster child for the claim of unequal
treatment. In addition, they insist that Landis, the Sextons, and
the yacht club all have received more favorable receptions from the
Town.
Frustrated by these perceived inequities, the Allens
filed suit in a Massachusetts state court in February of 2005.
Their complaint contained five counts. The first, third, fourth,
and fifth counts are not relevant here. The sole count with which
we are concerned — count 2 — invoked 42 U.S.C. § 1983 and alleged
that the Town had denied the Allens equal protection of the laws.
On the basis of the equal protection claim, the
defendants removed the case to the federal district court. See 28
U.S.C. §§ 1331, 1441. In due course, the Town moved for summary
judgment with respect to count 2. See Fed. R. Civ. P. 56. The
district court concluded that the Allens had not shown that the Town
-4- had treated them differently from similarly situated parties and
entered judgment on the equal protection claim. See Cordi-Allen,
2006 WL 2033897, at *8. It then remanded the remaining counts to
the state court. See id.; see also 28 U.S.C. § 1367(c).
This timely appeal ensued. We have appellate
jurisdiction notwithstanding the remand. The rule is that when a
district court enters a final judgment on all the federal claims
then pending in a civil action and contemporaneously remands all
remaining claims to a state court, immediate appellate review of
that collateral order is available. See Christopher v. Stanley-
Bostitch, Inc., 240 F.3d 95, 99 (1st Cir. 2001) (per curiam).
The applicable standard of review is familiar. We
appraise a grant of summary judgment de novo. Galloza v. Foy, 389
F.3d 26, 28 (1st Cir. 2004). We are not wed to the district court's
rationale but, rather, may affirm its order on any independent
ground made manifest by the record. Houlton Citizens' Coal. v. Town
of Houlton, 175 F.3d 178, 184 (1st Cir. 1999).
To warrant affirmance of an order for summary judgment,
the record must disclose no genuine issue as to any material fact
and show conclusively that the movant is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(c). An issue is genuine if,
on the evidence presented, it "may reasonably be resolved in favor
of either party" at trial. Garside v. Osco Drug, Inc., 895 F.2d 46,
48 (1st Cir. 1990). By like token, a fact is material if it
-5- "possess[es] the capacity to sway the outcome of the litigation
under the applicable law." Cadle Co. v. Hayes, 116 F.3d 957, 960
(1st Cir. 1997) (internal quotation marks omitted). In the final
analysis, then, "[t]he nonmovant may defeat a summary judgment
motion by demonstrating, through submissions of evidentiary quality,
that a trialworthy issue persists." Iverson v. City of Boston, 452
F.3d 94, 98 (1st Cir. 2006).
In applying these tenets, we take the facts in the light
most hospitable to the nonmovant and draw all reasonable inferences
in that party's favor. Galloza, 389 F.3d at 28. When doing so,
however, we give no weight to conclusory allegations, unsupported
conjecture, or free-wheeling invective. Id.
This is a rifle-shot appeal: the only assignment of error
advanced by the Allens is that the district court blundered in
concluding that they had not adduced facts sufficient to survive
summary judgment on their equal protection claim against the Town.2
That theory runs along the line that the Allens constitute a "class
2 The Town insists that it is not a proper target for this claim because a municipality cannot be held liable for the acts of its agents or employees under a respondeat superior theory. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). Relatedly, it argues that the Allens have failed to allege a municipal custom or policy underlying the putative equal protection violation. See, e.g., Collins v. City of Harker Heights, 503 U.S. 115, 120-24 (1992). But the Allens have alleged a series of purportedly discriminatory acts undertaken by a number of different municipal officials, some of whom are high-ranking. Consequently, we assume, for argument's sake, that the Town is a proper defendant.
-6- of one," impermissibly singled out for unfavorable treatment by the
Town. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)
(per curiam). Such a claim is cognizable when — and only when — a
"plaintiff alleges that she has been intentionally treated
differently from others similarly situated and that there is no
rational basis for the difference in treatment." Id. At the
summary judgment stage, of course, this allegation must be backed
by competent evidence.
The Allens maintain that they have offered probative
evidence on all the elements that are necessary to forge such a
cause of action.3 The district court rejected the Allens'
importunings: it concluded that while the Allens had presented a
plethora of evidence concerning a number of other landowners, they
had failed to show that these landowners were similarly situated to
them. The main thrust of the Allens' appeal is the claim that the
district court "erred in placing [a] burden on the Allens [that]
should have been placed upon the moving party" with respect to this
issue. Appellants' Br. at 20.
In evaluating this argument, we do not write on a
pristine page. Although "[t]he formula for determining whether
3 We need not reach any question of whether, post-Olech, a plaintiff must demonstrate malice or bad faith intent to injure when there is no discrimination based on typically impermissible categories. See Bizzarro v. Miranda, 394 F.3d 82, 88 (2d Cir. 2005). For present purposes, it suffices to say that the Allens fail to satisfy the "similarly situated" requirement. See text infra.
-7- individuals or entities are 'similarly situated' for equal
protection purposes is not always susceptible to precise
demarcation," Barrington Cove Ltd. P'ship v. R.I. Hous. & Mortg.
Fin. Corp., 246 F.3d 1, 8 (1st Cir. 2001), the case law makes clear
that the burdens of production and persuasion must be shouldered by
the party asserting the equal protection violation. Thus,
"[p]laintiffs claiming an equal protection violation must first
identify and relate specific instances where persons situated
similarly in all relevant aspects were treated differently."
Buchanan v. Maine, 469 F.3d 158, 178 (1st Cir. 2006) (emphasis in
original) (internal quotation mark omitted).
The Allens also argue that, regardless of the allocation
of burdens, the district court demanded more of them than the law
allows. In their view, the degree of similarity between their
situation and the situations of the landowners whom they identified
as comparators was, on the evidence adduced, a question of material
fact that should have been left to a jury. This argument cannot
withstand scrutiny.
To be sure, the ultimate determination as to whether
parties are similarly situated is a fact-bound inquiry and, as such,
is normally grist for the jury's mill. But that does not mean that
every case, regardless of the proof presented, is a jury case. To
carry the burden of proving substantial similarity, "plaintiffs must
show an extremely high degree of similarity between themselves and
-8- the persons to whom they compare themselves." Clubside, Inc. v.
Valentin, 468 F.3d 144, 159 (2d Cir. 2006). While the applicable
standard does not require that there be an "[e]xact correlation,"
Tapalian v. Tusino, 377 F.3d 1, 6 (1st Cir. 2004), there must be
sufficient proof on the relevant aspects of the comparison to
warrant a reasonable inference of substantial similarity.4 Thus,
the proponent of the equal protection violation must show that the
parties with whom he seeks to be compared have engaged in the same
activity vis-à-vis the government entity without such distinguishing
or mitigating circumstances as would render the comparison inutile.
See Perkins v. Brigham & Women's Hosp., 78 F.3d 747, 751 (1st Cir.
1996).
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." Olech, 528 U.S. at 565 (Breyer, J.,
concurring). Given this template, virtually every zoning decision
— in the absence of a sensible limiting principle — would be a
candidate to find its way to federal court in the guise of an equal
protection claim. Cf. Creative Env'ts, Inc. v. Estabrook, 680 F.2d
4 We note that the degree of similarity required may be relaxed somewhat if the plaintiff has presented evidence of "personal malice and 'bad faith' retaliation." Tapalian, 377 F.3d at 7. Thus, while we do not reach whether a class of one suit may be maintained in the absence of malice, see supra note 3, evidence of malice is always relevant.
-9- 822, 833 (1st Cir. 1982) (warning that "[e]very appeal by a
disappointed developer from an adverse ruling by a local . . .
planning board necessarily involves some claim that the board
exceeded, abused or 'distorted' its legal authority in some manner"
and can be given a constitutional label) (emphasis in original).
The "similarly situated" requirement furnishes the limiting
principle that guards against such a devolution.
This requirement demands more than lip service. It is
meant to be "a very significant burden." Discovery House, Inc. v.
Consol. City of Indianapolis, 319 F.3d 277, 283 (7th Cir. 2003); see
Creative Env'ts, 680 F.2d at 883 (explaining that it is not enough
to give land use "claims constitutional labels such as 'due process'
or 'equal protection' in order to raise a substantial federal
question under section 1983"). It is inadequate merely to point to
nearby parcels in a vacuum and leave it to the municipality to
disprove conclusory allegations that the owners of those parcels are
similarly situated.
Seen against this background, "a court can properly grant
summary judgment where it is clear that no reasonable jury could
find the similarly situated prong met." Harlen Assocs. v. Inc.
Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001); see McDonald v.
Vill. of Winnetka, 371 F.3d 992, 1002 (7th Cir. 2004). That
principle may apply even though, as in this case, the plaintiffs
have presented copious evidence concerning a multiplicity of
-10- possible comparisons. See, e.g., Bell v. Duperrault, 367 F.3d 703,
708 (7th Cir. 2004); cf. Barrington Cove, 246 F.3d at 8-9 (upholding
grant of Rule 12(b)(6) motion to dismiss when plaintiff failed to
establish similarity with "reasonable particularity" and the facts
alleged suggested "entirely reasonable" grounds for disparate
treatment).
With this framework in place, we return to the case at
hand. The Allens emphasize that they are subject to the same zoning
and environmental strictures as their neighbors and argue that any
material discrepancy in outcomes must, a fortiori, be a result of
unequal application of the law. But casting the argument in those
terms oversimplifies the analysis and fails to account for the fact
that "[v]arious factual traits, circumstantial nuances, and
peculiarities can set entities apart, rendering them, by virtue of
their differences, amenable to disparate treatment." Racine Charter
One, Inc. v. Racine Unified Sch. Dist., 424 F.3d 677, 681 (7th Cir.
2005).
The burden that a class of one plaintiff must carry at
the summary judgment stage is considerably heavier than a mere
showing that others have applied, with more auspicious results, for
the same benefit that he seeks. See Jennings v. City of Stillwater,
383 F.3d 1199, 1214 (10th Cir. 2004); see also Clubside, 468 F.3d
at 159 (describing a plaintiff's burden at summary judgment in a
class of one case as "more stringent than that used at summary
-11- judgment in the employment discrimination context"). Were the law
otherwise, the federal court would be transmogrified into a
supercharged version of a local zoning board — a zoning board on
steroids, as it were.
Thus, the Allens — in order to show that other parties
were similarly situated to them — needed to adduce evidence
sufficient to establish factual as well as regulatory similarity.
Close perscrutation of the record readily indicates that they failed
to fulfill this obligation. We explicate this conclusion by
specific reference to the four principal instances upon which the
Allens rely in their effort to show that the Town singled them out
for disparate treatment.
First, the Allens lament that the town counsel informed
them that, due to their undersized lot, they would be required to
seek a variance or special permit as a precondition to proceeding
with the construction of their planned compound.5 They contrast
this with the Town's issuance of a building permit to Newman for her
undersized lot without first requiring a similar dispensation from
the zoning board.
This comparison is inapt; the scale of the two projects
was dramatically different. The Allens' proposed improvements were
much more ambitious than those undertaken by Newman, and materially
5 The Allens have stoutly resisted this ultimatum; they have never applied for a variance or special permit.
-12- different projects may be treated differently by zoning or planning
boards without raising constitutional concerns. In this instance,
it was not irrational for a municipality to conclude that a proposal
to relocate an existing residence while expanding the footprint by
90 square feet (as Newman desired) should be treated differently
than a proposal involving the construction of a brand-new 3,000-
square-foot structure, the substantial expansion of an existing
building, and the installation of a large pool and deck area. See
Campbell v. Rainbow City, 434 F.3d 1306, 1316 n.8 (11th Cir. 2006)
(noting that the degree of non-conformity with a zoning rule is a
valid basis for classifying properties as not similarly situated);
Barstad v. Murray County, 420 F.3d 880, 886 (8th Cir. 2005)
(distinguishing the expansion of an existing use from the
construction of a new facility); see also Bell, 367 F.3d at 707-08
(observing that the construction of new structures may be dissimilar
from the replacement of existing structures). This is especially
true in a community which, like Truro, has a zoning rule that allows
for the issuance of a building permit without leave from the zoning
board when the building commissioner determines that a proposed
change will "not increase the nature or extent of the
nonconformity." Truro Zoning Bylaw § VII.B.2.6
6 The Allens point to correspondence in which the town counsel suggested that even had the Allens proposed a less ambitious project, they would still have been required to seek special permission from the zoning board. The Allens concede, however, that they never submitted a scaled-down proposal. Consequently, we
-13- We add a coda. In the land-use context, timing is
critical and, thus, can supply an important basis for differential
treatment. Since zoning bylaws, environmental standards, and
licensing criteria may change over time, courts must be sensitive
to the possibility that differential treatment — especially
differential treatment following a time lag — may indicate a change
in policy rather than an intent to discriminate. See Purze v. Vill.
of Winthrop Harbor, 286 F.3d 452, 455 (7th Cir. 2002).
Consequently, the most reliable comparisons are likely to be from
roughly the same time frame.
There is reason to think that temporal disparities may be
relevant here. Newman received her building permit in 1998, whereas
the Allens were referred to the zoning board in 2002. Moreover,
Landis (also the owner of an undersized lot), constructed a 750-
square-foot addition to her home only after obtaining a special
permit from the zoning board in 2003. This chronology weakens the
inference that Newman and the Allens are fair congeners.
A second exemplar put forth by the Allens involves the
Truro Conservation Commission. The Commission determined that the
Allens' property rests on a coastal dune. The Allens contrast this
need not speculate about what might have happened if they had. See Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 705 (1st Cir. 1994) (noting that federal courts do not deal in hypothetical questions).
-14- designation with the Town's designation of Newman's abutting
property as being located on a coastal bank.7
The difference in nomenclature is not inconsequential;
the presence of a coastal dune imports stringent environmental
safeguards and building restrictions. Among other things, the
designation negates a landowner's ability to build on a solid
foundation rather than on pilings (a course that the Allens wished
to pursue) and adversely affects the landowner's right to install
certain types of septic systems.
Once again, the Allens' plaint is without merit. While
it is true that the Town allowed Newman to proceed on the basis that
her property was situated on a coastal bank and, thus, could be
constructed with a crawl-space drainage system rather than on
pilings, the Town's subsequent conduct has been consistent with its
treatment of the Allens. In particular, the Landis, Sexton, and
Perry additions all have been required to employ pilings as opposed
to solid foundations. Because the Town's opposition to the Allens'
efforts to build on a solid foundation is in no way anomalous or
inconsistent, the Allens are not part of a class of one vis-à-vis
the "coastal dune" designation.8 By definition, a class of one is
7 The district court found this claim to be time-barred, but proceeded to resolve it on the merits. See Cordi-Allen, 2006 WL 2033897, at *6-7. We take no view of the time bar issue, preferring instead to address the merits. 8 The Allens make much of the fact that the Sextons have been allowed to keep a pre-existing solid retaining wall. We think that
-15- not a class of many. Cf. Campbell, 434 F.3d at 1317 (explaining
that a class of one suit cannot be maintained when similar burdens
have been imposed on other individuals).
As a third exemplar, the Allens offer some desultory
charges that the Town has gone to a Massachusetts state court to
appeal an approval that they received from the Massachusetts
Department of Environmental Protection (DEP) regarding a proposed
septic system. They aver that this is an instance of unequal
treatment because the Town has not appealed such an approval in any
other case.
This is whistling past the graveyard. The Allens do not
offer a shred of evidence to support the allegation of disparate
treatment; for aught that appears, there never had been a comparable
case. Given this dearth of evidence, we find that the wrangling
over the septic system does not reveal any arbitrary divergence from
the Town's conduct toward other similarly situated individuals.9
See Bell, 367 F.3d at 708 (noting that "speculation and conjecture"
will not allow a class of one plaintiff to survive summary
judgment).
The Allens' final exemplar involves floats. They say
that the Town refused to license floats designed to extend their
fact is of no moment. The relevant point of analysis is new home construction. 9 In any event, the record reflects that the Town has succeeded in persuading the DEP that the approval was granted in error.
-16- pier despite having licensed such floats for the nearby yacht club.
The district court rejected this argument, noting that the Allens'
request for licensure, unlike that of the yacht club, had been
denied at an earlier time by the DEP and the Army Corp of Engineers.
See Cordi-Allen, 2006 WL 2033897, at *8.
On appeal, the Allens have offered no developed
argumentation elaborating the claim that they are similarly situated
to the yacht club. We could reject their claim on this ground
alone. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(holding that "issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed
waived"). Here, moreover, the record reflects a wholly rational
explanation for the disparate treatment. Thus, the Allens plainly
have not carried their burden of demonstrating that they are
similarly situated to the yacht club. See Bell, 367 F.3d at 708.
Before concluding our analysis, we add a postscript. At
oral argument in this court, the Allens protested that a strict
interpretation of the "similarly situated" requirement — an
interpretation to which we have adhered in this and earlier cases
— would limit class of one land-use claims to circumstances
involving attempts to build identical structures on identical
parcels. This criticism is unjustified. The test, properly
understood, does not demand identicality. It simply requires that
class of one plaintiffs demonstrate that their comparators are
-17- similar in relevant respects. See Barrington Cove, 246 F.3d at 8.
The Allens have fallen well short of that mark.
We need go no further. The Olech class of one suit
serves an important but relatively narrow function. It is not a
vehicle for federalizing run-of-the-mine zoning, environmental, and
licensing decisions. In this instance, the Allens — with their eyes
wide open — purchased an undersized lot in an ecologically sensitive
area. They could not reasonably have expected to have a free hand
in developing the property. While the record reflects that the Town
has not been particularly accommodating, the Allens have not
presented probative evidence sufficient to create a genuine issue
of material fact as to the existence of disparate treatment between
them and other similarly situated persons. Accordingly, the
district court did not err in entering summary judgment for the Town
on the equal protection claim.
Affirmed. Costs shall be taxed in favor of the Town.
-18-