Opinion
No. 09-1861-cv.
March 10, 2010.
Appeal from a judgment of the United States District Court for the District of Connecticut (Chatigny, J.).
UPON DUE CONSIDERATION, IT ISHEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED.
Christopher Rooney, Carmody Torrance LLP, New Haven, CT, (John C. Brittain, Alexandria, VA, on the brief), for Appellants.
Nicole D. Dorman, Karsten, Dorman Tallberg, LLC, West Hartford, CT, (Deborah Etlinger, Michelle Himes-Wiedersc-hall, Wolf, Horowitz, Etlinger Case, LLC, Hartford, CT, on the brief), for Appellees.
SUMMARYORDER
Plaintiffs appeal from two orders of the United States District Court for the District of Connecticut (Chatigny, J.), one entered February 5, 2008 denying their motion to amend a scheduled pleading-amendment deadline, and the other entered March31, 2008 dismissing their complaint for failure to state a claim. Plaintiffs Landmark Development Group, LLC and Jarvis of Cheshire, LLC are real estate developers who own property in the Oswegatchie Hills area of East Lyme, Connecticut. Their applications to develop it as affordable housing were rejected by municipal authorities. They and others assert, inter alia, § 1983 claims for denial of their federal constitutional rights to substantive and procedural due process, and equal protection. We otherwise assume familiarity with the underlying facts, the procedural history, and the issues presented for review.
Plaintiffs contest the dismissal of their § 1983 claims alleging violation of substantive due process, procedural due process, and equal protection. We review orders dismissing claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure de novo. Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009) (per curiam).
As to dismissal of the § 1983 substantive and procedural due process claims, we conclude that there was no error. Plaintiffs were required to allege infringement of a property interest to which they had a "legitimate claim of entitlement." Bd. of Regents of State Colleges v. Roth, 408U.S. 564, 576, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); see also, e.g., DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 130 (2d Cir. 1998) (applying same requirement to substantive due process analysis). None of the three interests asserted satisfies this requirement.
Plaintiffs had no legitimate claim of entitlement to a sewer-extension permit. Defendants plainly have discretion to deny such permits. E.g., Forest Walk, LLC v. Water Pollution Control Authority, 291 Conn. 271, 968 A.2d 345, 353 (2009). And this discretion defeats Plaintiffs' claim. See Club side, Inc. v. Valentin, 468 F.3d 144, 153-54 (2d Cir. 2006) (only if [1] the agency "lacks discretion to deny the permit" or [2] "the discretion of the issuing agency is so narrowly circumscribed that approval of a proper application is virtually assured" and "there was a strong likelihood of issuance," is a claim of entitlement legitimate).
Plaintiffs had no legitimate claim of entitlement to a sewer-connection permit. Though Plaintiffs allege the existence of a "sewer-shed map" that entitles them to such a permit as of right, the municipality's legal discretion to deny it is at least arguable. See, e.g., East Lyme, Conn., Sewer Use Sewage Disposal Ordinance § 3.15 (Mar. 17, 1991) (granting to the East Lyme Water Sewer Commission the power to "revoke or annul[]" any sewer-connection permit "for such cause and at such times as the Commission may deem sufficient"). An arguable claim of entitlement is not a "legitimate claim of entitlement." "[Uncertainty as to the meaning of applicable law . . . suffices to defeat a land owner's claim of entitlement." Club side, 468 F.3d at 153(internal quotation marks omitted).
Even crediting Plaintiffs' claim of entitlement to water from the Town of Waterford, Plaintiffs allege no denial of that right by Defendants-only that Defendants "falsely" advised the Zoning Commission that Plaintiffs had no right to access " municipal water." Plaintiffs have thus failed to "plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." See Turkmen, 589 F.3d at 546.
As to dismissal of the § 1983 equal protection claim, we likewise find no error. To succeed on a "class-of-one" equal protection claim, Plaintiffs are required to show an "extremely high degree of similarity" between themselves and a differently treated comparate. Club side, 468 F.3d at 159. Plaintiffs cite a "high intensity, multi-family development of 600 units" (Darrell Pond), and a hotel(Konover). Neither is sufficiently similar to Plaintiffs' proposed residential development of "approximately 1,700 units," to permit the "reasonable inference that the defendant is liable for the misconduct alleged," Turkmen, 589 F.3d at 546. Cf. Club side, 468 F.3d at 160 (finding, on summary judgment, that 28 single-family homes were insufficiently similar to 288 duplex/triplex town houses).
Having affirmed the district court's dismissal of Plaintiffs' claims, we need not address Plaintiffs' assignments of error to the order denying their motion to amend the scheduling order. Thus, finding no merit in Plaintiffs' remaining arguments, we hereby AFFIRM the judgment of the district court.