Harlen Associates v. Inc. Village of Mineola

• Decision Date: 01 August 2001
• Docket Number: Docket No. 01-7039,DEFENDANTS-APPELLEES,PLAINTIFF-APPELLANT
• Citation: 273 F.3d 494
• Parties: (2nd Cir. 2001) HARLEN ASSOCIATES,v. THE INCORPORATED VILLAGE OF MINEOLA AND BOARD OF TRUSTEES FOR THE INCORPORATED VILLAGE OF MINEOLA,
• Court: U.S. Court of Appeals — Second Circuit

Page 494

273 F.3d 494 (2nd Cir. 2001)

HARLEN ASSOCIATES, PLAINTIFF-APPELLANT v. THE INCORPORATED VILLAGE OF MINEOLA AND BOARD OF TRUSTEES FOR THE INCORPORATED VILLAGE OF MINEOLA, DEFENDANTS-APPELLEES

Docket No. 01-7039

August Term, 2001

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued August 29, 2001

Decided November 16, 2001

Appeal from an order of the United States District Court for the Eastern District of New York, Mishler, J., granting summary judgment in favor of defendants on plaintiff's equal protection and due process claims arising out of the denial of a special use permit to operate a convenience store. We hold that plaintiff was not a victim of selective enforcement violative of its right to equal protection of the law and has no cognizable property right to the permit under the Due Process Clause.

Affirmed.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Carl S. Levine, Roslyn, NY (Alexander M. Amanatides, Carl S. Levine & Associates, Roslyn, Ny, of counsel), for Appellant.

Christopher P. Cartier, Albertson, NY (Ahmuty, Demers & McManus, Albertson, Ny, of counsel), for Appellee.

Before: Meskill, Winter and Straub, Circuit Judges.

Meskill, Circuit Judge

Plaintiff-appellant, Harlen Associates (Harlen), brought this action pursuant to 42 U.S.C. § 1983 against defendants-appellees, the Incorporated Village of Mineola (Village) and its Board of Trustees (Board), alleging that the Board's denial of a special use permit to operate a convenience store was unconstitutional. The United States District Court for the Eastern District of New York, Mishler, J., granted defendants-appellees' motion for summary judgment and dismissed the action. Harlen contends that the Board's denial of the special use permit was unconstitutional under the Fourteenth Amendment to the United States Constitution¹ because it violated (1) its right to equal protection under the law by denying its permit application based on community opposition while granting permits to similarly situated stores in the Village, and (2) its right to due process by denying its application after it had been properly filed with the Village Building Inspector. We find no merit in Harlen's contentions and we affirm.

BACKGROUND

Harlen is a partnership that owns real property located on Jericho Turnpike in Mineola, New York. Jericho Turnpike is the main thoroughfare through the Village of Mineola and has traffic volume of approximately 33,500 cars per day. Before Harlen acquired ownership of the property at issue, the parcel had been used as a gasoline service station/automobile repair shop. Three schools are located in the immediate vicinity of Harlen's property.

Harlen planned to operate a 7-Eleven convenience store on the property. That use was not permitted by the zoning code absent a special use permit from the Village. The Village Zoning Law vests discretion in the Board to deny applications for special use permits for a number of reasons, including traffic, safety and aesthetic concerns. The Board has permitted more than five other convenience stores to operate on Jericho Turnpike in Mineola, although none of them is as close to the area schools as is Harlen's property.

In 1998, Harlen properly filed an application for a special use permit to build a 7-Eleven convenience store on its property. The Board subsequently held a public hearing concerning Harlen's application. At the hearing, Harlen presented evidence in support of its application, including expert testimony, a letter indicating the permit history of the property, photographs, prior Board decisions granting special use permits to allegedly similar establishments on Jericho Turnpike and a partial copy of a 1991 Nassau County Department of Engineering traffic flow map for the property and the surrounding area. No comparable documentary evidence was presented in opposition to the application.

At the hearing, the Board members -- including the Village's Mayor who lived on the block where Harlen's property was located -- expressed concern about child safety and trepidation about the site's proximity to three schools and its location alongside "one of the most dangerous crosswalks in the Village of Mineola." The Board members also noted that a convenience store could attract children from the surrounding schools who would congregate there, thereby increasing the risk of an accident.

The hearing was then opened to public comment and a number of community residents voiced their disapproval of the proposed use of the property for a variety of reasons, most prominently traffic density and child safety. Some residents also expressed a desire to limit further development, concern regarding the hours of operation and potential clientele, and a fear that convenience stores might attract drug activity and other crimes.

At the conclusion of the hearing, the Board voted 5-0 to deny Harlen's application. On May 26, 1998, the Board filed a formal written decision. The decision cited nine reasons for the denial, including the proximity of the property to a number of local schools, increased traffic, the potential threat to child safety, intrusion on the surrounding residential area and an increased danger to pedestrians generally. After the formal decision was entered, Harlen brought this action in district court under 42 U.S.C. § 1983 alleging that the Board had violated its rights to equal protection and substantive due process granted by the United States Constitution.

The defendants moved for summary judgment, claiming that there was no material issue of fact in dispute and that they were entitled to judgment as a matter of law. After considering Harlen's response, the district court granted summary judgment in favor of the defendants, holding, with respect to Harlen's equal protection claim, that Harlen had not raised a genuine issue of material fact as to either whether it was similarly situated to others who had been granted permits or whether the Board's actions were motivated by animus. It also dismissed Harlen's substantive due process claim, holding as a matter of law that Harlen had no constitutionally protected property interest in the permit sought. Harlen timely appealed. We affirm the judgment of the district court.

DISCUSSION

We review a grant of summary judgment de novo. Nora Beverages v. Perrier Group of Am., 164 F.3d 736, 742 (2d Cir. 1998). A motion for summary judgment must be granted where "there is no genuine issue as to any material fact and... the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A "genuine issue" exists for summary judgment purposes where the evidence, viewed in the light most favorable to the nonmoving party, is such that a reasonable jury could decide in that party's favor. Nabisco v. Warner-Lambert Co., 220 F.3d 43, 45 (2d Cir. 2000). Although all inferences must be drawn in favor of the nonmoving party, mere speculation and conjecture is insufficient to preclude the granting of the motion. Western World Ins. Co. v. Stack Oil, 922 F.2d 118, 121 (2d Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (holding that nonmoving party must do more than merely show "some metaphysical doubt" as to material facts to escape summary judgment). We examine each claim to see if summary judgment was appropriate.

I. The Equal Protection Claim

The Equal Protection Clause requires that the government treat all similarly situated people alike. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Although the prototypical equal protection claim involves discrimination against people based on their membership in a vulnerable class, we have long recognized that the equal protection guarantee also extends to individuals who allege no specific class membership but are nonetheless subjected to invidious discrimination at the hands of government officials. E.g., LeClair v. Saunders, 627 F.2d 606, 608-10 (2d Cir. 1980). The Supreme Court recently affirmed the validity of such "class of one" claims "where the 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." Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam).

Harlen does not assert membership in a protected class, rather it claims that the Board's denial of its application for a special use permit was unconstitutional selective enforcement. We disagree. To prevail on a claim of selective enforcement, plaintiffs in this Circuit traditionally have been required to show both (1) that they were treated differently from other similarly situated individuals, and (2) that such differential treatment was based on "`impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.'" LaTrieste Rest. & Cabaret v. Village of Port Chester, 40 F.3d 587, 590 (2d Cir. 1994) (quoting LeClair, 627 F.2d at 609-10). Because we conclude that Harlen's claim does not satisfy the second part of this inquiry, we affirm the district court's grant of summary judgment in favor of the defendants.²

Harlen contends that the Supreme Court's decision in Olech modified the second part of the LeClair analysis by removing the requirement that malice or bad faith be shown in order to state a valid "class of one" equal protection claim. See Olech, 528 U.S. at 565 (holding that allegations of "irrational and wholly arbitrary" government action are sufficient to state an equal protection claim without inquiry into the defendants' subjective motivation). Indeed, we recently indicated in dicta that this reading of Olech is the correct one. Jackson v. Burke, 256 F.3d 93, 97 (2d Cir. 2001) (per curiam) (noting that "proof of subjective ill will is not an essential element of a `class of one' equal...