July 21, 2015

In Abramson v Gettel, 2014 WL 6694505 (SDNY 11/25/2014), the court dismissed Plaintiff’s Equal Protection claim. Plaintiffs had commenced an action against Defendants, including the Town of Bethel, alleging that Defendants deprived Plaintiffs of their right to equal protection of law under the Fourteenth Amendment of the United States Constitution. Plaintiffs, a “class of one,” contended that Defendants enforced Town land use laws in a manner that penalized Plaintiffs and harmed their financial interests, while giving more lenient treatment to a competing entertainment and concert-hosting business.

In order to succeed on a “class-of-one” claim, a plaintiff must establish the following elements: (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 mistake.

In this case, the Court found that the two companies were not similarly situated because (1) one company must obtain a special use permit before hosting a concert, while the other company need not do so; and (2) years of non-compliance with Town land use requirements placed Plaintiffs and their property in a unique posture with respect to the Town. Therefore, the Court found that the different history, different zoning classifications, and different land use rights rendered the two properties dissimilar as a matter of law. As such, the Defendant’s motion to dismiss was granted.

If you have any questions about zoning or other real estate matters, please do not hesitate to contact an experienced attorney at (914) 338-8050. For more information about our firm please visit www.betenskylaw.com.