Posted by: Patricia Salkin | July 4, 2014

Second Circuit Court of Appeals Denies Equal Protection “Class of One” Claim For Failure To Show That Properties Sufficiently Similar Were Treated More Favorably

Plaintiffs Richard Zito, Sonny Zito Recycling Inc., and The 1815 LLC (jointly, “Zito”) appeal the judgment of the District Court dismissing, pursuant to Federal Rule of Civil Procedure 12(b)(6), their claim against the Town of Wawayanda (the “Town”) for violation of the Equal Protection Clause of the Fourteenth Amendment . Zito conducted the business of “recycling and solid waste stockpiling, storage, transportation, transfer and disposal” on property it owned in the Town. The Town initiated proceedings against Zito to abate what it deemed illegal use of the property in a zone that prohibited “Industrial Uses”—a category which includes recycling as carried out on Zito’s property. The Town and Zito settled the dispute by executing an agreement (the “Stipulation”) under which Zito was permitted to continue its “non-conforming use” under significant limitations imposed by the Stipulation. In 2013, Zito submitted a letter to the Town requesting that the Stipulation be rescinded and that Zito be permitted to resume its recycling operations in full. Zito argued, its recycling business should be permitted in full because it was “exactly the same” as Brookfield’s operation and, therefore, a permissible “Industrial Use.” The District Court dismissed this claim on the basis that Zito failed to plausibly allege that his property was sufficiently similarly situated to Brookfield to support a claim for equal protection violations.

The Second Circuit concluded that Zito had not plausibly alleged that “properties sufficiently similar to [it] were treated more favorably” by the Town in issuing its zoning decisions because several important distinctions between Zito and Brookfield provided a “rational basis for the difference in treatment.” They are in different zones, one of which permits all “Industrial Uses,” and one of which permits only “Light Manufacturing Uses”, and Brookfield is not subject to any agreement similar to the Stipulation. Accordingly the court held Zito’s equal protection claim failed and affirmed the District Court.

Zito v Town of Wawayanda, 2014 WL 2959472 (2nd Cir. CA 7/2/2014)

The opinion can be accessed at:

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