Posted by: Patricia Salkin | December 4, 2015

Second Circuit Upholds Dismissal of “Class of One” Equal Protection Claim for Failure to Find a Similarly Situated Comparator in Case Involving Woodstock Reunion Concerts

In 1971, Jeryl Abramson and Roy Howard, purchased a portion of Yasgur Farm, the site of the historic Woodstock music festival. After purchasing the property, Abramson has hosted a series of Woodstock reunion concerts without first obtaining the necessary permits from the Town. In 1997, an injunction was issued against him and, in 2007, the Town and Abramson entered into a consent order that bound the parties to the terms of the 1997 injunction. This consent order required Abramson to seek and receive a special use permit before hosting any Woodstock-themed event on the property, and provided for liquidated damages of $25,000 for failure to comply. In 2011, Abramson advertised an event without first obtaining a special use permit, and the Town assessed a $25,000 fine in accordance with the terms of the consent order. In this case, Jeryl Abramson and Yasgur Road Productions, LLC (jointly, “Appellants”) appealed from the judgment of the United States District Court for the Southern District of New York, which dismissed their claim against the Town of Bethel and several Town officials.

Abramson brought a “class of one” equal protection claim, which required him to allege that he had been intentionally treated differently from others similarly situated and that there was no rational basis for the difference in treatment. Abramson alleged that G & B Real Property LLC (“G & B”) was such a comparator since it also owned property in the Town and hosted similar Woodstock reunion events despite being zoned in a strictly commercial district. G & B hosted a concert in 2011 and the Town issued G & B “camping violations” for this event but did not otherwise prosecute G & B or pursue civil enforcement. The court found, however, that because G & B was not subject to an agreement similar to the consent order, it could seek a variance from its zoning restrictions at any time. Thus, the disparate treatment was a result of Abramson’s own actions and willingness to enter into the 2007 consent order. Moreover, while Yasgur Farm was required to seek prior approval through a special use permit, G & B need not, since it was subject to different requirements. The district court’s holding was therefore affirmed.

Abramson v Gettel, 607 Fed Appx 101 (2d Cir 2015)

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