# UnitedStates C ou rt o f App eals For th e First C ircuit

No. 06-2300 BARBARA CORDI-ALLEN AND JOHN ALLEN, Plaintiffs, Appellants,

v . JOSEPH R. CONLON ET AL., Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Patti B. Saris, U.S. District Judge]

Before Lynch, Circuit Judge, Selya, Senior Circuit Judge, and Lipez, Circuit Judge.

Paul Revere, III for appellants. Deborah I. Ecker, with whom Leonard H. Kesten, Deidre Brennan Regan, and Brody, Hardoon, Perkins & Kesten, LLP, were on brief, for appellees.

July 27, 2007-2- SELYA, Senior Circuit Judge. Land-use restrictions often set neighbor against neighbor, and can be a source of considerable turmoil in otherwise tranquil communities. So it is here: Barbara Cordi-Allen and her husband John Allen (the Allens) are landowners in the Cape Cod town of Truro, Massachusetts (the Town). They own a waterfront lot and wish to improve it. They have thus far been stymied in their efforts by a series of zoning, environmental, and licensing restrictions.

The A l l e n s a c c u s e t h e T o w n o f s i n g l i n gt h e mo u t for unfavorable treatment a n d thwarting their plans. The Town, with equal fervor, accuses the Allens o f seeking advantages to which they are not entitled. The ill will has spread like a malignant growth and has come to envelop several of the Allens' neighbors.

After many years of travail, the Allens elevated the feud to constitutional proportions: they condensed their grievances into a so-called "c l a s s o f one" claim, alleging that the disparate
treatment they had received infringed their rights under the Equal Protection Clause. See U.S. Const. amend. XIV. The Town heatedly denied these allegations. The district c o u r t sided with the Town and granted summary judgment in its favor. See Cordi

- A l l e n v. Conlon, No. 1:05-cv-10370, 2006 WL 2033897, at *8 (D. Mass. July 19, 2006). We are called upon to review that order. In doing so, we take the supported facts in the light most f a v o r a b le to theThe Town subsequently took the t i d e l a nds around the pier in 1 an eminent domain proceeding. The Allens have retained an easement encompassing the pier. -3- nonmovants (here, the Allen s )
. C a bán Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st Cir. 2007).

The events surrounding this case are byzantine, and a full recitation would serve no useful purpose. Thus, we offer only a decurtate summary, supplemented as needed in the c o u r s e of our analysis of the relevant legal issues. We urge readers who hunger for more detailed informat i o n t o consult the district court's comprehensive opinion (which even the Allens, at oral argument before us, commended as doing "a good job of gleaning the facts").

This controversy dates back to March o f 1 9 96, when the Allens purchased a piece of waterfr o n t p r o perty in Truro. The parcel abuts propertie s owned by Brooke Newman, Sarah Landis, and the Pamet Harbor Yacht Club. Other neigh b o r s i n relatively close proximity include the Sextons and the Perrys.

The Allens' lot is undersized. The only improvements on i t a s o f the date of acquisition were a small 400-square-foot cottage and a short pier. The Allens aspired to build a compound. 1 Their plans contemplated erecting a new 1,512-square-foot dwelling with an attached 1,750-square-foot garage on a solid foundation with crawl space drainage; expanding the existing cottage (originally built as a boathouse) into a 640-squ a r e - f oot residence; and ins t a l l i n ga large swimming pool with adjacent decks. To top-4-

matters off, the Allens pro p o s e d t o install floats as a means of extending their existing pier.

A number of disagreements arose with respect to the Allens' plans. These included disputes about the interpretation and application of zonin g l a w s and environmental restrictions. The controversy soon extended to the licensing of the proposed floats.

The Allens characterize all o f t his as obstructive behavior. They protest that it s t a nds in stark contrast to the accommodations l avished on other residents. Their next-door neighbo r , N e wm an, is the poster child for the claim of unequal
treatment. In addition, they insist that Landis, the Sextons, and the yacht club all have received more favorable receptions from the
Town. Frustrated by these perceived inequities, the Allens filed suit in a Massach u s e t t s state court in February of 2005. Their complaint contained five co u nts. The first, third, fourth, and fifth counts are not relevant here. The sole cou n t w ith which

we are c o n c e r n e d — count 2 — invoked 42 U.S.C. § 1983 and alleged that the Town had denied the Allens equal protection of the laws.

On the basis of the equal protection claim, the defendants removed the case to the federal district court. See 28 U.S.C. §§ 1331, 1441. In due course, the Town moved for summary judgment with respect to coun t 2 . See Fed. R. Civ. P. 56. The district court concluded that the Allens had not shown that the Town-5-

had treated them differentl yfrom similarly situated parties and entered judgment on the equ a l protection claim. See Cordi-Allen, 2006 WL 2033897, at *8. It then remanded the r emaining counts to the state court. See id.; see also 28 U.S.C. § 1367(c).

This timely appeal ensued. W e h a ve appellate jurisdiction notwithstanding the reman d
. T h e rule is that when a district court enters a final j u d g m e n t on all the federal claims then pending in a civil action and contemporaneously r e m a n d s all remaining c l a i m s t o a state court, immediate appellate review of that collateral order is availabl e . S e e Christopher v. StanleyBostitch, Inc., 240 F.3d 95, 99 (1st Cir. 2001) (per curiam).

Th e a p p l i c a b l e s t a n d a r d o f r e v i e w i s f a m i l i a r . We appraise a grant of summary judgment de novo. Galloza v. Foy, 389 F.3d 26, 28 (1st Cir. 2004). We are not wed to the district court's rationale but, rather, m ay affirm its order on any independent ground made manifest by the record. Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999).

To warrant affirmance of an order for summary judgment, the record must disclose n o g enuine issue as to any material fact and show conclusively that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). An issue is genuine if, on the evidence presented, it "may reasonably be resolved in favor of either party" at trial. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990). By like token, a fact is material if itTh e T o w n insists that it is not a proper target for this 2 claim because a municipality cannot be held liable for the acts of its agents or employees under a respondeat superior theory. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). Relatedly, it argues that the Allens have failed to allege a municipal custom or policy underlying the putative equal protection violation. See, e.g., Collins v. City of Harker Heights, 503 U.S. 115 , 1 2 0

- 2 4 ( 1 9 9 2 )
. B u t t h e A l l e n s h a v e a l l e g e da s e r i e s of purportedly discriminatory acts undertaken by a number of different municipal officials, some of whom are high-ranking. Consequently, we assume, for argument's sake, that the Town is a proper defendant. -6- "possess[es] the capacity to sway the outcome o f t he litigation under the applicable law." Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Ci r . 1 9 9 7 ) (internal quotation marks omitted). In the final analysis, then, "[t]he no n movant may defeat a summary judgment motion by demonstrating, through submissions of evidentiary quality, that a trialworthy issue persists." Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006).

In applying these tenets, we take the facts in the light most hospitable to the nonmovant and draw all reasonable inferences in that party's favor. Galloza, 3 8 9 F . 3d at 28. When doing so, how e v e r , we give no weight to conclusory allegations, unsupported conjecture, or free-wheeling invective. Id.

This is a rifle-shot appeal: the only assignment of error adva n c e d b y t h e A l l e n s i s t h a t t h e d i s t r i c t c o u r t b l u n d e red in concluding that t h e y h ad not adduced facts sufficient to survive summary judgment on their equal protection claim against the Town. 2 That theory runs along the line that the Allens constitute a "classWe need not reach any qu e s t i o n of whether, post-Olech, a 3 plaintiff must demonstrate malice or b ad faith intent to injure when there is no discrimination based on typically i mp ermissible categories. See Bizzarro v. Mir a n d a, 394 F.3d 82, 88 (2d Cir. 2005). F o r p resent purposes, it suffices to say that the Allens fail to satisfy the "si m i larly situated" requirement. See text infra. -7- of one," impermissibly singled out for unfavorable treatment by the Town. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam). Such a claim is cognizable when — and only when — a "plaintiff alleges that she h a s been intentionally treated differently from oth e r s similarly situated and that there is no rational basis for the difference in treatment." Id. A t the summary judgment stage, of course, this allegation must b e backed by competent evidence.

The Allens maintain that they have offered p r o b ative evidence on all the e l ements that are necessary to forge such a cause of action. T h e district court rejected the Allens' 3 importunings: i t c o n cluded that while the Allens had presented a plethora of evidence concerning a number of other landowners, they had failed to show that these landowners were similarly situated to them. The main thrust of the Allens' appeal is the claim that the district court "erred in placing [a] b u r d e n on the Allens [that] should have been placed upon the moving party" with respect to this issue. Appellants' Br. at 20.

In evaluating this argument, we do not write on a pristine page. A l t h o u gh "[t]he formula for determining whether-8-

individuals or entities a r e 'similarly situated' for equal
p r o t ection purposes is not always susceptible to precise demarca t i o n , " Barrington Cove Ltd. P'ship v. R.I. Hous. & Mortg. Fin. Corp., 246 F.3d 1, 8 (1st Cir. 2001), the case law makes clear that the burdens of production and persuasion must be shouldered by the party asserting the equal protection violation. Thus, "[p]lai n t i ffs claiming an equal protection violation must first id e n t i f ya n dr e l a t e s p e c i f i c i n s t a n c e s w h e r e p e r s o n s s i t uated similarly in al l relevant aspects were treated differently." Buchanan v. Maine, 469 F.3d 158, 178 (1st Cir. 20 0 6 ) (emphasis in original) (internal quotation mark omitted).

The Allens also argue that, regardless of the allocation of burdens, the district court demanded m o r e of them than the law allo w s . I n t h e i r v i e w , t h e d e g r e e o f s i m i l a r i t y b e t w e e n their situation and the situations of the landowners whom they identified as comparators was, on the evidence adduced, a question of material fact that should have been left to a jury. This argument c a nnot withstand scrutiny.

To b e s u r e , t h e u l t i m a t e d e t e r m i n a t i o n a s t o w h e t h er parties are similarly situated is a fact-bound inquiry and, as such, is normally grist for the jury's mill. But that does not mean that every case, regardless of the proof presented, is a jury case. To carry the burden of proving substantial similarity, "plaintiffs must show an extremely high degree of similarity between themselves andWe note that the degree of similarity required may be relaxed 4 somewhat if the plaintiff has presented evidence of "personal malice and 'bad faith' retaliation." Tapalian, 377 F.3d at 7. Thus, while we d o n o t r e a ch whether a class of one suit may be maintained in the absence of malice, see supra note 3, evidence of malice is always relevant. -9- the persons to whom they co mp a r e t hemselves." Clubside, Inc. v. Valentin, 468 F.3d 144, 159 ( 2 dCir. 2006). While the applicable standard does not require that there be an "[e ] xact correlation," Tapalian v. Tusino, 377 F.3d 1 , 6 (1st Cir. 2004), there must be sufficient proof on the r e l e v a n t aspects of the comparison to
warrant a reasonable inference of substant i a l s imilarity. Thus, 4 the proponent of the equal protection violation must show that the parties with whom he seeks to be compared have engaged in the same activity vis-à-vis the government entity without such distinguishing

or mitigating circumstances as would render the comparison inutile. See Perkins v. Brigham & Women's Hosp., 78 F.3d 747, 751 (1st Cir. 1996). The "similarly situated" requirement must be enforced with particular rig o r in the land-use context because zoning decisions "will often, perha p s a l most always, treat one landowner dif f e r e n t l y f r o m a n o t h e r . " O l e c h , 5 2 8 U . S . a t 5 6 5 ( B r e y er, J., concurring). Given this template, virtually every zoning decision

— i n t h e a b s e n c e o fa s e n s i b l e l i m i t i n gp r i n c i p l e — w o u l dbe a candidate to find its way to federal court in the guise of an equal protection claim. Cf. Creative Env'ts, Inc. v. Estabrook, 680 F.2d-10-

822, 8 3 3 ( 1 st Cir. 1982) (warning that "[e]very appeal by a disappointed developer from an a dv e r s e ruling by a local . . . planning board necessari l y i n volves some claim that the board exceeded, abused or 'distorted' its legal authority in some manner" and can be given a constitutional label) (emphasis i n o r i g inal). The "similar l y situated" requirement furnishes the limiting principle that guards against such a devolution.

This requirement demands more than lip se r v i c e . It is meant to be "a very significant burden." Discovery House, Inc. v. Consol. City of Indianapolis, 319 F.3d 277, 283 (7th Cir. 2003); see Creative Env'ts, 680 F.2d at 883 (explaining that it is not enough to give land use "claims constitutional labels such as 'due process' or 'equal protection' in orde r t o r a ise a substantial federal question under section 1983"). It is inadequate merely to point to nearby parcels in a vac u u m a n d leave it to the municipality to disprove conclusory allegations that the owners of those parcels are similarly situated.

Seen against this background, "a court can properly grant summary judgment where it is clear that n o r e a sonable jury could find the similarl y s i t u a ted prong met." Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001); see McDonald v. Vill. of Winnetka, 371 F.3d 992, 1002 ( 7 t h C ir. 2004). That principl e m a ya p p l ye v e n t h o u g h , a s i n t h i s c a s e , t h e p l a i n t i f fs have presented copious evidence concerning a m ultiplicity of-11-

possible comparisons. See, e.g., Bell v. Duperrault, 367 F.3d 703, 708 (7th Cir. 2004); cf. Barrington Cove, 246 F.3d at 8-9 (upholding grant of Rule 12(b)(6) motion to dismiss when p l a i n t i ff failed to establish similarity with "reasonable particularity" and the facts alleged suggested "entire l y reasonable" grounds for disparate treatment).

With this framework in place, we return to the case at hand. The Allens emphasize that they are subject to the same zoning and environmental strictures as their neighbors and argue that any material discrepancy in outcomes must, a fortiori , b e a result of unequal application of the law. But casting the argument in those terms oversimplifies the analysis and fails to account for the fact that "[v]arious factual traits, cir c umstantial nuances, and peculiarities can set entities apart, rendering them, by virtue of their differences, amenable to disparate treatment." Racine Charter One, Inc. v. Racine Unified Sch. Dist., 424 F.3d 677, 681 (7th Cir. 2005). The burden that a class of one plaintiff must carry at the summary judgment stage is considerably heavier than a mere showing that others have applied, with more auspicious results, for the same benefit that he seeks. See Jennings v. City of Stillwater, 383 F.3d 1199, 12 1 4 ( 10th Cir. 2004); see also Clubside, 468 F.3d

a t 1 5 9 (describing a plaintiff's burden at summary judgment in a class of one case as "more s t r i n g e n t than that used at summaryThe A l l e ns have stoutly resisted this ultimatum; they have 5 never applied for a variance or special permit. -12- judgment in the employment discrimination context"). Were the law otherwise, the federal court would be tra n s m o g rified into a superch a r g e d v e r sion of a local zoning board — a zoning board on steroids, as it were.

Thus, the Allens — in order to show that other parties were similar l y situated to them — needed to adduce evidence sufficient to establish factual as well as regulatory sim i l a r i ty. Close perscrutation of the record readily indicates that they failed to fulfill this o b l igation. We explicate this conclusion by specific reference to the four principal instance s upon which the Allens rely in their effort to show that the Town singled them out for disparate treatment.

First, the Allens lament that the town counsel informed
t h e m t h a t , d u e t o t h e i r u n d e r s i z e d l o t , t h e y w o u l d b e r e q u i red to seek a varianc e o r s p ecial permit as a precondition to proceeding with the construction of their planne d c o mpound. They contrast 5 this with the Town's issuance of a building permit to Newman for her undersized lot without first requiring a similar dispensation from the zoning board.

This comparison is inapt; the scale of the two projects was dramatically different. The Allens' proposed improvements were much more ambitious than those undertaken by Newman, and materiallyThe Allens point to correspondence in which the town counsel 6 suggested that even had the Allens proposed a l e ss ambitious project, they would still have be e n required to seek special permission from the zon i n g board. The Allens concede, however, that they never submitted a scaled-down proposal. Consequently, we -13- different projects may be treated differently by zoning or planning boards without raising constitutional concerns. In this instance, it was not irrational for a municipality to conclude that a proposal to relocate an existing residence while expanding the footprint by 90 square feet (as Newman desired) should be treate dd i f f e rently than a pr o p o s a l involving the construction of a brand-new 3,000-
square- f o o t structure, the substantial expansion of an existing building, and the installation of a large pool and deck area. See Campbell v. Rainbow City, 434 F.3d 1306, 1316 n.8 (11th Cir. 2006) (noting that the degree of non-conformity with a z o n i ng rule is a valid basis for classifying properties as not similarly situated); Barstadv . Mu r r a yC o u n t y , 4 2 0 F . 3 d8 8 0 , 8 8 6 ( 8 t hC i r . 2 0 05) (distinguishing the expansion of an existing use f r o mthe construction of a new facility); see also Bell, 367 F.3d at 707-08 (observing that the construction of new structures may be dissimilar from the replacement of existing s tructures). This is especially true in a community which, like Truro, has a zoning rule that allows for the issuance of a building permit without leave from the zoning board when the building commissioner determines that a p r o p o sed change wi l l "not increase the nature or extent of the nonconformity." Truro Zoning Bylaw § VII.B.2. 6need not speculate about what might have happened if they had. See

Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 705 (1st Cir. 1994) (noting that federal courts do not deal in hypothetical questions). -14-

We add a coda. In the land-use context, timing is critical and, thus, can supply an important basis for differential treatment. Since zoning b y l aws, environmental standards, and l icensing criteria may change over time, courts must be sensitive to the possibility that differenti a l t r eatment — especially differential treatment following a time lag — may indicate a change in policy rather than an intent to discriminate. See Purze v. Vill. of Winthrop Harbor, 286 F.3d 452, 455 (7t h C i r. 2002). Consequently, the most reliabl e comparisons are likely to be from roughly the same time frame.

There is reason to think that temporal disparities may be relevant here. Newman received her building permit in 1998, whereas the Allens were referred to the zon i n g b o a r din 2002. Moreover,
La n d i s ( a l s o t h e o w n e r o f a n u n d e r s i z e d l o t ) , c o n s t r u c t e d a 750- square-foot additi o n t o her home only after obtaining a special permit from the zoning board in 2003. This chronology weakens the inference that Newman and the Allens are fair congeners.

A second exemplar put f o r t h by the Allens involves the Truro Conservation Commission. The Commission determined that the Allens' property rests on a coastal dune. The Allens contrast thisThe dist r i ct court found this claim to be time-barred, but 7 proceeded to re s o l v e it on the merits. See Cordi-Allen, 2006 WL 2033897, at *6-7. We take no view of the time bar issue, preferring instead to address the merits. The Allens make muc h of the fact that the Sextons have been 8 allowed to keep a pre-existing solid retaining wall. We think that -15- designation with the Town's designation of N ewman's abutting property as being located on a coastal bank. 7

The difference in nomenclature is not inconsequential; the presence of a coastal dune imports stringent environmental safeguards and building restrictions. Among other th i ngs, the desi g n a t i o n n e g a t e s a l a n d o w n e r ' s a b i l i t y t o b u i l d o n a solid foundation rather than on pilings (a course that the Allens wished to pursue) a nd adversely affects the landowner's right to install certain types of septic systems.

Once again, the Allens' plaint is without merit. While it is true that the Town allowed Newman to proceed on the basis that her pr o p e rty was situated on a coastal bank and, thus, could be constructed with a crawl-spac e d r a inage system rather than on pilings, the Town's subsequent conduct has been consistent with its treatment of th e A l l e n s. In particular, the Landis, Sexton, and Perry additions all have been required to employ pilings as opposed to solid foundations. Because the Town's opposition to the Allens' efforts to build o n a solid foundation is in no way anomalous or inconsistent, the Allens a r e not part of a class of one vis-à-vis the "coastal dune" designation. By definition, a class of one is 8fact is of no moment. The relevant point of analysis is new home

construction. In any event, the record reflects that the Town has succeeded 9 in persuading the DEP that the approval was granted in error. -16- not a class of many. Cf. C a mpbell, 434 F.3d at 1317 (explaining that a class of one suit cannot be maintained when similar burdens have been imposed on other individuals).

As a third ex e mp lar, the Allens offer some desultory charges that the Town has gone to a Massachusetts s t a t e c o u r t to appeal an approval that they rece i ved from the Massachusetts Department of Environmental Protection (DEP) regarding a p r oposed septic system. They aver that this is an instance of une q u al
treatment because the Town has not appealed such an approval in any other case.

This is whistling past the graveyard. The Allens do not offer a shred o f e v i dence to support the allegation of disparate treatment; for aught that appears, there never had been a comparable

case . G i v e n t h i s d e a r t ho f e v i d e n c e , w e f i n dt h a t t h e w rangling

over the septic system does not reveal any arbitrary divergence from the Town's conduct toward other simil a r ly situated individuals. 9 See Bell, 367 F.3d at 708 (noting that "speculation and conjecture" will not a l l o w a class of one plaintiff to survive summary judgment). The Allens' final exemplar involves floats. They say that the Town refus e d t o l icense floats designed to extend their-17-

pier despite having licensed such floats for the nearby yacht club. The district court rejected this argument, noting that the Allens' reques t f o rl i c e n s u r e , u n l i k e t h a t o f t h e y a c h t c l u b , h a dbeen denied at an earlier time by the DEP and the Army Corp of Engineers. See Cordi-Allen, 2006 WL 2033897, at *8.

On appeal, t h e Allens have offered no developed argumentation elaborating the claim that they are similarly situated to the yacht c lub. We could reject their claim on this ground alone. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (holding that "issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived"). He r e , m o r eover, the record reflects a wholly rational explanation for the disparate treatment. Thus, the Allens plainly have n o t carried their burden of demonstrating that they are similarly situated to the yacht club. See Bell, 367 F.3d at 708.

Before concluding our analysis, we add a postscript. At oral a r g u m e n t in this court, the Allens protested that a strict interpretation of the "similarly situated" r e q u i rement — an interpretation to which w e h a v e adhered in this and earlier cases

— w o u l dl i m i t c l a s s o fo n e l a n d

- u s e c l a i m s t o c i r c u m s t a n c es involving attempts to build ident i c a l structures on identical parcels. This criticism is unjustifi e d
. The test, properly understood, does not demand identicality. It simply requires that class of one plaintiffs dem o nstrate that their comparators are-18-

similar in relevant respects. See Barrington Cove, 246 F.3d at 8. The Allens have fallen well short of that mark.

We need go no further. The Olech class o f o n e suit serves an important but relat i v e l y n a r row function. It is not a vehicle for federalizing run-of-the-mine zoning, environmental, and licensing decisions. In this instance, the Allens — with their eyes wide open — purchased an undersized lot in an ecologically sensitive area. They could not reasonably have expected to have a free hand in developing the property. While the record reflects that the Town has not been particularly accommodating, the Alle n s have not pre s e n t e d probative evidence sufficient to create a genuine issue of material fact as to the existence of disparate treatment between them and other similarly situat e d persons. Accordingly, the district court did not err in entering summary judgment for the Town on the equal protection claim.

Affirme d
. C o s ts shall be taxed in favor of the Town.