#### Pilar CONDE, Plaintiff-Appellant, v. TOWN OF SHARON; The Board of Selectmen, Town of Sharon; Malcolm Brown, I/O First Selectman of Board; Thomas H. Bartman, I/O Selectman of Board; and John B. Mathews, I/O Selectman of Board, Defendants-Appellees.

No. 10-3001-cv.

United States Court of Appeals, Second Circuit.

April 29, 2011.

Barrie L. Goldstein, Barrie L. Goldstein, LLC, (Kenneth R. Slater, Jr., Of Counsel, on the brief), Washington Depot, CT, for Plaintiff-Appellant.

Frederick M. O’Brien, Regnier, Taylor, Curran & Eddy, Hartford, CT, for Defendants-Appellees.

PRESENT: ROBERT D. SACK, PETER W. HALL, DEBRA ANN LIVINGSTON, Circuit Judges.

SUMMARY ORDER

In this dispute arising from the Town of Sharon’s refusal to concede to plaintiffs request for permission to erect a gate across the town’s recreational easement, plaintiff Pilar Conde appeals principally from the district court’s decision granting summary judgment for the defendants on her procedural and substantive due pro*27cess claims. Conde also appeals the district court’s denial of her cross-motion for summary judgment and its dismissal of her state law claims without prejudice. We assume the parties’ familiarity with the underlying facts and procedural history of the case.

I. Discussion

We review a district court’s grant of summary judgment *de novo. Roe v. City of Waterbury,*542 F.3d 31, 35 (2d Cir.2008). Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a).

A. *Procedural Due Process Claim*

In order to claim a violation of her right to due process, Conde must first establish that she had a constitutionally protected property interest at stake. In land use cases, we employ an “entitlement” inquiry to determine whether the landowner has a legitimate claim of entitlement to the sought after land use. *See RRI Realty Corp. v. Inc. Vill. of Southampton,*870 F.2d 911, 918 (2d Cir.1989); *see also Yale Auto Parts, Inc. v. Johnson,*758 F.2d 54, 58-59 (2d Cir.1985) (explaining that 42 U.S.C. § 1983 does not “guarantee a person the right to bring a federal suit for denial of due process in every proceeding in which he is denied a license or a permit,” lest the federal courts be “overburdened ... beyond capacity”).

Thus, to establish a legitimate property interest entitled to Fourteenth Amendment procedural due process protection, a plaintiff must demonstrate that she has a “legitimate claim of entitlement” to that property interest. *Id.*at 58 (quoting *Board of Regents v. Roth,*408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). She does so by showing that “absent the alleged denial of due process, there is either a certainty or a very strong likelihood that the application would have been granted.” *Id.*at 59. *See also RRI Realty,*870 F.2d at 917-18 (affirming *Yale Auto Parts*entitlement inquiry for land use regulation cases); *see also Clubside, Inc. v. Valentin,*468 F.3d 144, 152-54 (2d Cir.2006); *Zahra v. Town of Southold,*48 F.3d 674, 680 (2d Cir.1995). “Application of the test must focus primarily on the degree of discretion enjoyed by the issuing authority.” *RRI Realty,*870 F.2d at 918. Where there is a high degree of official discretion in whether to grant or deny an application for a particular land use, a plaintiff cannot show the requisite “certainty” necessary to demonstrate a legitimate claim of entitlement to that use and thereby establish that a constitutionally protected property interest is at stake. *See, e.g., Kelly Kare, Inc. v. O’Rourke,*930 F.2d 170, 175 (2d Cir.1991) (“If the statute, regulation, or contract in issue vests in the state significant discretion over the continued conferral of that benefit, it will be the rare case that the recipient will be able to establish an entitlement to that benefit.”).

Even assuming the town’s decision regarding Conde’s request for permission to construct a gate across the town’s easement rises to the level of state action for purposes of her due process claims, Conde has not asserted, much less established, a constitutionally protected property right. Conde herself states in her briefing on appeal that this case boils down merely to “a dispute between a landowner, Conde, and the Town, her neighbor” Appellant’s Br. at 3. In this respect, Conde states that the town lacks the authority unilaterally to determine whether the gate she proposes to construct infringes on the town’s easement, as this determination is the province of the Connecticut state courts. *Id.*at 15. Conde asserts that she “ha[s] every right to construct the proposed vehicular gate without the Town’s permission.” *Id.*at 19; *cf. Ctr. Drive-In*
      *28
      *Theatre, Inc. v. City of Derby,*166 Conn. 460, 352 A.2d 304, 307 (1974) (noting that “[t]he owner of land over which an easement has been granted has, by law, all the rights and benefits of ownership consistent with the existence of an easement,” whereas “[t]he owner of an easement has all rights incident or necessary to its proper enjoyment, but nothing more”). Conde, therefore, sought solely the town’s *acquiescence*to the proposed gate — acquiescence that the town had full discretion to decline to grant. Accordingly, because Conde does not claim a legitimate entitlement to the town’s consent to her construction of the gate, she has failed to allege a protected property right of constitutional proportions. *See, e.g., RRI Realty,*870 F.2d at 918.

B. *Substantive Due Process*

“Substantive due process protects individuals against government action that is arbitrary, conscience-shocking, or oppressive in a constitutional sense, but not against government action that is incorrect or ill-advised.” *Lowrance v. Achtyl,*20 F.3d 529, 537 (2d Cir.1994) (internal quotation marks and citations omitted). “Moreover, government action might be so arbitrary that it violates substantive due process regardless of the fairness of the procedures used.” *Id.*(internal quotation marks omitted). The first step when determining whether a plaintiff has advanced a valid substantive due process claim “is to identify the constitutional right at stake.” *Id.*In the absence of a constitutionally protected right, as noted above, Conde’s substantive due process claim must also fail. Furthermore, even if there were a constitutionally protected right at issue, Conde has failed to point to any facts establishing that the town’s conduct with respect to her request to build a gate was arbitrary, conscience-shocking, or oppressive. The district court correctly granted summary judgment for the defendants on this count as well.

II. Conclusion

We have considered all of Conde’s remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.