Toussie v. Town Board of East Hampton

US District Court, E.D. New York, No. 08 CV 1922 (DRH)(WDW), June 18, 2012 (Order): Throws out complaint of denial of equal protection based on malice for Town’s requirement of a conservation easement in subdivision.

The developer of the Manor Lane subdivision (Toussie) alleged that the Town of East Hampton’s subdivision approval condition requiring Toussie to grant a conservation easement and trail easement was punishment for Toussie’s refusal to sell land to the Town. Because, Toussie alleged, the Town had not imposed a similar requirement on a “similarly situated adjacent parcel” (“Briar Croft”), Toussie claimed the Town’s requirement  was a denial of equal protection “with malice”.

The same claim had been dismissed by the Court without prejudice in 2010, because the Court found that Toussie had not shown that the Town was motivated by malice. That decision was based on the Second Circuit holding in Bizzarro v. Miranda, 394 F.3d 82 (2d Cir. 2005). Under Bizarro, it would not be a denial of equal protection for a governmental entity to “punish” someone to secure compliance with a legitimate government objective. When Toussie amended its complaint, the Court asked for supplemental briefs on the application of Bizarro  to a situation in which there may be both a legitimate government objective and a retaliatory objective.

The Court then concluded that the Bizarro issue the Court itself had raised was moot, because the Briar Croft development and Toussie’s Manor Lane development were not, in fact, similar in a material way. The Court,  taking note of the “markedly distinct developmental histories” of the two developments, found that Toussie’s allegation that Briar Croft was similar to Manor Lane was facially implausible; accordingly, there was no “similar parcel”.  Without a similar adjacent parcel treated in dissimilar way, the Court ordered that Toussie’s claim must  be dismissed.

Decision available at,22.

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