1 

15-2646-cv 

33 Seminary LLC et al. v. The City of Binghamton et al.

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER 

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED 

BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. 

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY 

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE 

NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A 

COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 

2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 

23rd 3 day of November, two thousand sixteen. 

4 

5 Present: 

6 RICHARD C. WESLEY,

7 DEBRA ANN LIVINGSTON, 

8 CHRISTOPHER F. DRONEY,

9 Circuit Judges. 

10 _____________________________________ 

11 

12 33 SEMINARY LLC; 31 SEMINARY LLC; 26 SEMINARY AVENUE PROJECT 

13 LLC, 

14 

15 Plaintiffs-Appellants, 

16 

17 v. 15-2646 

18 

19 THE CITY OF BINGHAMTON; MATTHEW T. RYAN, Individually and as 

20 Mayor of the City of Binghamton; KENNETH J. FRANK, Individually and as 

21 Corporation Counsel for the City of Binghamton; THOMAS COSTELLO, 

22 Individually and as Supervisor of Building and Construction and Code 

23 Enforcement for the City of Binghamton; DAVID CHADWICK, Individually 

24 and as the Former Supervisor of Building and Construction for the City of 

25 Binghamton; KEVIN ESWORTHY, Individually and as the Former Building 

26 Inspector of the City of Binghamton; JOHN STELLA, Individually and as 

27 Chairman of the Planning Commission of the City of Binghamton; MARK 

28 YOUNG, Individually and as a Member of the Planning Commission of the 

29 City of Binghamton; MICHELLE O’LOUGHLIN, Individually and as a 

30 Member of the Planning Commission of the City of Binghamton; ROBERT 

31 POMPI, Individually and as a Member of the Planning Commission of the 
2 

1 City of Binghamton; THOMAS POLLACK, Individually and as a Member of 

2 the Planning Commission of the City of Binghamton; EARL WALKER, 

3 Individually and as a Member of the Planning Commission of the City of 

4 Binghamton; JAMES WORHACH, Individually and as a Member of the 

5 Planning Commission of the City of Binghamton; KELLY LIGEIKIS, 

6 Individually and as a Member of the Planning Commission of the City of 

7 Binghamton; JOANN MASTRONARDI, Individually and as Chairwoman of 

8 the Zoning Board of Appeals for the City of Binghamton; VLADIMYR 

9 GOUIN, Individually and as a Member of the Zoning Board of Appeals for 

10 the City of Binghamton; DONALD HANRAHAN, Individually and as a 

11 Member of the Zoning Board of Appeals for the City of Binghamton; 

12 CARMAN GARUFI, Individually and as a Member of the Zoning Board of 

13 Appeals for the City of Binghamton; GERALD O’BRIEN, Individually and 

14 as a Member of the Zoning Board of Appeals for the City of Binghamton, 

15 

16 Defendants-Appellees. 

17 _____________________________________ 

18 

19 For Plaintiffs-Appellants: BRIAN LEHMAN, Esq., Queens, NY 

20 

21 For Defendants-Appellees: JANET D. CALLAHAN, Hancock Estabrook, LLP, 

22 Syracuse, NY (Daniel Berman, Hancock Estabrook, 

23 LLP, Syracuse, NY; Brian M. Seachrist, Office of the 

24 Corporation Counsel for the City of Binghamton, 

25 Binghamton, NY, on the brief) 

26 

27 Appeal from a judgment of the United States District Court for the Northern District of 

28 New York (D’Agostino, J.) 

29 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

30 DECREED that the judgment of the district court is AFFIRMED. 

31 Plaintiffs-Appellants appeal from the judgment of the United States District Court for the 

32 Northern District of New York (D’Agostino, J.) granting summary judgment in favor of 

33 Defendants-Appellees on all of Plaintiffs-Appellants’ outstanding claims. In this order, we 

34 address the district court’s summary judgment determination as to Plaintiff-Appellant 26 

35 Seminary Avenue Project LLC (“26 Seminary LLC”), with respect to those claims for which it 
3 

raises an issue on appeal.1 1 We review the district court’s grant of summary judgment de novo, 

2 construing evidence in the light most favorable to the party against whom summary judgment 

3 has been granted and drawing all reasonable inferences in its favor. Harris v. Miller, 818 F.3d 

4 49, 57 (2d Cir. 2016) (per curiam). We assume the parties’ familiarity with the facts, 

5 procedural history of the case, and the issues on appeal. 

6 This case concerns the constitutionality of certain zoning decisions made by the City of 

7 Binghamton’s Planning Commission and Zoning Board of Appeals (“ZBA”) with respect to the 

8 property owned by 26 Seminary LLC at 26 Seminary Avenue in Binghamton, New York (the 

9 “Property”). Nearly two years after 26 Seminary LLC purchased the Property, the Binghamton 

10 City Council adopted Ordinance 009-009, which was approved by the mayor on March 22, 2009. 

11 The ordinance amended certain sections of Chapter 410 of the Zoning Ordinance of the City of 

12 Binghamton to require the provision of increased off-street parking, including in residential areas 

13 of the city. This requirement was triggered, inter alia, when a building owner sought to modify 

14 the use of an existing structure on the property. 

15 Soon after the new ordinance was adopted, 26 Seminary LLC sought to renovate and 

16 modify the use of certain parts of the structure on the Property. It submitted an application to 

17 the ZBA for an area variance from the newly adopted minimum off-street parking requirement. 

18 Applying the relevant rules, the City of Binghamton determined that the amended ordinance 

19 necessitated that five off-street parking spaces be provided for the Property. At the time of the 

20 public hearing on 26 Seminary LLC’s variance application, 26 Seminary LLC represented that it 

21 was unable to provide any off-street parking. 

 

1

 Plaintiffs-Appellants 33 Seminary LLC and 31 Seminary LLC have waived any appeal of the district court’s 

grant of summary judgment to Defendants-Appellees. 26 Seminary LLC has also waived its appeal of the 

grant of summary judgment with respect to certain of the claims before the district court. This summary 

order addresses 26 Seminary LLC’s remaining claims. 
4 

1 Thereafter, the ZBA denied 26 Seminary LLC’s application for a variance. 26 

2 Seminary LLC points to this denial, as well as certain other events taking place over the course 

3 of Plaintiffs-Appellants’ interactions with the City of Binghamton and its agencies, as grounding 

4 a non-class-based equal protection claim. 

5 The district court analyzed 26 Seminary LLC’s claim under both the “class of one” equal 

6 protection standard articulated in Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per 

7 curiam), which held that a plaintiff need only show that he “has been intentionally treated 

8 differently from others similarly situated and that there is no rational basis for the difference in 

9 treatment,” id. at 564, and under a “selective enforcement” theory, which requires a showing that 

10 the allegedly selective treatment was based on impermissible considerations, including 

11 “malicious or bad faith intent to injure a person,” LeClair v. Saunders, 627 F.2d 606, 609–10 

12 (2d Cir. 1980). In Bizzarro v. Miranda, 394 F.3d 82 (2d Cir. 2005), we construed these as two 

13 distinct forms of non-class-based equal protection claims, holding that a LeClair-type claim 

14 focuses on whether the alleged animus caused the disparate treatment, whereas an Olech-type 

15 claim looks to “whether the official[s’] conduct was rationally related to the accomplishment of 

16 the work of their agency.” Id. at 86–89. In addition, a plaintiff seeking to bring a 

17 non-class-based equal protection claim must show that the defendant “intentionally treated them 

18 differently from other[s] similarly situated.” Id. at 86. 

19 Although we have previously recognized that there is some confusion about the extent to 

20 which the Supreme Court’s holding in Olech affected our holding in LeClair, see Gray v. 

21 Maquat, No. 15-2448, 2016 WL 5340256, at *1 n.1 (2d Cir. Sept. 21, 2016), we need not resolve 

22 that confusion here. Under either standard, a plaintiff must make some showing of different or 
5 

unequal treatment.2 1 Here, however, 26 Seminary LLC was unable to point to any comparable 

2 property that might provide a basis for establishing its equal protection claim. The two 

3 properties pointed to as comparators before the district court – 63 Front Street and 46 Seminary 

4 Avenue – each differed from 26 Seminary Avenue in important ways. For instance, unlike the 

5 Property, the 46 Seminary Avenue site involved conversion from one commercial use to another. 

6 The 63 Front Street site had an entirely different classification for zoning purposes than the 

7 Property. More importantly, moreover, both of these sites afforded some off-street parking 

8 accommodation as a component of their proposed site plans. Specifically, the site plan for 46 

9 Seminary Avenue included four parking spots. The site plan for 63 Front Street also included 

10 four on-site spaces, and approval for the 63 Front Street site plan was conditioned on entry into a 

11 lease agreement for one additional parking space within 500 feet of the property. 

12 The site plan for 26 Seminary Avenue, on the other hand, offered no off-street parking. 

13 Because 26 Seminary LLC can point to no substantially comparable instance of the City of 

14 Binghamton’s application of its zoning law with respect to the very issue that is the focus of its 

15 equal protection claim, summary judgment is appropriate. See Cine SK8, Inc. v. Town of 

16 Henrietta, 507 F.3d 778, 791 (2d Cir. 2007) (holding that summary judgment is appropriate in 

17 the absence of a substantially comparable property). 26 Seminary LLC points to our decision in 

18 LaTrieste Restaurant & Cabaret Inc. v. Village of Port Chester, 40 F.3d 587 (2d Cir. 1994), as 

19 suggesting that a comparable property is not needed to raise an equal protection claim because 

20 differential treatment of one property by a governmental authority over time is sufficient for a 

21 non-class-based equal protection claim. LaTrieste, however, stands only for the uncontroversial 

 

2

 We also have not yet resolved whether, assuming two entirely separate viable forms of equal protection 

claim exist, different standards govern the showing necessary to demonstrate unequal treatment under each of 

LeClair-type and Olech-type claims. 
6 

1 proposition that where a governmental agency intentionally singles out a target by enforcing a 

2 law that it had previously declined to enforce against that very entity, the target of enforcement 

3 may, in certain circumstances, be able to raise a selective enforcement claim. That is not the 

4 situation here. The district court therefore appropriately granted summary judgment to 

5 Defendants-Appellees. 

6 * * * 

7 We have considered Plaintiffs-Appellants’ remaining arguments and find them to be 

8 without merit. Accordingly, we AFFIRM the judgment of the district court. 

9 FOR THE COURT: 

10 Catherine O’Hagan Wolfe, Clerk