1 15-2646-cv 33 Seminary LLC et al. v. The City of Binghamton et al.



### UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NO T REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the 1 Thurgood Marshall United States Courthouse, 40 Fole y Square, in the City of New York, on the 2 23 rd day of November, two thousand sixteen. 3 4 Present: 5 R ICHARD C. W ESLEY , 6 D EBRA A NN L IVINGSTON , 7 C HRISTOPHER F. D RONEY , 8 Circuit Judges

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_____________________________________ 10 11 33 S EMINARY LLC; 31 S EMINARY LLC; 26 S EMINARY A VENUE P ROJECT 12 LLC, 13 14 Plaintiffs-Appellants , 15 16 v. 15-2646 17 18 T HE C ITY OF B INGHAMTON ; M ATTHEW T. R YAN , Individually and as 19 Mayor of the City of Binghamton; K ENNETH J. F RANK , Individually and as 20 Corporation Counsel for the City of Binghamton; T HOMAS C OSTELLO , 21 Individually and as Supervisor of Building and Construction and Code 22 Enforcement for the City of Binghamton; D AVID C HADWICK , Individually 23 and as the Former Supervisor of Build ing and Construction for the City of 24 Binghamton; K EVIN E SWORTHY , Individually and as the Former Building 25 Inspector of the City of Binghamton; J OHN S TELLA , Individually and as 26 Chairman of the Planning Commi ssion of the City of Binghamton; M ARK 27 Y OUNG , Individually and as a Member of the Planning Commission of the 28 City of Binghamton; M ICHELLE O’L OUGHLIN , Individually and as a 29 Member of the Planning Commissi on of the City of Binghamton; R OBERT 30 P OMPI , Individually and as a Member of the Planning Commission of the 312 City of Binghamton; T HOMAS P OLLACK , Individually and as a Member of 1 the Planning Commission of the City of Binghamton; E ARL W ALKER , 2 Individually and as a Member of th e Planning Commission of the City of 3 Binghamton; J AMES W ORHACH , Individually and as a Member of the 4 Planning Commission of the City of Binghamton; K ELLY L IGEIKIS , 5 Individually and as a Member of th e Planning Commission of the City of 6 Binghamton; J OANN M ASTRONARDI , Individually and as Chairwoman of 7 the Zoning Board of Appeals for the City of Binghamton; V LADIMYR 8 G OUIN , Individually and as a Member of the Zoning Board of Appeals for 9 the City of Binghamton; D ONALD H ANRAHAN , Individually and as a 10 Member of the Zoning Board of Appeals for the City of Binghamton; 11 C ARMAN G ARUFI , Individually and as a Member of the Zoning Board of 12 Appeals for the City of Binghamton; G ERALD O’B RIEN , Individually and 13 as a Member of the Zoning Board of Appeals for the City of Binghamton, 14 15 Defendants-Appellees

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_____________________________________ 17 18 For Plaintiffs-Appellants: B RIAN L EHMAN , Esq., Queens, NY 19 20 For Defendants-Appellees: J ANET D. C ALLAHAN , Hancock Estabrook, LLP, 21 Syracuse, NY (Daniel Berman, Hancock Estabrook, 22 LLP, Syracuse, NY; Brian M. Seachrist, Office of the 23 Corporation Counsel for the City of Binghamton, 24 Binghamton, NY, on the brief) 25 26 Appeal from a judgment of the United States District Court for the Northern District of 27 New York (D’Agostino, J .) 28 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 29 DECREED that the judgment of the district court is AFFIRMED

. 30 Plaintiffs-Appellants appeal from the judgment of the United States Di strict Court for the 31 Northern District of New York (D’Agostino, J .) granting summary judgment in favor of 32 Defendants-Appellees on all of Plaintiffs-Appella nts’ outstanding claims. In this order, we 33 address the district court’s su mmary judgment determination as to Plaintiff- Appellant 26 34 Seminary Avenue Project LLC (“26 Seminary LLC”) , with respect to those claims for which it 353 raises an issue on appeal. 1 We review the district court’s grant of summary judgment de novo , 1 construing evidence in the light most favorable to the party against whom summary judgment 2 has been granted and drawing all r easonable inferences in its favor. Harris v. Miller , 818 F.3d 3 49, 57 (2d Cir. 2016) (per curiam). We assume the parties’ familiarity with the facts, 4 procedural history of the cas e, and the issues on appeal. 5 This case concerns the constitutionality of cer tain zoning decisions made by the City of 6 Binghamton’s Planning Co mmission and Zoning Board of Appeals (“ZBA”) with respect to the 7 property owned by 26 Seminary LLC at 26 Semina ry Avenue in Binghamton, New York (the 8 “Property”). Nearly two years after 26 Semi nary LLC purchased the Property, the Binghamton 9 City Council adopted Ordinance 009-009, which was approved by the mayor on March 22, 2009. 10 The ordinance amended certain sections of Chap ter 410 of the Zoning Ordinance of the City of 11 Binghamton to require the provisio n of increased off-street parki ng, including in re sidential areas 12 of the city. This requirement was triggered, inter alia , when a building owner sought to modify 13 the use of an existing st ructure on the property. 14 Soon after the new ordinance was adopted, 26 Seminary LLC sought to renovate and 15 modify the use of certain parts of the structure on the Property. It submitted an application to 16 the ZBA for an area variance from the newly ad opted minimum off-street parking requirement. 17 Applying the relevant rules, th e City of Binghamton determined that the amended ordinance 18 necessitated that five off-street parking spaces be provided for the Property. At the time of the 19 public hearing on 26 Seminary LLC’s variance applic ation, 26 Seminary LLC represented that it 20 was unable to provide any off-street parking. 21

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 Thereafter, the ZBA denied 26 Seminary LLC’s application for a variance. 26 1 Seminary LLC points to this denial, as well as cer tain other events taking place over the course 2 of Plaintiffs-Appellants’ inter actions with the City of Binghamton and its agencies, as grounding 3 a non-class-based equa l protection claim. 4 The district court analyzed 26 Seminary LLC ’s claim under both the “class of one” equal 5 protection standard articulated in Village of Willowbrook v. Olech , 528 U.S. 562 (2000) (per 6 curiam), which held that a plaintiff need only show that he “has been intentionally treated 7 differently from others similarly situated and that there is no rational basis for the difference in 8 treatment,” id. at 564, and under a “s elective enforcement” theory, which requires a showing that 9 the allegedly selective treatment was based on impermissible considerations, including 10 “malicious or bad faith inte nt to injure a person,” LeClair v. Saunders , 627 F.2d 606, 609–10 11 (2d Cir. 1980). In Bizzarro v. Miranda , 394 F.3d 82 (2d Cir. 2005), we construed these as two 12 distinct forms of non-class-based equa l protection claims, holding that a LeClair -type claim 13 focuses on whether the alleged animus cause d the disparate treatment, whereas an Olech -type 14 claim looks to “whether the offi cial[s’] conduct was rationally re lated to the accomplishment of 15 the work of their agency.” Id. at 86–89. In addition, a plaintiff seeking to bring a 16 non-class-based equal protection cl aim must show that the defenda nt “intentionally treated them 17 differently from other[s] similarly situated.” Id. at 86. 18 Although we have previously reco gnized that there is some c onfusion about th e extent to 19 which the Supreme Court’s holding in Olech affected our holding in LeClair , see Gray v. 20 Maquat , No. 15-2448, 2016 WL 5340256, at *1 n.1 (2d Cir. Sept. 21, 2016), we need not resolve 21 that confusion here. Under either standard, a plai ntiff must make some showing of different or 225 unequal treatment. 2 Here, however, 26 Seminary LLC was unable to point to any comparable 1 property that might provide a basis for estab lishing its equal protection claim. The two 2 properties pointed to as comparators before the district court – 63 Front Street and 46 Seminary 3 Avenue – each differed from 26 Seminary Avenue in important ways. For instance, unlike the 4 Property, the 46 Seminary Avenue site involved c onversion from one commercial use to another. 5 The 63 Front Street site had an entirely differe nt classification for zoning purposes than the 6 Property. More importantly, moreover, both of th ese sites afforded some off-street parking 7 accommodation as a component of their proposed site plans. Specifically, the site plan for 46 8 Seminary Avenue included four parking spots. The site plan for 63 Front Street also included 9 four on-site spaces, and approval fo r the 63 Front Street site plan was conditioned on entry into a 10 lease agreement for one additional parking space within 500 feet of the property. 11 The site plan for 26 Seminary Avenue, on th e other hand, offered no off-street parking. 12 Because 26 Seminary LLC can point to no substant ially comparable instance of the City of 13 Binghamton’s application of its zoning law with resp ect to the very issue that is the focus of its 14 equal protection claim, summar y judgment is appropriate. See Cine SK8, Inc. v. Town of 15
Henrietta , 507 F.3d 778, 791 (2d Cir. 2007) (holding that summary judgment is appropriate in 16 the absence of a substantially comparable propert y). 26 Seminary LLC points to our decision in 17 LaTrieste Restaurant & Cabaret Inc. v. Village of Port Chester , 40 F.3d 587 (2d Cir. 1994), as 18 suggesting that a comparable property is not need ed to raise an equal protection claim because 19 differential treatment of one property by a govern mental authority over time is sufficient for a 20 non-class-based equal protection claim. LaTrieste , however, stands only for the uncontroversial 21

2 We also have not yet resolved whether, assuming tw o 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 proposition that where a governmental agency inte ntionally singles out a target by enforcing a 1 law that it had previously declined to enforce ag ainst that very entity, th e target of enforcement 2 may, in certain circumstances, be able to raise a selective enforcement claim. That is not the 3 situation here. The district court therefor e appropriately granted summary judgment to 4 Defendants-Appellees. 5
* * * 6 We have considered Plaintiffs-Appellants’ remaining arguments and find them to be 7 without merit. Accordingly, we AFFIRM the judgment of the district court. 8
FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk 10