Development

Selective Enforcement Claim Against Town Dismissed

Thomas v. Genova
2025 WL 583182
U.S. Court of Appeals, Second Circuit
(unsigned opinion)
In property owners’ action alleging malicious prosecution, selective enforcement of the zoning code, and intentional discrimination, property owners appealed from federal district court’s grant of summary judgment to the town and town officials. The Second Circuit affirmed, holding that property owners had not raised questions of fact warranting trial.
Property owners purchased what they believed was a two-family house and began renting out the upstairs unit. Responding to a civilian complaint, the town code enforcement officer discovered that the house, which was located in a single-family zoning district, had two doorbells, two electric meters, and two cable television lines. Further research revealed that the house did not have a certificate of occupancy for two units. The town brought a criminal prosecution against one of the owners for operating a two-family house in a single-family district and for operating the two-family house without a valid certificate of occupancy. The owner was acquitted, and then brought this action against the town and town officials, alleging malicious prosecution, selective enforcement, and intentional discrimination. The district court granted summary judgment to the town and its officials.
In affirming, the Second Circuit first held that the malicious prosecution claim could not survive because under New York law, probable cause is a complete defense to a malicious prosecution claim. The court then turned to the selective enforcement claim, and concluded that no reasonable jury could conclude that property owner was selectively treated with respect to comparable homeowners. The court noted that two of the comparators offered by property owner had proper certificate of occupancies, and two of the other had actually been investigated by town officials. Turning to the intentional discrimination claim, the court noted that the town code enforcement officer had not even met property owner until after bringing the criminal prosecution, negating claims of racial discrimination.
Comment
A plaintiff may avoid summary judgment on a selective enforcement cause of action under the equal protection clause by producing evidence that, compared to others similarly situated, a zoning board selectively treated the plaintiff adversely because of race or religious identity . In Vlahadamis v. Kiernan, 837 F Supp 2d, the Court held that operators of a diner who began to host “Hispanic Night” events presented enough evidence to get to a jury on their claim that the town selectively enforced violations against them due to racial animus. Like many other restaurants who began playing music at night, the diner operators received citations due to alleged zoning violations, but the diner was the only one reported to the State Liquor Associations (SLA) for the violations. The court concluded that reporting only the diner operators to the SLA, coupled with evidence of increased policing surrounding their business, would enable a reasonable jury to conclude that the town selectively targeted the plaintiffs based on racial discriminatory motives. Conversely, a court will dismiss a selective enforcement claim that is based only on speculation that race may have contributed to selective treatment. In Alfaro v. Labrador, 2009 WL 2525128, the court dismissed a Hispanic auto body repair shop owner’s selective enforcement claim because the only evidence of discriminatory motivation was the fact that the zoning board’s action was consistent with the recommendations of a neighboring competitor who consistently used racial slurs against the shop owner. The court was unwilling to impute to the board the racial animus of his neighbor, and although the claimant was able to show that his business was the only to be targeted for search warrants and police raids, his race-based claim failed because he had no evidence that the town targeted him due to his race.
A plaintiff may also bring a “class of one” equal protection claim where one is singled out intentionally for arbitrary or irrational treatment without a rational basis. In Alfaro, even though the Court dismissed the claimant’s race-based selective enforcement claim, the claimant’s “class of one” claim survived because the town could not set forth any logical basis or legitimate government policy explaining why it targeted the claimant and not his neighbors who engaged in identical zoning violations, and the town did not claim that selective treatment of the claimant was a mistake.
For both selective enforcement and “class of one” equal protection actions, it is imperative that the plaintiff show that appropriate comparators existed. Typically, a court will find businesses to be similarly situated if they are close in proximity and have engaged in similar activity. For example, In Vlahadamis, the court held that because plaintiff’s late night diner business was close in proximity to other establishments of the same nature they were “similarly situated.” Furthermore, the claimant need not to be similarly situated to all comparators to be successful in a “class of one” claim. The court in Bond v. Zoning Board, 2005 WL 8156961, denied the board’s summary judgment motion, rejecting the board’s argument that landowners were not singled out when denied a permit to expand their homes because other “environmentally constrained” lots were denied expansion permits. The court indicated that authority requires a showing of selective treatment among each and every similarly situated person.