Second Circuit Court of Appeals Affirms Dismissal of Selective Enforcement and Equal Protection Claims in Treehouse Permitting Case

This post was authored by Amy Lavine, Esq.

in Lepper v. Scordinothe Second Circuit Court of Appeals affirmed the dismissal of selective enforcement and class-of-one equal protection claims involving a treehouse that was built without a permit.

The court first explained that on a selective enforcement claim, a plaintiff must show that “(1) the person, compared with others similarly situated, was selectively treated, and (2) the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person.” Similarly, plaintiffs who allege class-of-one equal protection claims must show that they have “been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.”

Under either equal protection test, the court found that the summary judgment was properly granted because the property owner, Lepper, failed to identify any similar situated treehouse owners. In particular, the village had not received complaints about any other treehouses, and Lepper’s treehouse was also the only treehouse that was built in violation of the applicable setback requirements. “At the bottom,” the court concluded, “Lepper’s argument amounts to a claim that the village is unable to enforce its building code against the Leppers because it may have failed to enforce the code against other treehouse owners. But the Equal Protection Clause does not require villages to enforce their ordinances in every instance in order to retain the ability to enforce them at all.”

Lepper v. Scordino2023 WL 4004220 (2d Cir 6/15/23).