Full opinion text
DECISION AND ORDER DAVID G. LARIMER, District Judge. Plaintiff, John Casciani, commenced this action under 42 U.S.C. § 1983 against defendants the Town of Webster, New York (“the Town”) and Webster Town Board Supervisor Ronald Nesbitt, alleging that defendants violated plaintiffs rights under the First and Fourteenth Amendments to the United States Constitution. Specifically, this action arises out of defendants’ enactment of an ordinance (“the ordinance”) prohibiting any private aircraft from taking off or landing anywhere within Webster, a suburb of Rochester, N.Y. Plaintiff is a Webster resident who owns a helicopter that he has, in the past, flown from and to a landing pad that he has constructed on his property. Defendants have moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Dkt. # 10). Plaintiff has cross-moved to amend his complaint pursuant to Rule 15(a) (Dkt. #13). On April 17, 2009, the Court issued an order (“Rule 12(d) Order”) (Dkt. # 21) notifying the parties of the Court’s intention to convert defendants’ motion to dismiss to a Rule 56 motion for summary judgment, under Rule 12(d) of the Federal Rules of Civil Procedure. Pursuant to that order, the parties have submitted additional evidence and other papers. See Dkt. ## 22-28. Having reviewed all the motion papers and the evidence before me, I conclude that defendants are entitled to summary judgment. Defendants’ motion is therefore granted, plaintiffs cross-motion to amend his complaint is denied, and the complaint is dismissed. BACKGROUND In 2003, plaintiff purchased a helicopter for his personal use. To accommodate that use, plaintiff constructed a fourteen-square-foot concrete landing pad on his residential property in Webster. When plaintiff bought and began flying his helicopter, the Town of Webster Code contained no provisions expressly dealing with private aviation or private airports within the Town. A state statute, however, New York General Business Law § 249, did provide in part that “[n]o person shall ... establish a privately-owned airport ... except by authorization of the governing body of the city, village or town in which such airport or any part thereof is proposed to be established or improved.” For purposes of the statute, an “airport” is “any locality ... which is used or intended to be used for the landing and take-off of aircraft....” See N.Y. Gen. Bus. L. § 240(4), (5) (incorporated by reference in § 249). Plaintiff alleges that shortly after he began operating his helicopter on his property, George Winter, the Town’s code enforcement officer, cited plaintiff for over a dozen code violations, mostly for matters that were not directly or explicitly related to plaintiffs helicopter, such as having unregistered motor vehicles parked on his property. Plaintiff alleges that other, similarly situated Webster residents were not so charged. According to plaintiff, the purpose of the citations was to harass him because of plaintiffs continued use of his helicopter. Plaintiff alleges that in November 2004, the Town’s attorney, Charles Genese, asked plaintiff to “come down and make [the use of his helicopter] legal,” apparently meaning that plaintiff should seek the Town’s authorization to operate a private airport under § 249. Amended Complaint ¶34. Although plaintiff asserted that he was in compliance with all applicable laws, Genese responded that some Town officials disagreed, and he again asked plaintiff to attend an upcoming Town Board meeting to “make it legal.” Amended Complaint ¶ 39. Plaintiff did attend a meeting of the Town Board in January 2005. In advance of the meeting, plaintiff prepared a “heliport proposal,” which he describes as “an extremely supportive document regarding Plaintiffs use of his helicopter on his personal land.” Amended Complaint ¶47. The proposal included letters from some of plaintiffs neighbors, as well as the local Are, police and highway departments, “all attesting to the benefits of the helicopter.” Amended Complaint ¶ 48. At the meeting, plaintiff distributed copies of his proposal to the Board members. Plaintiff alleges, however, that after publicly “humiliating, ridiculing, harassing and belittling” plaintiff for two and a half hours, then-Town Supervisor Cathryn Thomas declared that a public hearing would be held, at a local auditorium, for the express purpose of addressing plaintiffs operation of his helicopter. Amended Complaint ¶ 52. Subsequent to the January meeting, Genese spoke again with plaintiff, and allegedly asked plaintiff to “withdraw [Plaintiffs] application [under § 249].” Amended Complaint ¶ 53. Since that appears to be the first mention made in the complaint of any such application, it is not clear if that was a reference to plaintiffs “heliport proposal,” or if plaintiff had previously submitted a formal application for authorization of an “airport” pursuant to § 249. In any event, Genese allegedly told plaintiff that the Town was preparing to draft an ordinance of some kind regulating the operation of private aircraft within Webster, but he assured plaintiff that plaintiff would be “grandfathered in,” and that plaintiff would be allowed to continue flying his helicopter. Based on Genese’s assurances, plaintiff withdrew his application. The Town then formed a committee to establish zoning laws regulating the use of private aircraft and airports within Webster. For the next year, while the zoning law committee was drafting the proposed regulations, plaintiff continued to fly his helicopter as before, and, according to him, he continued to be harassed as before through the Town’s selective enforcement of various property ordinances. In February 2006, defendants completed a proposed ordinance concerning private aircraft and airports within Webster. As then drafted, the proposed ordinance provided for the creation of restricted districts within which aircraft could operate, for special use permits, and for variances with respect to aircraft use. See PI. App. vol. I, Ex. R. Public notice of the proposed ordinance was given and a public hearing was scheduled for March 2, 2006. Plaintiff and his then-attorney attended the hearing, and voiced their opposition to the proposed ordinance. Although the proposed ordinance would have allowed for private heliports in certain areas, and in other areas with a special use permit, plaintiff apparently believed that the ordinance was unduly restrictive in certain respects. Through his attorney, plaintiff objected to a number of aspects of the proposal, including its prohibition of commercial aircraft operation within Webster, and the process for obtaining the Town’s approval of operation of a private heliport, which plaintiff considered too cumbersome and time-consuming. See Minutes of Mar. 2, 2006 Town Board Meeting, PI. App. vol. I, Ex. S, at 89. Plaintiff also voiced numerous other objections to many details of the proposed ordinance. Id. at 89-96. Plaintiff alleges that Ronald Nesbitt (who had succeeded Thomas as the town supervisor) then “sua sponte legislated from the Webster Town [sic] by proposing a motion that prohibited the flying and landing” of all private aircraft with the exception of “ultralite/sport experimental aircraft.” Amended Complaint ¶71. According to plaintiff, Nesbitt’s proposals were significantly more restrictive than the ordinance that had been proposed by the zoning committee. Plaintiff alleges that Nesbitt’s proposed “ban on all private airplane and helicopter landings and a ban on all private airports and heliports was [sic] not part of the proposed law that was before the public on March 2, 2006.” Amended Complaint ¶ 73. Following that meeting, the Board drafted a new ordinance based on Nesbitt’s proposals. Plaintiff alleges that the Town Board then “convened a much smaller meeting,” and passed the new ordinance on April 6, 2006. Amended Complaint ¶ 74. The new ordinance — the stated purpose of which is to “address the operation of private airports and heliports and the operation of private aircraft in the Town of Webster and to provide for the protection of the health, safety, and welfare of the residents of the Town,” Dkt. # 6 Ex. A at § 76-3 — added Chapter 76 to the Town of Webster Code. That chapter, entitled “Aircraft, Airports, and Heliports, Private,” provides in part that “[e]xcept as provided otherwise in this chapter, no private airplanes, private helicopters, private balloons, private hang-gliders, or private rotorcraft of any kind shall be permitted to take off or land or discharge or take on passengers within the boundaries of the Town of Webster.” Dkt. # 6 Ex. A at § 76-4. The ordinance also provides that “[n]o private heliport or airport will be permitted to be built within the boundaries of the Town of Webster.” Id, at § 76-5. Plaintiff does not dispute that the operation of his helicopter and the maintenance of his landing pad fall within the scope of the prohibitions set forth in the ordinance. The ordinance does contain several exemptions from its general prohibitions against the operation of private aircraft and airports. Specifically, the ordinance does not apply to the landing of private “ultralight aircraft,” to aircraft landing or taking off from publicly owned airports, or to publicly owned and operated airports themselves. Id. at §§ 76-7, 76-8. No exemption is made for helicopters, nor was plaintiff “grandfathered in,” as he had allegedly been promised by Genese. Plaintiff commenced this action on April 9, 2008, two years after enactment of the challenged ordinance. The amended complaint, which was filed as of right on May 22, 2008, asserts four causes of action. The first two causes of action allege that defendants have violated the Equal Protection Clause of the United States Constitution, based on two theories: “selective prosecution” and “class of one.” The third cause of action alleges that defendants have violated the First Amendment by passing the ordinance in retaliation for plaintiffs exercise of his First Amendment rights. The fourth cause of action seeks a judgment pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, declaring-that the ordinance is unconstitutional. DISCUSSION I. Motions for Summary Judgment: General Principles Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted to the movant “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” “An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A fact is material if it might affect the outcome of the suit under the governing law.” Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir.2008) (citation and internal quotation marks omitted). In determining whether the moving party is entitled to summary judgment, the court must “construfe] the evidence in the light most favorable to the non-moving party and draw[ ] all reasonable inferences in [his] favor.” Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir.2005). See also Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996) (“The evidence of the party opposing summary judgment is ‘to be believed, and all justifiable inferences are to be drawn in [that party’s] favor’ ”) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). It bears emphasis, though, that this standard does not simply require the court to draw all inferences in the nonmovant’s favor, but all reasonable inferences. The issue is whether a reasonable jury could find for the nonmoving party. See, e.g., Reed v. City of St. Charles, Mo., 561 F.3d 788, 791 (8th Cir.2009) (“Although a district court must rule on a motion for summary judgment after viewing the facts in the light most favorable to the non-moving party, it is not required to accept unreasonable inferences or sheer speculation as fact”) (internal quotation marks omitted); Carney v. City and County of Denver, 534 F.3d 1269, 1276 (10th Cir.2008) (“Although our summary judgment standard requires us to view the facts in the light most favorable to the non-moving party, it does not require us to make unreasonable inferences in favor of the non-moving party”) (internal quotation marks and alterations omitted); Caban Hernandez v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st Cir. 2007) (on a motion for summary judgment, “we must draw all reasonable inferences in the light most favorable to the nonmovant. That does not mean, however, that we ought to draw unreasonable inferences or credit bald assertions, empty conclusions, rank conjecture, or vitriolic invective”) (citation omitted); Berk v. St. Vincent’s Hosp. and Med. Ctr., 380 F.Supp.2d 334, 342 (S.D.N.Y.2005) (although court must construe facts in light most favorable to nonmoving party, “That does not mean, however, that a party can successfully oppose summary judgment on the basis of an unreasonable view of the facts”) (quoting Edwards v. Akzo Nobel, 193 F.Supp.2d 680, 688 (W.D.N.Y.2001)). II. Plaintiffs Claims A. Equal Protection Challenges to Legislative Enactments in General Plaintiff alleges that the ordinance violates his rights under the Equal Protection Clause of the Fourteenth Amendment. Such challenges can be premised on several different theories. “There are two types of constitutional challenges to a statute [or other legislative act]: facial challenges, in which a statute is alleged to be unconstitutional on its face, i.e., in all circumstances, and ‘as applied’ challenges, in which a statute is alleged to be unconstitutional under the particular facts of the plaintiffs case.” MONY Life Ins. Co. v. Ericson, 533 F.Supp.2d 921, 928 n. 9 (D.Minn.2008) (citing Ada v. Guam Soc’y of Obstetricians & Gynecologists, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 564 (1992) (Mem.) (Scalia, J., dissenting from denial of petition for writ of certiorari)). A legislative enactment may be struck down as unconstitutional on its face if the plaintiff demonstrates that it is “arbitrary and/or unreasonable, and not rationally related to a legitimate government interest.” Tanov v. INS, 443 F.3d 195, 201 (2d Cir.2006). Rational-basis review is properly applied to legislation that does not implicate any suspect classifications or impinge upon the exercise of a fundamental right. See, e.g., Estate of Landers v. Leavitt, 545 F.3d 98, 112 (2d Cir.2008); Yuen Jin v. Mukasey, 538 F.3d 143, 158 (2008). An as-applied claim can also take several forms. One type of such a claim is the so-called “class of one” claim. A plaintiff proceeding on a class-of-one theory must show that he was intentionally singled out “for arbitrary treatment without a rational basis.” Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir.2006); see also Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (plaintiffs state an equal protection claim where they allege that they were intentionally treated differently from other similarly situated individuals without any rational basis); Flying J Inc. v. City of New Haven, 549 F.3d 538, 547 (7th Cir. 2008) (stating that “the classic example of irrational government action in a class of one equal protection case in this circuit is an ordinance saying: ‘No one whose last name begins with “F” may use a portable sign in front of a 24-hour food shop, but everyone else may,’” and that “[w]hat makes the ordinance in the example irrational is not simply the act of singling out, but rather that the singling out is done in such an arbitrary way”) (additional internal quotation marks omitted). Closely akin to class-of-one claims are “selective enforcement” claims. Whereas a class of-one claim typically focuses on the sheer irrationality of the manner in which the plaintiff was treated, a selective-enforcement plaintiff must show that, compared with others similarly situated, he was selectively treated, and that “such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.” Miner v. Clinton County, 541 F.3d 464, 474 (2d Cir.2008) (quoting Bizzarro v. Miranda, 394 F.3d 82, 86 (2d Cir.2005)); accord Crowley v. Courville, 76 F.3d 47, 52-53 (2d Cir.1996). In general, then, a plaintiff asserting a selective-enforcement claim must allege, and establish, that the challenged statute or ordinance subjected him to discrimination on the basis of some protected characteristic, such as his race, national origin, or sex. Such discrimination can be demonstrated in several ways: First, a law or policy is discriminatory on its face if it expressly classifies persons on the basis of [a protected category such as] race or gender. In addition, a law which is facially neutral violates equal protection if it is applied in a discriminatory fashion. Lastly, a facially neutral statute violates equal protection if it was motivated by animus and its application results in a discriminatory effect. Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir.1999) (citations omitted). Selective-enforcement claims are based on the second of those three scenarios, ie., discriminatory application of a facially neutral law. United States v. Deberry, 430 F.3d 1294, 1298 (10th Cir.2005). In the case at bar, plaintiff alleges in the complaint that the ordinance is unconstitutional both on its face and as applied. See First Amended Complaint (Dkt. # 3) ¶ 96. In his supplemental brief in response to the Court’s Rule 12(d) Order, however, plaintiff appears to take the position that he is proceeding only on a theory of selective prosecution; he states that his theory in this case is based upon Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) — which has been described as the Supreme “Court’s seminal selective prosecution decision,” Wayte v. United States, 470 U.S. 598, 630, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985) (Marshall, J., dissenting) — and he also recites the two-part test for selective-prosecution and selective-enforcement claims. See Dkt. # 26-8 at 3 — 4 (quoting Crowley, 76 F.3d at 52 — 53). In spite of that assertion, however, there are aspects of plaintiffs arguments that appear to be closer to a facial challenge to the ordinance. He has, for example, submitted two expert reports (Dkt. #26-10, # 26-11) relating to the relative safety and noise levels of helicopters and ultralight aircraft. That suggests that plaintiff is also alleging that the ordinance is facially invalid, on the ground that there is no rational basis for the distinction that it draws between ultralight and other aircraft. In addition, plaintiff has not expressly disavowed reliance on his class-of-one claim, which is separately pleaded in the complaint. Because it is not clear that plaintiff has limited himself to a selective-enforcement theory, and since there is some conceptual overlap between these various theories, both generally and in the factual context of this case, the Court will consider and address whether plaintiff has presented a viable equal protection claim under any theory. At any rate, “[t]he formal label under which an equal protection claim is reviewed is less important than careful identification of the interest at stake and the extent to which society recognizes the classification as an invidious one.” Ramos v. Town of Vernon, 353 F.3d 171, 174 n. 1 (2d Cir.2003) (quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 478, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (Marshall, J., concurring in part and dissenting in part)). See also Bowman v. United States, 512 F.Supp.2d 1056, 1065 n. 4 (N.D.Ohio 2007) (finding no practical difference, on facts before the court, between plaintiffs as-applied and facial equal protection claims); cf. Hensley v. United States Drug Enforcement Agency, No. 07-CV-398, 2007 WL 2177023, at *3 (S.D.Cal. July 25, 2007) (“without allegations to support an as-applied challenge, the court must dismiss any counts based on this legal theory as unsupported labels”). B. Facial Validity 1. General Principles As an exercise of the Town’s police power, see Barnes v. Glen Theatre, 501 U.S. 560, 569, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), the ordinance is entitled to a presumption of validity, and “will not be held unconstitutional if its wisdom is at least fairly debatable and it bears a rational relationship to a permissible state objective.” Greene v. Town of Blooming Grove, 879 F.2d 1061, 1063 (2d Cir.1989); see also Bibb v. Navajo Freight Lines, 359 U.S. 520, 529, 79 S.Ct. 962, 3 L.Ed.2d 1003 (1959) (exercise of police power is presumed to be constitutionally valid); Gene-see Scrap Tin and Baling, Co. v. City of Rochester, 558 F.Supp.2d 432, 434 (W.D.N.Y.2008) (same); Ecogen, LLC v. Town of Italy, 438 F.Supp.2d 149, 157 (W.D.N.Y.2006) (ordinance need not be “the most efficacious, wisest or fairest possible” to survive rational-basis review); Empire State Restaurant and Tavern Ass’n, Inc. v. New York State, 360 F.Supp.2d 454, 460 (N.D.N.Y.2005) (“there is a strong presumption of validity for a statute passed pursuant to state or local police power”). An ordinance regulating property use will therefore be upheld unless it is “clearly arbitrary and unreasonable, having no substantial relationship to the public health, safety, moral or general welfare.” Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 385, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Ecogen, 438 F.Supp.2d at 157. Such rational-basis review is applicable to both facial and as-applied challenges. See Cook v. Gates, 528 F.3d 42, 62 n. 12 (1st Cir.2008) (“The plaintiffs acknowledge that a conclusion that the Act survives rational basis review defeats their facial and as-applied equal protection challenges”); Smith v. City of Chicago, 457 F.3d 643, 652 (7th Cir.2006) (“This basic formulation [of the rational-basis test] applies whether the plaintiff challenges a statute on its face [or] as applied”). In applying these principles, defendants’ subjective motivation in enacting the ordinance is irrelevant to the question of whether the ordinance itself is constitutionally valid. See Zilich v. Longo, 34 F.3d 359, 363 (6th Cir.1994) (court “may not invalidate ... legislative action based on the allegedly improper motives of legislators”). As long as “the statute or ordinance does not single out particular individuals or groups for benefits or burdens and is not challenged as discriminating on invidious grounds such as race, religion, and sex,” the court “will not strike down an otherwise constitutional statute [or ordinance] on the basis of an alleged illicit legislative motive.” Fraternal Order of Police Hobart Lodge No. 121, Inc. v. City of Hobart (“F.O.P. Hobart ”), 864 F.2d 551, 554 (7th Cir.1988) (quoting United States v. O’Brien, 391 U.S. 367, 383, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)); see also South County Sand & Gravel Co. v. Town of South Kingstown, 160 F.3d 834, 839 (1st Cir.1998) (stating that courts “ordinarily do not look behind ... legislation” and that “[i]n the ordinary course, the background knowledge upon which enacted legislation is based is irrelevant”); Sag Harbor Port Assocs. v. Village of Sag Harbor, 21 F.Supp.2d 179, 185 (E.D.N.Y.1998) (“whenever there exist plausible reasons for enacting a statute — whether or not those are the legislature’s actual reasons for adopting the law — a court’s inquiry is at an end”) (citing United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980)). One pragmatic reason for that principle is that to permit such challenges “would put at hazard a vast amount of routine legislation — federal, state, and local,” all of which “would be subject to invalidation by a federal court” upon a showing that the legislators had enacted the legislation out of some personal motives. F.O.P. Hobart, 864 F.2d at 555. In order to avoid such a result, the Court is “entitled to presume the Ordinance to be valid and [is] not required to delve into the motivations of the Board members who proposed and drafted the Ordinance.” International Paper Co. v. Town of Jay, 928 F.2d 480, 485 (1st Cir.1991). Indeed, even if legislation is enacted in direct response to a particular individual’s actual or proposed activities, that alone will not render the legislation invalid, as long as it is “not pinpointed against a named individual or group[, and] is general in its wording and impact.” F.O.P. Hobart, 864 F.2d at 556. See also Flying J Inc. v. City of New Haven, 549 F.3d 538, 547 (7th Cir.2008) (“a classification is not irrational simply because it was adopted in response to a specific” activity or situation); Pro-Eco, Inc. v. Board of Comm’rs of Jay County, 57 F.3d 505, 515 (7th Cir.) (stating that “legislatures may enact generally applicable legislation as a prophylactic to the danger posed by one particular actor as long as the end of the legislation is legitimate and ... the means are rationally related to the end,” and finding that “[t]he Board’s action here, even if unabashedly directed at a threat only Pro-Eco posed, was legitimate”), cert. denied, 516 U.S. 1028, 116 S.Ct. 672, 133 L.Ed.2d 522 (1995); Northwestern University v. City of Evanston, No. 00 C 7309, 2002 WL 31027981, at *6 (N.D.Ill. Sept. 11, 2002) (“the City’s ... Ordinance, although motivated by concern over one particular actor, is generally applicable legislation which is rationally related to a legitimate government objective”). Consonant with these principles, the Court may consider whether the ordinance is rationally related to its stated purpose, but “that is ultimately not determinative, and in fact it is not necessary for defendants to enunciate any purpose” for the ordinance. Ecogen, 438 F.Supp.2d at 157 (citing Panama City Med. Diagnostic Ltd. v. Williams, 13 F.3d 1541, 1546 (11th Cir.1994)) (emphasis added). Instead, “the proper inquiry is concerned with the existence of a conceivable rational basis, not whether that basis was actually considered by the legislative body.” Id. (quoting Haves v. City of Miami, 52 F.3d 918, 922 (11th Cir.1995)); see also Lamers Dairy, Inc. v. United States Dep’t of Agriculture, 379 F.3d 466, 473 (7th Cir.2004) (“Governmental action only fails rational basis scrutiny if no sound reason for the action can be hypothesized”); WMX Technologies, Inc. v. Gasconade County, Missouri, 105 F.3d 1195, 1201 (8th Cir.1997) (in adjudicating a constitutional challenge to an ordinance, “we do not inquire into the methods and motives behind its passage. We ask only whether a conceivable rational relationship exists between the ordinance and legitimate governmental ends”). Such a standard is most deferential to legislative enactments. As the party challenging the ordinance, then, plaintiff has the burden to “negative every conceivable [rational and legitimate] basis which might support” the ordinance. Tuan Anh Nguyen v. I.N.S., 533 U.S. 53, 75, 121 S.Ct. 2053, 150 L.Ed.2d 115 (2001) (quoting Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993)). That burden is indeed a heavy one. Mostowy v. United States, 966 F.2d 668, 672 (Fed.Cir.1992); Sanitation and Recycling Industry, Inc. v. City of New York, 928 F.Supp. 407, 412 (S.D.N.Y.1996); see also United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (to show that legislative act is unconstitutional, “challenger must establish that no set of circumstances exists under which the Act would be valid”); see, e.g., Flying J, 549 F.3d at 547 (plaintiffs allegation that municipality “maliciously and spitefully” enacted an amended zoning ordinance to thwart plaintiffs proposed construction of a travel plaza did not establish that amended ordinance was unconstitutional, since “the ordinance would presumably apply to any developer trying to construct a large-scale service station,” and “[t]he district court was able to hypothesize several reasons for the amended ordinance”). I also note that a facial constitutional challenge to a legislative enactment generally presents questions of law, rather than of fact. As the term implies, a facial challenge to an ordinance must be decided with reference to the face of the ordinance, not the particular facts surrounding its passage. See St. Croix Waterway Assn. v. Meyer, 178 F.3d 515, 519-20 (8th Cir.1999) (“because the Association’s complaint asserted a facial constitutional challenge, the issues presented to the district court were questions of law and the specific facts were not relevant”); see also Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305, 1311-12 (4th Cir.1995) (facial challenge to city ordinance on First Amendment grounds involved questions of law that could be resolved on motion to dismiss), vacated and remanded on other grounds, 517 U.S. 1206, 116 S.Ct. 1821, 134 L.Ed.2d 927 (1996); Mann v. Calumet City, Ill., No. 08 CV 555, 2009 WL 395465, at *4 (N.D.Ill. Feb. 17, 2009) (“the [relevant] factual allegations [with respect to a facial challenge to an ordinance] are the provisions of the Ordinance” itself). Likewise, where a constitutional challenge to an ordinance that was enacted pursuant to state or local police power is premised in part upon allegations of animus, such allegations (which will typically relate more to claims concerning the enforcement rather than the enactment of the ordinance) should not even be considered by the court unless the other allegations of the complaint are sufficient to overcome the presumption of rationality that attaches to such governmental action. See Flying J, 549 F.3d at 547 (“It is only when courts can hypothesize no rational basis for the action that allegations of animus come into play”); Lauth v. McCollum, 424 F.3d 631, 634 (7th Cir.2005) (“Animus comes into play only when, no rational reason or motive being imaginable for the injurious action taken by the defendant against the plaintiff, the action would be inexplicable unless animus had motivated it”). 2. Application to this Case Applying these principles to the case at bar, I find that plaintiff has failed to make out a valid claim that the ordinance is unconstitutional on its face. The ordinance is, quite plainly, rationally related to the protection of the health, safety and welfare of Webster residents. Although in some respects it might arguably have been better drafted, I am unable to say that the ordinance is so arbitrary or irrational as to bear no rational relationship to any permissible governmental objective. See County Concrete Corp. v. Town of Roxbury, 442 F.3d 159, 169 (3d Cir.2006) (invalidating zoning legislation as irrational or arbitrary is proper “only if the governmental body could have had no legitimate reason for its decision”) (quoting Phillips v. Borough of Keyport, 107 F.3d 164, 186 (3d Cir.) (Alito, J., concurring and dissenting), cert. denied, 522 U.S. 932, 118 S.Ct. 336, 139 L.Ed.2d 261 (1997)). As stated, the ordinance is presumed valid, and plaintiff has fallen far short of “negativ[ing] every conceivable” rational basis for it. Tuan Anh Nguyen, 533 U.S. at 75, 121 S.Ct. 2053. The stated purpose of the ordinance is to “address the operation of private airports and heliports and the operation of private aircraft in the Town of Webster and to provide for the protection of the health, safety, and welfare of the residents of the Town.” Dkt. # 6 Ex. A at § 76-3. The ordinance’s prohibition on the operation of private aircraft and airports within Webster certainly bears a rational relationship to that legitimate interest. See Ramsey Winch Inc. v. Henry, 555 F.3d 1199, 1211 (10th Cir.2009) (plaintiffs’ constitutional challenge to statutory amendments failed, since court “c[ould]not say the Amendments ha[d] no reasonably conceivable rational basis”). “[T]he Supreme Court ... ha[s] repeatedly held [that] noise, ... safety, aesthetics, [and] valuation of adjoining land ... are rational and permissible bases for land use restrictions.” Restigouche, Inc. v. Town of Jupiter, 59 F.3d 1208, 1214 (11th Cir.1995) (internal quotation marks omitted). See also Vision Church v. Village of Long Grove, 468 F.3d 975, 1001 (7th Cir.2006) (preventing noise pollution is a legitimate municipal land planning goal), cert. denied, 552 U.S. 940, 128 S.Ct. 77, 169 L.Ed.2d 243 (2007); Grace United Methodist Church v. City Of Cheyenne, 451 F.3d 643, 659 (10th Cir.2006) (“There can be little doubt that the City’s zoning ordinance is rationally related to a legitimate government purpose: the promotion of public health, safety, and general welfare of the citizens of Cheyenne”); Koscielski v. City of Minneapolis, 435 F.3d 898, 902 (8th Cir.2006) (“It is undisputed [that] the purpose of the City’s zoning ordinance, to protect public safety, is legitimate”). It would seem to be self-evident that prohibiting aircraft from taking off or landing within the Town of Webster, a heavily populated suburb, is rationally related to the goals of reducing noise and protecting the safety of Webster residents. See Gustafson v. City of Lake Angelus, 76 F.3d 778, 791 (6th Cir.) (city’s prohibition on landing seaplanes on lake within city limits did not violate riparian owner’s equal protection rights, since all similarly situated persons were similarly regulated, and ordinance was rationally related to legitimate land use concerns over noise, danger, apprehension of danger, destruction of property values, and interferences with other lawful uses of lake), cert. denied, 519 U.S. 823, 117 S.Ct. 81, 136 L.Ed.2d 39 (1996); Caswell v. City of Bloomington, 430 F.Supp.2d 907, 914 (D.Minn.2006) (city’s zoning ordinance regulating land use surrounding a newly constructed runway at municipal airport passed rational-basis test, since it was rationally related to legitimate government interest of protecting public safety); Appeal of Green and White Copter, Inc., 25 Pa.Cmwlth. 445, 450, 360 A.2d 283 (1976) (stating that “heliports, particularly in residential areas, embody a land use, the total exclusion of which appears prima facie to be designed to protect the public interest,” and that “[t]he potential safety problems and disturbances to the tranquility of the area are obvious”). Plaintiff, however, contends that the ordinance is arbitrary and irrational because it prohibits the operation of helicopters and non-motorized aircraft, but permits “ultralight” aircraft to land in residential neighborhoods. Specifically, the ordinance provides that the prohibition against the taking off or landing of aircraft within the Town of Webster “shall not apply to the landing of ultralight aircrafts [sic] or the airports solely servicing such aircraft....” Dkt. #6-2 Ex. A at § 76-7(A). In support of his argument in this regard, plaintiff has submitted two expert reports, prepared by William K. White and Phillip E. Ide. White, who is the managing director and chief inspector of AeroEd Inspection Services, LLC, opines in his report with respect to “the mechanical safety of an ultra-light as opposed to a helicopter and the specifications of ultra-light aircraft.” Dkt. #26-10 at 1. Ide, a self-described “aviation consultant” with relevant experience working for the Federal Aviation Administration (“FAA”) and in the United States Army, renders his opinion about “safety and noise concerns related to helicopters as compared to ultra-light aircraft.” Dkt. #26-11 at 1. The main thrust of both reports is that ultralight aircraft are no safer (or quieter) than helicopters. Defendants contend that these reports do not meet the requirements of Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure because they do not list all cases in which the alleged experts have testified during the previous four years, and do not include statements concerning the experts’ compensation in this case. I find it unnecessary to reach that issue, however, for the reason that the opinions expressed in these two reports are largely immaterial- to the issues before me, precisely because they are opinions. As stated, the ordinance must be upheld “if its wisdom is at least fairly debatable and it bears a rational relationship to a permissible state objective.” Greene, 879 F.2d at 1063 (emphasis added); accord Tarantino v. City of Hornell, 615 F.Supp.2d 102, 117-18 (W.D.N.Y.2009). The opinions of plaintiffs experts may be well-reasoned (though I need not and do not conclude that they are), but they do not demonstrate so conclusively that ultralights are at least as, if not more dangerous than helicopters as to put the question, beyond fair debate. See Ramsey Winch Inc. v. Henry, 555 F.3d 1199, 1211 (10th Cir.2009) (stating, with respect to amendments to state statutes concerning storage of firearms locked in vehicles on owners’ property, that court “need not decide the long-running debate as to whether allowing individuals to carry firearms enhances or diminishes the overall safety of the community. The very fact that this question is so hotly debated, however, is evidence enough that a rational basis exists for the Amendments”) (citing Euclid, 272 U.S. at 388, 47 S.Ct. 114); Texas Mfd. Housing Ass’n, Inc. v. City of Nederland, 101 F.3d 1095, 1106 (5th Cir.1996) (on rational-basis review, challenged zoning decision may be overturned only upon a showing “that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker”) (quoting Vance v. Bradley, 440 U.S. 93, 110-11, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979)) (emphasis added), cert. denied, 521 U.S. 1112, 117 S.Ct. 2497, 138 L.Ed.2d 1003 (1997). It bears repeating at this point that, with respect to the facial validity of the ordinance, the ultimate question is not whether the ordinance is wise, or even logical, but simply whether it bears some rational relationship to a legitimate end. See Heller, 509 U.S. at 319, 113 S.Ct. 2637 (“rational-basis review in equal protection analysis ‘is not a license for courts to judge the wisdom, fairness, or logic of legislative choices’ ”) (quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993)). As the Second Circuit has explained, “ ‘[r]ational basis review ... turns on whether there are “plausible” reasons for [the legislative bodyj’s choices,’ ” not whether those choices are the best ones that could have been made. Weinstein v. Albright, 261 F.3d 127, 140 (2d Cir.2001) (quoting General Media Comm., Inc. v. Cohen, 131 F.3d 273, 286 (2d Cir.1997), cert. denied, 524 U.S. 951, 118 S.Ct. 2367, 141 L.Ed.2d 736 (1998)). The ordinance at issue easily passes muster under that deferential standard. No matter how persuasive the opinions of plaintiffs experts might be, they are, ultimately, just that: their opinions. Defendants might well have formed a different opinion. The determinative question is not whose opinion is “better,” or whether plaintiffs experts’ conclusions are sound, but whether there are some conceivable rational reasons for what defendants did here. See Estill v. Cool, No. 08-cv-606, 2008 WL 4560768, at *8 (S.D.Ohio Oct. 9, 2008) (stating that “[t]he law does not require Ohio’s General Assembly to have a rational basis to impose one requirement [for public office] while rejecting another.... What the law requires is simply rationality for what was imposed. The wisdom of many such [legislative] choices will always be open to debate by individuals of equal intellect, but the mere act of choosing is neither irrational nor unconstitutional”) (emphasis added). Regardless of how reasonably or well grounded White’s and Ide’s reasoning and analysis might be, then, they cannot show that the Town’s choices, as embodied by the ordinance, are wholly irrational. The purported expert reports are therefore, as stated, largely irrelevant to the issues before me. See Kimel v. Florida Bd. of Regents, 528 U.S. 62, 84, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) (stating, with respect to age-based classifications, that the fact “that age proves to be an inaccurate proxy in any individual case in irrelevant,” because, “where rationality is the test, a State ‘does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect’”) (quoting Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 316, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976)). Furthermore, any assessment of the relative safety of helicopters and ultralights depends to a great extent on how one defines “safety” in that context. There are many variables and parameters that could enter into such an equation: the frequency of crashes associated with each type of aircraft, the severity of a typical accident involving a given aircraft, and so on. White’s and Ide’s own reports demonstrate this, since they base their opinions (as indeed they must) on particular criteria that they deem relevant and important, such as the degree to which helicopters and ultralights are regulated by the FAA, and what they believe to be the typical practices of ultralight pilots (e.g., Ide opines that “[m]any ultralight owners experiment with possible unproven designs such as adding an extra passenger seat”). All that these reports prove, then, is that it is impossible to reduce the desirability of allowing helicopters, ultralights, or other aircraft to operate within a particular area to a precise mathematical formula. Such decisions necessarily depend on imprecise, subjective judgments and perceptions that defy quantification, and which are, in the end, incapable of being “proven” or “disproven.” It is precisely for that reason that such decisions are ill-suited to judicial review and are instead committed to the legislative sphere. See New York City Transit Auth. v. Beazer, 440 U.S. 568, 592, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979) (the “exclusionary line challenged by respondents ... represents a policy choice ... made by that branch of Government vested with the power to make such choices”); Powers v. Harris, 379 F.3d 1208, 1216-17 (10th Cir.2004) (stating that “rational-basis review does not give courts the option to speculate as to whether some other scheme could have better regulated the evils in question,” and that court may not “overturn a statute on the basis that no empirical evidence supports the assumptions underlying the legislative choice”), cert. denied, 544 U.S. 920, 125 S.Ct. 1638, 161 L.Ed.2d 476 (2005). As this Court has previously stated, [c]ourts will not strike down a law as irrational simply because it may not sueceed in bringing about the result it seeks to accomplish, because the problem could have been better addressed in some other way, or because the statute’s classifications lack razor-sharp precision. This is the standard of review because the judicial system has long recognized that the problems of government are practical ones and may justify, if they do not require, rough aceommodations-illogical, it may be, and unscientific. Ecogen, 438 F.Supp.2d at 149 (W.D.N.Y. 2006) (internal quotes and alterations omitted). See also Greater Chicago Combine and Center, Inc. v. City of Chicago, 431 F.3d 1065, 1072 (7th Cir.2005) (stating, with respect to challenge to municipal ordinance prohibiting keeping of pigeons in most residential areas, “It is true that other animals make noise, leave droppings, and can be otherwise unsavory. Nonetheless, without delving into the distinctions between pigeons and dogs, for instance, we can put this issue to rest by simply acknowledging that a city’s decision to address a problem gradually is rational”); Forseth v. Village of Sussex, 199 F.3d 363, 370-71 (7th Cir.2000) (“Absent a fundamental right or a suspect class, to demonstrate a viable equal protection claim in the land-use context, the plaintiff must demonstrate ‘governmental action wholly impossible to relate to legitimate governmental objectives’ ”) (quoting Esmail v. Macrane, 53 F.3d 176, 180 (7th Cir.1995)). Plaintiff also raises a few other arguments bearing upon the facial validity of the ordinance, but these require only brief mention. First, plaintiff states in his memorandum of law that the ordinance “carves out [an exception allowing] the use of a private ultralite [aircraft] ... to land in the backyard of Robert Bechtold,” who also lives in Webster. Dkt. # 14 at 24. While that may be plaintiffs interpretation of the ultralight exception, the ordinance itself says nothing about Bechtold or any other particular property or aircraft owner; it simply creates a general exception for ultralight aircraft. Furthermore, even assuming that the underlying purpose of the ultralight exception was to benefit Bechtold, however, that is irrelevant to whether the ordinance is facially valid. Zilich, 84 F.3d at 363; F.O.P. Hobart, 864 F.2d at 554. That the ordinance might have the practical effect of benefiting Bechtold or some other individual is not dispositive. The law is clear that a “classification does not fail rational-basis review because it ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ” Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 55 L.Ed. 369 (1911)); see also Rojas-Reyes v. I.N.S., 235 F.3d 115, 123 (2d Cir.2000) (legislative acts “need not result in the most just or logical result in every case to pass constitutional muster”). Plaintiffs contention that the ordinance is irrational because it permits ultralight aircraft to operate, but not other relatively lightweight or quiet aircraft such as hang gliders or balloons, is a red herring. Plaintiff is not seeking to be allowed to fly a balloon or a hang glider, but a helicopter. The salient distinction, then, for purposes of this case, is that between ultralight aircraft and helicopters, and it is rather obvious that there are significant differences between the two and the manner in which each operates. What all of plaintiffs arguments boil down to is a contention that the ordinance is invalid because, in enacting the ordinance, the Town drew a line, allowing some aircraft to operate within Webster, and others not to. Plaintiff may be unhappy with the side of the line on which he finds himself, but there is no basis in the law for requiring a legislative body to take an all-or-nothing approach to dealing with a perceived problem. See Williamson v. Lee Optical, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955) (“The legislature may select one phase of one field and apply a remedy there, neglecting the others”); Railway Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949) (“It is not a requirement of equal protection that all evils of the same genus be eradicated or none at all”); see, e.g., USA Baseball v. City of New York, 509 F.Supp.2d 285, 295 (S.D.N.Y.2007) (in suit challenging city’s ban on use of certain types of bats in high school baseball games, plaintiffs’ argument that there was no logical basis for distinguishing between non-wood composite bats and wood composites or wood laminates failed, since city could “act incrementally or draw the line imperfectly so long as there was ... a conceivable rational connection between the classification drawn and a legitimate purpose”). C. Selective-Enforcement and Class-of-One Claims As stated, the first and second causes of action in the amended complaint assert equal protection claims based respectively on theories of selective enforcement and “class of one.” The gist of both claims is that plaintiff has been treated differently from other similarly situated persons, for no legitimate reason. “While the Second Circuit has not resolved the question of whether there is truly a distinction between selective enforcement and class of one equal protection theories, courts in this circuit have repeatedly treated them as distinct theories with distinct elements of proof and have accordingly evaluated them as separate claims.” Sloup v. Loeffler, No. 05-CV-1766, 2008 WL 3978208, at *14 n. 18 (E.D.N.Y. Aug. 21, 2008) (quoting Bonenfant v. Kewer, No. 05cv01508, 2007 WL 2492030, at *8, 2007 U.S. Dist. LEXIS 64104, at *24 (D.Conn. Aug. 30, 2007)). See also African Trade & Info. Ctr. v. Abromaitis, 294 F.3d 355, 363-64 (2d Cir. 2002) (plaintiffs’ allegation that government official refused to contract with them because they had publicly criticized his conduct in office did not allege that the actions were irrational, as required for a class-of-one equal protection claim, but that they were impermissible under the First Amendment); Vassallo v. Lando, 591 F.Supp.2d 172, 184 n. 9 (E.D.N.Y.2008) (employing “the slightly different formulations set forth by the Second Circuit for each claim”); Lavoie-Francisco v. Town of Coventry, 581 F.Supp.2d 304, 312 (D.Conn. 2008) (selective-enforcement and class-of-one claims are “two related, yet different, equal protection arguments”) (quoting Cobb v. Pozzi, 363 F.3d 89, 109 (2d Cir. 2004)). Therefore, I will evaluate Casciani’s class-of-one and selective-enforcement claims separately, although I reach the same result as to both. See Balakrishnan v. Kusel, No. 08-cv-1440, 2009 WL 1291755, *6 (E.D.N.Y. May 8, 2009) (stating that “it is not entirely clear whether the selective enforcement cause of action as articulated [by the Second Circuit] still exists in light of the Supreme Court’s ‘class of one’ jurisprudence,” but adding that “in an abundance of caution, the Court has analyzed plaintiffs selective enforcement claim as a separate cause of action” from his class-of-one claim). 1. Selective-Enforcement Claim To state a selective-enforcement claim, plaintiff must allege that, compared with others similarly situated, he was selectively treated, and that “such 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.” Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir.1995); accord Jones v. J.C. Penney’s Dept. Stores, Inc., No. 03-CV-920, 2007 WL 1577758, *9 (W.D.N.Y. May 31, 2007). “A plaintiff generally must satisfy both elements to establish a claim of selective enforcement.” Washpon v. Parr, 561 F.Supp.2d 394, 409 (S.D.N.Y.2008) (quoting LaTrieste Rest. v. Village of Port Chester, 188 F.3d 65, 70 (2d Cir.1999)). In the case at bar, plaintiff asserts that he was subject to selective enforcement of (1) the ordinance, (2) Gen. Bus. L. § 249, and (3) various town code provisions. The evidence in the record supports none of these claims, however. There are two fundamental flaws with all three of these claims. First, most of the individuals with whom plaintiff seeks to compare himself were not similarly situated to him during the relevant time periods. Second, plaintiff cannot show that the ordinance, § 249, or the Town code provisions were actually enforced against him at all, much less that they were selectively enforced. “[Demonstrating that a plaintiff has been treated differently from similarly situated individuals is the sine qua non of a selective enforcement violation.” Kamholtz v. Yates County, No. 08-CV6210, 2008 WL 5114964, at *5 (W.D.N.Y. Dec. 3, 2008) (internal quotation marks omitted). The Second Circuit has held that at the initial pleading stage, a “general allegation” to that effect is sufficient. DeMuria v. Hawkes, 328 F.3d 704, 706 (2d Cir.2003). But see Assoko v. City of New York, No. 06-cv-11414, 2009 WL 1108745, at *4 (S.D.N.Y. Apr. 24, 2009) (noting that “the Second Circuit has not yet revisited” the “liberal DeMuria standard” in light of the Supreme Court’s stiffening of the federal pleading requirements in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Pursuant to this Court’s Rule 12(d) Order, however, we have moved beyond the pleading stage, and are now at the summary judgment stage. The standards with respect to the similarly-situated element are much more stringent on a summary judgment motion than on a Rule 12(b)(6) motion for failure to state a claim. It is not enough at this point for plaintiff simply to allege that he and others were similarly situated; “at the summary judgment stage, a plaintiff must present evidence comparing [himself] to individuals that are ‘similarly situated in all material respects.’” Vassallo, 591 F.Supp.2d at 184 (quoting Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir.2000)) (emphases added and additional internal quotation marks omitted); see, e.g., Tarantino, 615 F.Supp.2d at 113 (granting summary judgment for defendants on plaintiffs claim of selective enforcement where plaintiff “failed to show that he and the other landlords that he has identified were similarly situated in all material respects”). Although determining whether parties are similarly situated is typically “a fact-intensive inquiry,” Clubside, 468 F.3d at 159, a “court may grant summary judgment in a defendant’s favor on the basis of lack of similarity of situation ... where no reasonable jury could find that the persons to whom the plaintiff compares [himjself are similarly situated.” Id.; accord Maulding Development, LLC v. City of Springfield, 453 F.3d 967, 970 (7th Cir. 2006); see also Cordi-Allen v. Conlon, 494 F.3d 245, 251 (1st Cir.2007) (although “the ultimate determination as to whether parties are similarly situated is a fact-bound inquiry[,] that does not mean that every case ... is a jury case”); Neilson, 409 F.3d at 106 (holding that no rational person could have found that alleged comparators were similarly situated, notwithstanding jury’s finding to the contrary). In the case at bar, plaintiff has identified several individuals who he claims were similarly situated to him, but before examining them particular circumstances, it is necessary to establish which circumstances are material to that determination. As stated, plaintiff must show that he has been treated differently from others who are similarly situated to him in all material respects. Determining what is “material” in that regard, however, can only be determined with reference to the particular “treatment” at issue. For example, if a property owner alleges that a particular zoning ordinance has been enforced against him but not against other property owners, whether the other property owners put their properties to the same use as the plaintiff may be material if the ordinance at issue relates to permissible property uses, but not if it relates to minimum lot size. With respect to the ordinance itself, it seems self-evident that to be similarly situated to plaintiff, an individual would at the very least have to be subject to the ordinance; in other words, someone who owns or operates an aircraft within the Town of Webster that is covered by the ordinance. See Hill v. City of Scranton, 411 F.3d 118, 127 (3d Cir.2005) (all city employees who were subject to city ordinance’s residency requirement were similarly situated for purposes of First Amendment and equal protection analysis). If a particular individual is not covered by the ordinance, then the Town’s “failure” to enforce the ordinance against that person would be probative of nothing; there would be nothing to enforce against that person. Plaintiff has identified only two individuals who, he alleges, own and have operated aircraft in Webster since the passage of the ordinance: Bechtold and John Roessel. Bechtold allegedly owns three aircraft. See Pl. App. vol. II, Ex. A ¶ 18. As stated, however, Bechtold flies ultralight aircraft, which are expressly permitted by the ordinance. Plaintiff alleges that in fact, one of Bechtold’s aircraft is a two-seater ultralight, and hence does not fit within the ordinance’s definition of an ultralight as an aircraft that, inter alia, “[i]s used or intended to be used for manned operation in the air by a single occupant,” and “[wjeighs less than 254 pounds empty weight....” In support of that assertion, plaintiff has submitted the report of one of his experts, William White, who asserts that “[t]he minimum empty weight of a 2 manned ultra-light is 325 pounds.” Dkt. # 26-10 at 3. Plaintiff has also submitted the affidavit of James Kubrich, who states that he lives next door to Bechtold and that “[o]nee in a while” Kubrich has seen Bechtold flying with a passenger in his ultralight. Pl. App. vol. II, Ex. H ¶ 5. He also states that “[t]he last time [he] observed Mr. Bechtold operating his aircraft was last fall (2008),” although he does not state whether Bechtold had a passenger on that occasion, nor does he state any dates on which he has seen Bechtold flying with a passenger. Even assuming that the ordinance prohibits Bechtold’s two-seater from flying within Webster, however, the fact that it is not a helicopter, but an ultralight (albeit not an ultralight within the definition in the ordinance) is a material difference between Bechtold and Casciani. It is clear that the Town perceived helicopters to be more of a concern than ultralights, and there is no evidence that, if plaintiff had flown an ultralight — even a two-seater weighing more than 254 pounds — the Town would have enforced the ordinance against him. See Brandt v. Davis, 191 F.3d 887, 893 (8th Cir.1999) (plaintiffs allegation that city failed to enforce zoning laws against her neighbor did not show purposeful discrimination against plaintiff for purposes of equal protection claim). A useful analogy to this case is found in Gottlieb v. Village of Irvington, 69 F.Supp.2d 553, 559 (S.D.N.Y.1999). There, the plaintiff property owners asserted a claim of selective enforcement based on the defendant village’s issuance of a stop-work order relating to the plaintiffs construction of a driveway in a location that did not conform to their subdivision plat. Granting the village’s motion for summary judgment, the district court held that the plaintiffs had not shown that they were selectively treated compared with someone similarly situated, based on their allegation that their neighbors’ driveway, which had been installed years earlier, was also nonconforming, yet the village had never taken any enforcement action against the neighbors. The court stated that there was no evidence that the village had known of the neighbors’ non-conforming driveway location before the driveway was constructed and yet allowed construction to proceed. Id. at 559. “Moreover,” the court pointed out, even if plaintiffs could prove the Village did know at the time the [neighbors] were constructing their driveway that it was nonconforming, that alone would not make out an equal protection violation. Failure to proceed against others who are comparably situated is not by itself a basis for finding a denial of equal protection. Id. (citing Zahra, 48 F.3d at 684). The court added that since the plaintiffs did not allege that they had been discriminated against because of their race or religion, or to prevent them from exercising a constitutional right, plaintiffs were required to show “malicious or bad faith intent by the Village to injure the Plaintiffs.” Id. Finding such evidence lacking, the court stated that all that the plaintiffs had offered were their subjective feelings that the village “was trying to get them to abandon the building of their dream home,” but that they “had no evidence on which to base such feelings. Their suspicions were thus mere speculation.” Id. In addition to those defects in plaintiffs selective-enforcement claim, it suffers from yet another flaw. Even assuming that Bechtold could be considered similarly situated