The opinion of the court was delivered by: David G. Larimer United States 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 plaintiff's 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, plaintiff's cross-motion to amend his complaint is denied, and the complaint is dismissed.
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 plaintiff's 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 plaintiff's 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 Plaintiff's use of his helicopter on his personal land." Amended Complaint ¶ 47. The proposal included letters from some of plaintiff's neighbors, as well as the local fire, 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 plaintiff's operation of his helicopter. Amended Complaint ¶ 52.
Subsequent to the January meeting, Genese spoke again with plaintiff, and allegedly asked plaintiff to "withdraw [Plaintiff's] 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 plaintiff's "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 Pl. 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, Pl. 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,"*fn1 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 plaintiff's 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.
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 "constru[e] 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 (1986)).
It bears emphasis, though, that this standard does not simply require the court to draw all inferences in the non-movant'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 non-movant. 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)).
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 plaintiff's 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 (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 (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, i.e., 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 (1886)--which has been described as the Supreme "Court's seminal selective prosecution decision," Wayte v. United States, 470 U.S. 598, 630 (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).*fn2
In spite of that assertion, however, there are aspects of plaintiff's 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 (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 plaintiff's 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").
As an exercise of the Town's police power, see Barnes v. Glen Theatre, 501 U.S. 560, 569 (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 (1959) (exercise of police power is presumed to be constitutionally valid); Genesee 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 (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 (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 R.R. Retirement Bd. v. Fritz, 449 U.S. 166 (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 (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 (2001) (quoting Heller v. Doe, 509 U.S. 312, 320 (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 (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 (plaintiff's allegation that municipality "maliciously and spitefully" enacted an amended zoning ordinance to thwart plaintiff's 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 Ass'n 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 (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, ...