United States Court of Appeals For the First Circuit

No. 21-1907

JOSEPH MCCOY,

Plaintiff, Appellant,

v.

TOWN OF PITTSFIELD, NH,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph N. Laplante, U.S. District Judge]

Before

Barron, Chief Judge, Selya and Lynch, Circuit Judges.

Leif A. Becker, with whom Becker Legal, PLLC was on brief, for appellant. Robert J. Dietel, with whom Keelan B. Forey and Gallagher, Callahan & Gartrell, P.C. were on brief, for appellee.

February 7, 2023 LYNCH, Circuit Judge. In 2015, Joseph McCoy, a resident

of the Town of Pittsfield, New Hampshire (the "Town"), applied for

and received a permit to keep a trailer on his property in order

to store various belongings and tools, as required by the Town's

zoning ordinance (the "Ordinance"). In January 2016, McCoy's son

painted the words "TRUMP! USA" and "2016" on the side of the

trailer facing New Hampshire Route 107.

Later in 2016 and again in 2017, the Town's Board of

Selectmen (the "Board") granted McCoy permit extensions so that he

could keep the trailer on his property as he completed home repairs

and gradually unloaded the trailer. In June 2018 -- nearly a year

after McCoy's son had repainted the trailer to depict a scene of

hot air balloons -- the Board denied McCoy's request for a third

extension and required him to remove the trailer from his property.

McCoy sued the Town, alleging that the Ordinance, as

applied by the Board, was unconstitutionally vague and violated

his First Amendment and equal protection rights. He now appeals

the district court's entry of summary judgment for the Town.

McCoy v. Town of Pittsfield,

, 146 (D.N.H.

2021). We affirm.

I.

A.

Because the district court granted summary judgment for

the Town, we "describe the facts giving rise to this lawsuit in a

- 2 - light as favorable to [McCoy] as the record will reasonably allow."

Travers v. Flight Servs. & Sys., Inc.,

(1st Cir.

2013).

The Town adopted the Ordinance in 1988 and has since

amended it various times. Pittsfield, N.H., Zoning Ordinance (Mar.

9, 2021).1 As relevant here, Article 14 of the Ordinance regulates

"storage containers" in order to "promote the general welfare by

protecting the aesthetics of the [T]own."

art. 14, § 2. A

"storage container" is defined as "a truck trailer, box trailer,

school bus, manufactured housing unit, or similar mobile container

parked continuously for 31 days or more and used principally for

storage and not used for any person's residential occupancy or

transient lodging." Id. art. 2, § 3 (emphasis omitted). The

Ordinance restricts the number and placement of storage containers

in various zoning districts, requires permits for storage

containers, and provides that storage containers cannot remain "on

any one lot during any 15-month period . . . [for] more than 12

months." Id. art. 14, § 3(e) (emphasis omitted).

In early 2014, McCoy moved to the Town. To store his

belongings and various tools, he purchased a 52-foot trailer and

had it delivered to his property.

1 The parties have included the March 9, 2021 version of the Ordinance in the record. Neither party contends that this version of the Ordinance differs materially from the versions in effect when McCoy applied for a permit and sought extensions.

- 3 - In August 2015, the Town's building inspector, Jesse

Pacheco, informed McCoy that McCoy needed a storage container

permit to keep the trailer on his property. McCoy applied for and

received a permit, which took effect on September 1, 2015. The

permit stated that storage containers "are not allowed on a

permanent basis . . . within the Town of Pittsfield" and are

permitted for only a "period of one year," and thus that McCoy's

trailer "must be removed one year from [September 1, 2015]."

In January 2016, McCoy allowed his son to paint the side

of the trailer with the words "TRUMP! USA" and "2016." The words

"TRUMP! USA" were painted in large white letters and were visible

from New Hampshire Route 107. McCoy posted an image of the painted

trailer on Facebook. In August 2016, the Concord Monitor published

an article about the trailer, including a photograph of the painted

words.

After McCoy's storage container permit expired on

September 1, 2016, Pacheco mailed McCoy a notice that the trailer

must be removed pursuant to the Ordinance. McCoy then sent Pacheco

a letter requesting a six-month extension because McCoy had

"construction going on" including to repair a garage leak that

would take "several months to fix." McCoy explained that he was

"disabled, with just one working leg," and that he needed an

extension "in order to keep [his] tools and materials inside th[e]

trailer while [he] deal[t] with this emergency construction

- 4 - situation." He promised to "empt[y] and remove[]" the trailer "by

the end of April 2017."

On November 15, 2016, the Board unanimously approved

McCoy's request. The motion to approve was made by Selectman Carl

Anderson. At the time, Anderson, a self-proclaimed "life-long

Republican" and "public supporter of President Trump," was aware

of the painted words on the trailer, and Anderson later attested

that this knowledge "did not factor into [his] deliberations."

The Board had received several complaints about unpermitted

storage containers in 2016, including one complaint concerning

McCoy's trailer, and Anderson later wrote in a letter to McCoy

that no complaint mentioned the words painted on the trailer.

In a meeting on May 23, 2017, the Board discussed McCoy's

trailer. According to meeting minutes, the Board conferred on

whether other trailers were in violation of the Ordinance, with

Pacheco noting that it was unclear whether other trailers were

"grandfathered or not." The minutes do not include any discussion

of the words painted on McCoy's trailer. The Board tabled the

matter.

On June 13, 2017, the Board met with McCoy to discuss

the trailer. McCoy requested a second extension. According to

the meeting minutes, McCoy explained that his "deck[] and porch

[were] rotted" and "it [was] taking [him] more time then [sic]

expected to do all the repairs needed." McCoy further stated that

- 5 - he "want[ed] to get rid of" the trailer "but just need[ed] more

time to do the work needed on [his] home." There was no discussion

at the meeting of the words painted on the trailer. The Board

again unanimously approved McCoy's request, granting McCoy a new

storage container permit effective for one year starting June 13,

2017.

In July 2017, McCoy allowed his son to repaint the

trailer with an image of the Pittsfield hot air balloon rally.

The trailer depicted an American flag and hot air balloons where

the words "TRUMP! USA" and "2016" previously had been.

On May 22, 2018, the Board wrote to McCoy to remind him

that the latest permit would expire in June 2018 and that the

trailer must be removed at that time. In response, McCoy mailed

a letter to the Board requesting a third extension. He explained

that emptying the trailer was "not an easy task" because he was

disabled and had brought a "huge ammount [sic] of belongings" when

he moved to the Town. He did not mention the words that were

previously painted on the trailer.

On June 12, 2018, the Board unanimously denied McCoy's

request for a third extension. The Board discussed McCoy's prior

representations to the Board that he would remove the trailer, and

one selectman stated, "we need to keep [McCoy] at his word." The

meeting minutes do not report any discussion of the previously

painted words. During the June 12 meeting, the Board considered

- 6 - complaints regarding three other unpermitted storage containers

and agreed to send a notice of violation to the owner of those

storage containers. Since then, the Town has taken enforcement

action against several other unpermitted storage containers.

A letter sent to McCoy on June 13, 2018, explained that

"[w]hile [the Board] note[d] the personal circumstances that ha[d]

caused delay, the Board ha[d] to balance the terms of the zoning

ordinance with [McCoy's] request." Pacheco further informed McCoy

that the decision to deny the third extension was "due to

complaints."

The Board gave McCoy 30 days to remove the trailer. In

July 2018, McCoy sold the trailer and removed it from his property.

The Town later confirmed that McCoy had removed the trailer, but

did not impose any other penalties against McCoy.

B.

On March 20, 2020, McCoy sued the Town in the U.S.

District Court for the District of New Hampshire, invoking

. In Count I of his complaint, McCoy alleged that

the Ordinance, "as applied by the Town," was (1) an

"unconstitutionally overbroad restriction on expressive activity,"

(2) an "unconstitutionally vague restriction on expressive

activity," and (3) a "content-based and viewpoint-based

restriction on speech." In Count II, McCoy claimed that the

Ordinance, "as applied by the Town," violated the Equal Protection

- 7 - Clause of the Fourteenth Amendment because the Town selectively

enforced the Ordinance against owners of storage containers that

display political speech.

The Town moved for judgment on the pleadings on all

counts. The district court granted the motion in part and denied

it in part. McCoy v. Town of Pittsfield, No. 20-cv-362,

, at *8 (D.N.H. Dec. 10, 2020). With respect to Count I,

the district court dismissed McCoy's First Amendment overbreadth

claim2 but allowed his other claims to proceed, stating that

McCoy's "complaint contains enough facts that, when construed in

his favor, support the inference that the Town . . . applied the

[O]rdinance against him in a way that discriminates against either

the content or viewpoint of his speech, and that the Town's

application of the [O]rdinance was unconstitutionally vague." Id.

at *1. The district court also allowed Count II to proceed,

holding that McCoy pleaded "sufficient facts to satisfy . . . his

'class of one' equal protection claim." Id.

After discovery, the Town moved for summary judgment on

"both counts." The Town recounted that the district court had

denied the Town's motion for judgment on the pleadings with respect

to the claims of "unconstitutional content or viewpoint

2 McCoy does not pursue his overbreadth claim on appeal. Nor does he pursue his state-law claims for intentional and negligent infliction of emotional distress, which the district court also dismissed. See McCoy,

, at *8.

- 8 - discrimination," vagueness, and equal protection violations. But

the Town's motion contained legal argument related only to the

vagueness and equal protection claims, not the claim of content or

viewpoint discrimination.3 McCoy's objection to the summary

judgment motion likewise discussed the vagueness and equal

protection claims but did not address the claim of content or

viewpoint discrimination. McCoy also requested "summary judgment

on Counts I and II in [his] favor."

The district court held a summary judgment motion

hearing on September 17, 2021. In addition to hearing argument on

the vagueness and equal protection claims, the district court

questioned the parties on the extent to which the claim of content

or viewpoint discrimination had been preserved. The district judge

noted that "[n]either of [the parties] really engaged that [claim]

in the summary judgment papers" and asked whether Count I now

encompassed only the vagueness claim, "not . . . [the] content-

based discrimination [claim]." McCoy's attorney responded,

"[t]hat's correct." Both McCoy's attorney and the Town's attorney

stated their erroneous belief that the vagueness claim was the

sole portion of Count I that had survived judgment on the

pleadings. The district judge then reminded the parties that he

3 The Town also argued that McCoy failed to exhaust his administrative remedies by not appealing the Board's decision to remove his trailer to the Town's zoning board of adjustment.

- 9 - had not "foreclose[d] any pursuit of a [content-based or]

viewpoint-based claim" and stated the following: "I don't want

anyone here saying you're not arguing viewpoint because I

foreclosed it[,] because I did not foreclose it. . . . [T]his is

the whole case we're talking about as far as I'm concerned."

Neither attorney disagreed with this statement, and they proceeded

to discuss the extent to which the Town "restrict[ed] [McCoy's]

expressive activity." Throughout the motion hearing, the

attorneys argued in depth about whether the Board applied the

Ordinance discriminatorily based on McCoy's political speech.

On October 6, 2021, the district court granted the Town's

motion for summary judgment. McCoy, 565 F. Supp. 3d at 129. The

court first rejected McCoy's claim of content or viewpoint

discrimination, noting that McCoy failed to provide sufficient

evidence that the Town enforced the Ordinance against him due to

the political content or pro-Trump viewpoint displayed on the

trailer. See id. at 137-39. Although McCoy argued that he "did

not raise content or viewpoint discrimination in his summary

judgment briefing because the Town's motion did not explicitly

address this claim," the court found that "McCoy was on notice

that the Town was seeking summary judgment on all remaining claims"

and that McCoy "had ample opportunity to present [evidence

supporting this claim] and failed to do so." Id. at 137 n.20.

Next, the district court rejected McCoy's as-applied vagueness

- 10 - claim, holding that McCoy had notice that his storage container

permit would expire and that he would not receive extensions in

perpetuity. See id. at 139-42. Finally, the court rejected

McCoy's equal protection claim, finding that McCoy had failed to

offer trialworthy evidence that the Town had intentionally treated

him differently from similarly situated individuals. See id. at

142-46.4

II.

We review the district court's entry of summary judgment

de novo. Cruz v. Mattis,

(1st Cir. 2017). Summary

judgment is appropriate where the record, viewed in the light most

favorable to the nonmoving party, discloses "no genuine dispute as

to any material fact" and demonstrates that "the movant is entitled

to judgment as a matter of law." Staples v. Gerry,

(1st Cir. 2019) (quoting Fed. R. Civ. P. 56(a)).

McCoy raises three arguments on appeal. First, noting

that neither party discussed the claim of content or viewpoint

discrimination in the summary judgment briefing, McCoy contends

that the district court erred in granting summary judgment on that

claim without providing adequate notice that it would do so. He

also challenges the district court's adverse judgment on that claim

4 Because it rejected McCoy's claims on the merits, the district court declined to adjudicate the Town's administrative exhaustion argument. McCoy, 565 F. Supp. 3d at 146. The Town does not pursue this argument on appeal.

- 11 - on the merits. Second, McCoy argues that his equal protection

claim should have survived summary judgment. Finally, McCoy

maintains that the district court erred in granting summary

judgment on his as-applied vagueness claim. We address each

argument in turn.

A.

McCoy first argues that the district court failed to

provide adequate notice that it would reach McCoy's claim of

content or viewpoint discrimination at summary judgment. We

disagree, finding that the district court provided the requisite

notice. We also affirm the district court's entry of summary

judgment on this claim.

1.

Under Federal Rule of Civil Procedure 56(f), a district

court may grant a motion for summary judgment "on grounds not

raised by a party," but may do so only "[a]fter giving notice and

a reasonable time to respond." Fed. R. Civ. P. 56(f)(2). This

"power should be exercised sparingly and 'with great

circumspection.'" Chung v. StudentCity.com, Inc.,

(1st Cir. 2017) (quoting Stella v. Town of Tewksbury,

(1st Cir. 1993)). Our review remains de novo.

A district court must meet two criteria before entering

summary judgment sua sponte: (1) "discovery must be 'sufficiently

advanced' to afford the parties 'a reasonable opportunity to glean

- 12 - the material facts'"; and (2) "the 'targeted party' must have been

given 'notice and a chance to present its evidence on the essential

elements of the claim or defense.'"

(quoting Berkovitz v.

Home Box Off., Inc.,

(1st Cir. 1996)).

Here, the Town moved for summary judgment at the close

of discovery, and McCoy "does not claim that he did not have a

reasonable opportunity for discovery." Block Island Fishing,

Inc. v. Rogers,

(1st Cir. 2016). Rather, McCoy

depends on the second criterion, arguing that the district court

failed to provide adequate notice and opportunity to respond.

"Notice, in this context, has two aspects: the summary judgment

target is entitled to know both the grounds that the district court

will consider and the point at which her obligation to bring forth

evidence supporting the elements of her claim accrues."

(quoting Rogan v. Menino,

(1st Cir. 1999)).

The district court provided adequate notice that it

would reach the claim of content or viewpoint discrimination on

summary judgment.5 During the September 17, 2021 hearing, the

district judge carefully reminded the parties that this claim had

survived judgment on the pleadings, noting that any belief to the

contrary was "not a correct reading of the order." Further, the

5 We bypass the question of whether McCoy's attorney abandoned this claim by representing to the district court that Count I was proceeding solely on the basis of the as-applied vagueness claim.

- 13 - district judge stated: "I don't want anyone here saying you're not

arguing viewpoint because I foreclosed it[,] because I did not

foreclose it. . . . [T]his is the whole case we're talking about

as far as I'm concerned." McCoy's attorney expressed no misgivings

about this statement during the hearing, and he neither sought a

continuance nor asked for an opportunity to file supplemental

affidavits and/or briefs, instead merely electing to continue

discussing the extent to which the Town "restrict[ed] [McCoy's]

expressive activity." Nor did McCoy request to conduct additional

briefing on the claim of content or viewpoint discrimination during

the nineteen-day period between the hearing and the district

court's issuance of the summary judgment order on October 6, 2021.

While a district court's power to enter summary judgment sua sponte

"should be exercised sparingly," Chung,

, the court

here provided ample notice that all portions of Count I and

Count II would be considered on summary judgment.

2.

Having found that the district court appropriately

reached the claim of content or viewpoint discrimination, we now

analyze that claim on the merits. We affirm the district court's

entry of summary judgment.

The First Amendment, which applies to the states through

the Fourteenth Amendment, prohibits the enactment of any

"law . . . abridging the freedom of speech." U.S. Const.

- 14 - amend. I. McCoy argues that the Ordinance, as applied to his

trailer, was a content-based and viewpoint-based restriction on

his speech.

A restriction that targets speech is content-based if it

"applies to particular speech because of the topic discussed or

the idea or message expressed," City of Austin v. Reagan Nat'l

Advert. of Austin, LLC,

(2022) (quoting

Reed v. Town of Gilbert,

(2015)), and viewpoint-

based if it "targets not subject matter, but particular views taken

by speakers on a subject," Rosenberger v. Rector & Visitors of the

Univ. of Va.,

(1995). Such content-based and

viewpoint-based restrictions are subject to strict scrutiny, see

McCullen v. Coakley,

, 478 (2014), "which requires the

government to demonstrate that the restriction advances a

'compelling interest' and is 'narrowly tailored to achieve that

interest,'" Signs for Jesus v. Town of Pembroke,

(1st Cir. 2020) (quoting Reed,

). In contrast,

content-neutral restrictions, which "serve[] purposes unrelated to

the content of expression," are subject to intermediate scrutiny,

which requires (in the context of time, place, and manner

restrictions) that the restrictions be "narrowly tailored to serve

a significant governmental interest" and "leave open ample

alternative channels for communication of the information."

- 15 - (alteration in original) (quoting Ward v. Rock Against Racism,

(1989)).

McCoy claims that "[t]he Ordinance, as applied by the

Town, is a content-based and viewpoint-based restriction on

speech." (Emphasis added). We disagree. "To show that a facially

content-neutral [restriction] is subject to strict scrutiny, the

plaintiff must show not only that the restriction distinguishes

between speakers, but also that it 'reflects a content

preference.'" Signs for Jesus,

(quoting Reed,

). A facially content-neutral restriction may be

treated as content-based if it cannot be "justified without

reference to the content of the regulated speech" or was "adopted

by the government 'because of the disagreement with the message

[the speech] conveys.'" Reed,

(alteration in

original) (quoting Ward,

); see also City of Austin,

. McCoy produces no evidence -- and we discern

none -- that the application of the Ordinance to his trailer could

not be justified without reference to the painted words, or that

the Ordinance was adopted as a "pretext" to regulate political or

Republican views. Signs for Jesus,

. Accordingly,

the Ordinance was not a content-based restriction as applied to

McCoy's trailer. And McCoy has not argued (either to the district

court or on appeal) that the Ordinance, if it is a content-neutral

- 16 - speech restriction as applied to him, is subject to, let alone

fails, intermediate scrutiny.

We recognize that McCoy's as-applied challenge might be

"of a different sort": that the Ordinance "itself is neutral and

constitutional in all fact situations, but that it has been

enforced selectively in a [content or] viewpoint discriminatory

way." McGuire v. Reilly (McGuire II),

(1st Cir.

2004); see Hoye v. City of Oakland,

(9th Cir.

2011) (noting that such a claim is "essentially a selective

enforcement claim" that substitutes "speech content" for "one of

the more familiar protected classes"); see also McCullen, 573 U.S.

at 484; Cutting v. City of Portland,

(1st Cir.

2015). To mount this type of challenge, McCoy must show a "pattern

of unlawful favoritism." McGuire II,

(quoting

Thomas v. Chi. Park Dist.,

(2002)); see also

Hoye,

("[A] plaintiff must show that a

municipality's content-discriminatory enforcement of an ordinance

is the result of an intentional policy or practice.").

McCoy's claim fails under this framework too. McCoy's

initial storage container permit issued before McCoy's son painted

the trailer, and the Board granted two extensions while the "TRUMP!

USA" message remained. Indeed, when the Board eventually denied

a third extension, this message had been painted over with a

- 17 - nonpolitical depiction of the Pittsfield balloon rally.6 As the

district court noted, McCoy offers no evidence that the Board "held

animus but did not act on it during the time the trailer expressed

support for Trump, waited until the trailer no longer showed

support for Trump, and only then decided to punish McCoy for his

prior support." McCoy, 565 F. Supp. 3d at 138. Further, according

to various meeting minutes, the Board never mentioned McCoy's

expressive content in any of its discussions about the trailer.

And although the Board apparently received complaints about

McCoy's trailer (along with other trailers), McCoy produces no

evidence that those complaints concerned the political view he

expressed. Indeed, similar complaints led the Board to enforce

the Ordinance against other trailers that did not include

expressive content. On this record, no rational jury could find

that the Town enforced the Ordinance in a content or viewpoint

discriminatory manner.

6 During his deposition, McCoy testified that even after his son painted over the words "TRUMP! USA" and "2016," the back doors of the trailer continued to have graffiti displaying the words "TRUMP MAKE AMERICA GREAT AGAIN!" But as the district court noted, McCoy's complaint made no mention of the trailer's back doors, instead focusing on the side of the trailer that said "TRUMP! USA" and "2016" and that was featured in the Concord Monitor article. McCoy, 565 F. Supp. 3d at 138 n.21. In any event, McCoy provides no evidence that the Board discriminated against him based on the graffiti on the back doors.

- 18 - B.

McCoy next argues that the Town's application of the

Ordinance against him violated his equal protection rights under

the Fourteenth Amendment. McCoy pursues two types of equal

protection claims: a "class-of-one" claim7 and a claim of selective

enforcement based on his speech. We address each claim in turn.

1.

The Supreme Court has recognized that a plaintiff can

bring an equal protection claim as a "class of one" even where the

plaintiff does "not allege membership in a class or group."

Village of Willowbrook v. Olech,

(2000) (per

curiam). Under the class-of-one framework, the plaintiff must

show that "she has been intentionally treated differently from

others similarly situated and that there is no rational basis for

the difference in treatment."

Class-of-one plaintiffs bear the burden of identifying

comparators who are "similarly situated in all respects relevant

to the challenged government action." Gianfrancesco v. Town of

Wrentham,

(1st Cir. 2013). Plaintiffs must show

an "extremely high degree of similarity" between themselves and

those comparators. Cordi-Allen v. Conlon,

(1st

7 Although McCoy did not articulate a class-of-one equal protection claim in his complaint, the district court evaluated his claim through that framework and McCoy pursues it on appeal.

- 19 - Cir. 2007) (quoting Clubside, Inc. v. Valentin,

(2d Cir. 2006)). This requirement "must be enforced with

particular rigor in the land-use context because zoning decisions

'will often, perhaps almost always, treat one landowner

differently from another.'"

(quoting Olech,

(Breyer, J., concurring)). "It is inadequate merely to point to

nearby parcels in a vacuum and leave it to the municipality to

disprove conclusory allegations that the owners of those parcels

are similarly situated."

McCoy's class-of-one equal protection claim fails

because he has failed to identify similarly situated comparators.

McCoy has produced photographs of various trailers in Pittsfield

that he contends "were not permitted and did not contain expressive

content, and yet were allowed to remain." But McCoy fails to

provide evidence that any of those trailers actually fell within

the ambit of the Ordinance. For example, he offers no evidence

that any of the photographed trailers were "parked continuously

for 31 days or more," "used principally for storage," and "not

used for any person's residential occupancy or transient lodging,"

all of which are prerequisites to the Ordinance's application.

Pittsfield, N.H., Zoning Ordinance (Mar. 9, 2021), art. 2, § 3.

Further, he produces no evidence that any of these trailers are

not grandfathered. See id. art. 4, § 1(a) (providing that the

Ordinance "shall not apply to existing structures"). Indeed, in

- 20 - one Board meeting, Pacheco noted that it was unclear whether other

trailers in Pittsfield were "grandfathered or not."8 McCoy has

merely "point[ed] to nearby [trailers] in a vacuum" and made

conclusory allegations that they were similarly situated to his

trailer. Cordi-Allen,

. He thus has failed to

meet his burden under the "similarly situated" requirement, so his

class-of-one claim fails.

2.

In addition to McCoy's class-of-one equal protection

claim, which does not depend on his ability to prove that he was

targeted due to his speech, see Cobb v. Pozzi,

, 109-

10 (2d Cir. 2004), McCoy argues that the Town has "single[d] [him]

out" for enforcement due to his political speech. This allegation

amounts to a claim of selective enforcement under the Equal

Protection Clause.

To establish a claim of selective treatment, a

plaintiff must show that (1) the plaintiff, "compared with others

similarly situated, . . . was selectively treated"; and (2) such

selective treatment was "based on impermissible considerations

such as race, religion, intent to inhibit or punish the exercise

8 The Ordinance was adopted in 1988, and its provisions regulating storage containers were added in 1997 and later amended in 2016. McCoy makes no attempt to show that any of the photographed trailers were not already present prior to these changes in the law.

- 21 - of constitutional rights, or malicious or bad faith intent to

injure a person." Barrington Cove Ltd. v. R.I. Hous. & Mortg.

Fin. Corp.,

(1st Cir. 2001) (emphases omitted)

(quoting Rubinovitz v. Rogato,

(1st Cir. 1995)).

McCoy argues that the Town selectively enforced the Ordinance

against him based on an "intent to inhibit or punish the exercise"

of his First Amendment rights.9

McCoy's selective enforcement equal protection claim

fails for reasons we have already explained above. First, as we

found in rejecting McCoy's class-of-one equal protection claim,

McCoy has not provided sufficient evidence of "similarly situated"

comparators. See, e.g., Signs for Jesus,

(rejecting, due to failure to identify any similarly situated

comparator, an equal protection claim based on purported

classifications affecting fundamental rights). Second, as we

found in rejecting McCoy's as-applied First Amendment claim, McCoy

has failed to produce evidence of any intent by the Town to

discriminate against him based on his speech. See, e.g., Wayte v.

United States,

(1985) (rejecting selective

enforcement claim due to failure to prove that the government

intended to prosecute discriminatorily based on speech); Cobb, 363

9 McCoy does not allege that the Town acted with a "malicious or bad faith intent to injure" him. Barrington Cove,

(quoting Rubinovitz,

).

- 22 - F.3d at 110 (rejecting selective enforcement claim for same reason

that First Amendment retaliation claim was rejected). Indeed, as

this court has previously noted, there is substantial overlap

between a selective enforcement claim under the Equal Protection

Clause and a claim of selective content or viewpoint discrimination

under the First Amendment. See McGuire II,

; see

also Hoye,

; McGuire v. Reilly (McGuire I),

(1st Cir. 2001) ("[T]he equal protection interests

involved in the differential treatment of speech are inextricably

intertwined with First Amendment concerns . . . ."). We need not

discuss here the extent to which the two claims may differ.

C.

Finally, McCoy argues that the Ordinance, as applied by

the Town, is unconstitutionally vague.10 We disagree.

An enactment is impermissibly vague, thus violating due

process, if it "fails to provide a person of ordinary intelligence

fair notice of what is prohibited, or is so standardless that it

authorizes or encourages seriously discriminatory enforcement."

Frese v. Formella,

(1st Cir. 2022) (quoting United

States v. Williams,

(2008)); see Ridley v. Mass.

Bay Transp. Auth.,

(1st Cir. 2004). In an as-

applied vagueness challenge, we consider only the "particular

10 McCoy does not argue that the Ordinance is vague on its face.

- 23 - facts at issue" because a "plaintiff who engages in some conduct

that is clearly proscribed cannot complain of the vagueness of the

law as applied to the conduct of others." Holder v. Humanitarian

L. Project,

, 18-19 (2010) (quoting Village of Hoffman

Estates v. Flipside, Hoffman Ests., Inc.,

(1982)). Further, "enactments with civil rather than criminal

penalties" are held to a less exacting vagueness standard "because

the consequences of imprecision are qualitatively less severe."

Village of Hoffman Estates,

.

McCoy had ample notice that the Ordinance would apply to

him. Indeed, he himself applied for a storage container permit

under the Ordinance and represented to the Board, on multiple

occasions, that he was using his trailer for storage.11 See United

States v. Zhen Zhou Wu,

(1st Cir. 2013) (noting

11 McCoy argues that after his son painted the trailer with the words "TRUMP! USA" and "2016," the trailer was being used "principally as a sign" rather than for storage, and thus that the Ordinance should not have applied to him at all. At oral argument, McCoy's counsel explained that this argument was made "in service" of McCoy's federal vagueness claim, not as a separate state-law claim to be resolved under this court's supplemental jurisdiction. But as the district court noted, it is "unclear how [this argument] would affect McCoy's vagueness claim." McCoy, 565 F. Supp. 3d at 139-40. Regardless of whether McCoy's trailer could have qualified as a sign under Article 9 of the Ordinance, see Pittsfield, N.H., Zoning Ordinance (Mar. 9, 2021), art. 9 (listing permitting conditions for "outdoor signs"), McCoy was on notice that the Town would treat the trailer as a storage container because he continuously applied for permits and extensions under Article 14 of the Ordinance, telling the Board that his trailer was being used for storage and never mentioning its expressive content.

- 24 - that in an as-applied vagueness challenge, the court need only

determine whether plaintiffs "in fact had fair notice" that their

conduct was proscribed (quoting United States v. Hsu,

(4th Cir. 2004))). He nowhere establishes in the record

that his trailer was used principally for political speech (or

that he represented as much to the Town), as would be required for

him to argue that the Ordinance is vague as applied to a trailer

used primarily for political speech.

Further, the Ordinance is not "so standardless that it

authorizes or encourages seriously discriminatory enforcement."

Williams,

. The Ordinance allows Town officials to

require permits only for those storage containers that are "parked

continuously for 31 days or more and used principally for storage

and not used for any person's residential occupancy or transient

lodging." Pittsfield, N.H., Zoning Ordinance (Mar. 9, 2021), art.

2, § 3. The Town Administrator explained that the Board knew

McCoy's trailer was a non-grandfathered storage container "based

on visual inspection [by Pacheco], permit applications and

correspondence received from Mr. McCoy, and public testimony from

Mr. McCoy." The Town conveyed clear and acceptable reasons for

requiring McCoy to have a permit, and has enforced the Ordinance

against various other trailers for similar reasons.

McCoy contends that the Board's decision to grant two

permit extensions, but then deny the third, amounted to "arbitrary

- 25 - enforcement" of the Ordinance. He argues that the Board lacked

authority to grant extensions in the first place, rendering the

Ordinance vague because the Board could "create[] rationales and

bases for whether to grant or deny . . . extension request[s] out

of whole cloth." But even if the vagueness doctrine applies in

this context -- in which McCoy challenges not the Ordinance's

application to him, but rather the Town's method of

enforcement -- McCoy received ample notice of how the Town would

treat his extension requests. McCoy himself requested each

extension,12 and he benefitted from the grant of two extensions.

The new permit granted on June 13, 2017, clearly stated that the

trailer "must be removed one year" later, and McCoy repeatedly

told the Board that he intended to remove the trailer following

each extension. Even when asking for a third extension, McCoy

stated that he planned to continue emptying the trailer so he could

eventually remove it. Regardless of whether the Town had authority

to grant extensions in the first place, McCoy was on notice that

he would not receive extensions in perpetuity.

III.

For the foregoing reasons, the judgment of the district

court is affirmed.

12 Indeed, the fact that McCoy asked for serial extensions demonstrates that he believed the Town had the authority to issue them at the time, which undercuts his present argument to the contrary.

- 26 -