NRP Holdings LLC v. City of Buffalo

NRP Holdings LLC, NRP Properties LLC, PlaintiffsAppellantsv.City of Buffalo, Byron W. Brown, Demone A. Smith, Buffalo Urban Renewal Agency, Steven M. Casey, DefendantsAppelleesRichard A. Stenhouse, Buffalo Jeremiah Partnership for Community Development, Inc., John Doe 110, John Doe Companies, 15, Defendants.^*

PlaintiffsAppellants NRP Holdings LLC and NRP Properties LLC (together, “NRP”) made preliminary arrangements from 2007 through 2009 with the City of Buffalo to build affordable housing on Cityowned land and to finance the project in part with public funds. The project never came to fruition, allegedly because NRP refused to hire a political ally of the mayor. NRP sued the City, the Buffalo Urban Renewal Agency, the mayor, and other City officials, seeking redress. Between 2012 and 2017, the United States District Court for the Western District of New York (Skretny, J.) resolved all of NRP’s claims in favor of defendants, some by dismissal under Rules 12(b)(6) and 12(c) and others by summary judgment. NRP appeals. We affirm. NRP’s civil RICO claim against the City officials is barred by commonlaw legislative immunity because the mayor’s refusal to take the final steps necessary to approve the project was discretionary legislative conduct, and NRP’s prima facie case would require a factfinder to inquire into the motives behind that protected conduct. NRP’s “class of one” Equal Protection claim was properly dismissed because NRP failed to allege in sufficient detail the similarities between NRP’s proposed development and other projects that previously received the City’s approval. NRP’s claim for breach of contract was properly dismissed because the City’s “commitment letter” did not create a binding preliminary contract in conformity with the Buffalo City Charter’s requirements for municipal contracting. Finally, NRP fails to state a claim for promissory estoppel. Under New York law, promissory estoppel is unavailable against municipal entities except in rare cases of “manifest injustice.” N.Y. State Med. Transporters Ass’n, Inc. v. Perales, 77 N.Y.2d 126, 130 (1990). NRP’s claim in the end fails to meet this demanding standard. AFFIRMED.SUSAN L. CARNEY, C.J.We confront here primarily a question of legislative immunity raised by a mayor’s inaction in the face of welldeveloped but extracontractual expectations of the prospective developer of a lowincome housing project.A real estate development team that included plaintiffsappellants NRP Holdings LLC and NRP Properties LLC (together, “NRP”) made preliminary arrangements with the City of Buffalo (“Buffalo,” or the “City”) from 2007 to 2009 to build affordable housing on Cityowned land, a project that would be financed in large part by public grants, loans, and tax exemptions (the “Project”). As the planning phase drew to a close, NRP felt pressure from the City to hire an organization sponsored by a political ally of Mayor Byron W. Brown as a contractor on the Project. After NRP hired a different contractor — one that, in NRP’s estimation, offered a more attractive proposal at lower cost — the City failed to take the steps necessary to approve the Project, and the whole undertaking died on the vine.In the aftermath, NRP filed suit seeking damages in the United States District Court for the Western District of New York (Skretny, J.). As defendants, NRP named, inter alia, the City, the City’s Urban Renewal Agency, and three City officials (the latter three, the “individual defendants”): Mayor Brown; Deputy Mayor Steven M. Casey; and Demone A. Smith, a member of the Buffalo Common Council (the City’s legislative body). From 2012 through 2017, the District Court issued orders that resolved all of NRP’s claims in defendants’ favor, some by dismissal under Federal Rule of Civil Procedure 12(b)(6) and 12(c), and others by award of summary judgment under Rule 56. NRP now appeals the District Court’s 2017 final judgment as to four claims that it lodges against all of these defendants: one under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§1961-1968; an equal protection claim asserted under 42 U.S.C. §1983; and two New York commonlaw claims, one for breach of contract and one under a theory of promissory estoppel.We are troubled by the implications of the evidence that NRP adduced in support of its claims. That evidence suggests that defendants’ motives for scuttling the Project — a development that, it appears, might have benefited lowincome individuals and families in Buffalo — stemmed from either caprice or a form of political engagement whose ethical valence seems dubious. Nonetheless, as a matter of law, we conclude that NRP’s damages claims fail. We therefore AFFIRM the District Court’s judgment in favor of defendants.BACKGROUNDI. Factual backgroundThe following account is drawn from the record before the District Court when it adjudicated defendants’ motions for summary judgment.¹ The facts as described here are undisputed by the parties unless otherwise indicated.A. The proposed affordable housing projectIn late 2007, NRP’s development team began discussions with the City and the City of Buffalo Urban Renewal Agency (“BURA”) about a possible affordable housing project to be located on Buffalo’s East Side.² The Project was dubbed “East Side Housing Opportunities II” (“East Side II”) because it was intended to resemble a recent similar development project in the City, “East Side Housing Opportunities I” (“East Side I”), in which certain members of NRP’s development team had played key roles.As they had for East Side I, the parties developed a plan under which NRP would purchase real property from the City and finance construction of the buildings and infrastructure with a combination of private funds and four types of public support:(1) Federal “HOME” fund loans, which are made available under the HOME Investment Partnerships Program and allocated by state and local entities like BURA, see 42 U.S.C. §§12741-12756;(2) An agreement for “payments in lieu of taxes” (a “PILOT agreement”), under which NRP would be exempted from local and county property taxes, and would instead comply with a predefined schedule of payments to the City and to Erie County;(3) State tax credits provided under the New York State Low Income Housing Tax Credit Program, see N.Y. Pub. Hous. Law §§21-25; and(4) A lowinterest loan from the New York State Housing Trust Fund, see N.Y. Priv. Hous. Fin. Law §§1100-1103.Not surprisingly, each of these programs requires various applications and sets processes for obtaining the necessary governmental approvals. As relevant for this appeal, Buffalo municipal law provides that the City may enter into contracts for transfers of Cityowned property and for PILOT agreements only if such contracts have been approved by a vote of the City’s legislative body, called the “Common Council.” City law vests Buffalo’s mayor with broad discretion over whether to introduce to the Common Council the resolutions necessary to secure City approval.B. The Wanamaker letterIn February 2008, the City and BURA set forth the fundamentals of their undertakings with regard to East Side II in a series of letters addressed to NRP by Timothy Wanamaker, who then served as BURA’s Vice President and (concurrently) as the Executive Director of Buffalo’s Office of Strategic Planning. Most relevant for our purposes is a letter addressed to NRP and dated February 25, 2008 (the “Wanamaker letter”).In what he called a “commitment letter,” Wanamaker described East Side II as “redevelop[ing] a significant number of long vacant properties and creat[ing] much needed affordable housing” in Buffalo by providing “fifty…units of singlefamily homes in the Masten Park and Cold Springs neighborhoods.” App’x 40809. He confirmed to NRP that BURA had “earmarked” $1.6 million in HOME funds for the Project, App’x 408, noting at the same time that before issuing any such funds, “BURA is required to meet all applicable Federal, State and local rules and regulations,” App’x 409. Wanamaker also declared that “[t]he City will provide” $1.6 million in HOME funds, will extend its “usual” LowIncome Housing PILOT agreement to NRP, and will provide “51 buildable vacant lots…at a price no greater than $2,000 per buildable lot, and not to exceed a total price of $100,000.” Id. He cautioned, still, that “[t]his commitment letter is only valid if [NRP] is successful in securing a 2008 LowIncome Housing Tax Credit allocation to complete the project” from New York State. Id.C. Preliminary steps, but no final approvalIn 2008 and early 2009, the City, BURA, and NRP took further steps to make East Side II a reality. The City proposed a list of specific lots to be included in the Project. BURA unanimously passed a resolution allocating $1.6 million in federal HOME funds to the Project, an allocation decision that was then approved by the Buffalo Fiscal Stability Authority (“BFSA”), which oversees the City’s financial operations. Serving as an ex officio member of BFSA’s Board of Directors, Mayor Brown voiced no objection to BURA’s proposed allocation of HOME funds in the BFSA proceedings. In his capacity as Mayor, in March 2009 he filed a request with the United States Department of Housing and Urban Development (“HUD”) for the release of $1.6 million of HOME funds to support the Project.In deposition, Mayor Brown testified that he and the City “were trying to move this project forward” during this period, and “had every intention of supporting this project.” App’x 1055. He further acknowledged that, based on communications such as the Wanamaker letter and actions such as the City’s request to HUD for the release of funds, NRP’s development team “could definitely feel that they were receiving support from the city,” and “that it made sense for them to do everything that they were supposed to do to try to complete [the] project.” Id. at 1059-60.NRP did precisely that. It secured over $3 million in tax credits and lowinterest loans from New York State and completed various other Projectrelated tasks: it conducted appraisals and title searches for the proposed lots, prepared architectural designs, took out private loans, obtained insurance coverage, and submitted applications for requisite permissions to various governmental bodies with jurisdiction over the Project, such as the City Planning Board and the City’s Department of Economic Development, Permit and Inspection Services. During this planning phase, NRP spent more than $489,000 on unreimbursed Projectrelated expenses and uncompensated labor devoted to Projectrelated tasks.By mid2009, almost all the preliminary arrangements were in place. NRP was prepared to begin construction as soon as Mayor Brown signed off on certain final matters. Critically, the City’s legislature — the Common Council — had not yet approved the property transfer or the PILOT agreement because Mayor Brown had not yet introduced the necessary resolutions for the Council’s action.As it turned out, he never would. As a result, the Project never received the City’s final approval. NRP never broke ground, and East Side II was never built.To encounter such an impasse so late in the development process was apparently a rarity. Mayor Brown could not identify any other instance when an affordable housing project failed to proceed after BURA approved the needed allocation of HOME funds. As described above, he further testified that as late as March 2009, he and the City “had every intention of moving…forward” with East Side II. App’x 1828. Defendants have not offered any substantial explanation for the Mayor’s reversal.D. The City’s request to include the Jeremiah Partnership in East Side IINRP proffers this explanation: it asserts that Brown blocked East Side II in retaliation for NRP’s refusal to comply with the Mayor’s demand, Appellants’ Br. 2, namely, that NRP create a paid contractor role for a notforprofit coalition of faith-based organizations based in Buffalo’s East Side, referred to locally as the Buffalo Jeremiah Partnership for Community Development (the “Jeremiah Partnership”). That organization was led by the Reverend Richard A. Stenhouse, whom NRP characterizes as a “key opinion[ ]maker” in Buffalo and Brown’s “political ally.” Appellants’ Br. 10. Not surprisingly, the facts relevant to NRP’s assertion are disputed by the parties. Because this appeal arises out of defendants’ successful motions for summary judgment, we resolve all ambiguities and draw all reasonable inferences from the record in NRP’s favor. See Willey v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015).1. The City’s request that NRP hire the Jeremiah PartnershipAccording to sworn statements made by defendant Casey (then Buffalo’s deputy mayor), and Steven Weiss (NRP’s outside counsel during the planning phase of East Side II), Mayor Brown stated on multiple occasions in late 2008 and early 2009 that the Project would move forward only if NRP provided a prominent paid role for the Jeremiah Partnership.³ The Mayor expressed frustration, Casey and Weiss averred, that large development projects like East Side II were often orchestrated by “out of town white developers,” and said he wanted Reverend Stenhouse to be involved “as the face of [this] Project in the Black community.” App’x 2151.Several contemporaneous emails and letters corroborate these accounts. On March 12, 2009, for example, a BURA official emailed NRP seeking a signed agreement with NRP for the purposes, among other things, of meeting certain goals for local hiring and for inclusion of minority and womenowned business enterprises (“MWBEs”), and of “[w]ork[ing] with the…Jeremiah Partnership on this project.” App’x 1986. The BURA official wrote that she had met with Stenhouse and “worked out” an agreement under which the Jeremiah Partnership would “assist in recruiting local minority subcontractors,” and NRP would permit Jeremiahaffiliated individuals to “shadow” NRP staff throughout the Project so that those individuals could gain experience in contracting and development. Id.In a March 30, 2009 email to members of NRP’s development team, NRP Vice President Aaron Pechota complained that he had “just [been] put on the spot” when a City official reiterated to him the City’s request that NRP secure a “service contract” under which the Jeremiah Partnership would “help” NRP meet its goals for contracting with MWBEs (as requested by the City) and for employing lowincome individuals (as required by federal law for projects financed by HOME funds, see 12 U.S.C. §§1701u, et seq.). App’x 2000. Pechota noted that he was “waiting to hear how much [Jeremiah] want[s]” for those services, but explained to his colleagues that the City “ want[s] an answer asap (next 1.5 hours) if we are going to get our land approved [by the Common Council] tomorrow.” Id.Only one hour later, Stenhouse emailed NRP and City officials, proposing in a fiveline email that Jeremiah “provide mwbe and [lowincome] subcontractors for the fifty houses” to NRP in exchange for $30,000 and a year’s worth of “management training” for Jeremiah members. App’x 1984. Shortly thereafter on March 30, after meeting, NRP emailed a counterproposal, which it fleshed out the following day. NRP withdrew that offer, however, in a letter dated April 8, 2009, explaining that, “[t]o avoid even the appearance of any impropriety,” NRP had opted for “an open and public process to engage a local organization” for assistance with its hiring goals. App’x 1696. When Weiss notified Mayor Brown of NRP’s decision to proceed with competitive bidding, Brown replied (as Weiss averred) “that he didn’t care what [NRP] did so long as [it] hired ‘the right company.’” App’x 2170.On April 15 — before NRP released its request for proposals for Project subcontractors (the “RFP”) — a Jeremiah representative emailed Pechota a proposed service agreement, advising that “Reverend Stenhouse is ready to place his call to the Mayor endorsing our approach, provided I can show him an executed agreement with your firm.” App’x 2004. Two weeks later, the City’s Commissioner of Economic Development told Mayor Brown and Deputy Mayor Casey that he’d met with Weiss, who “said [NRP] knows what to do” and “will do it.” App’x 2008. The Commissioner wrote further, “Rev. Stenhouse will call [the] Mayor should that contract be signed this AM. IF that happens, presumably the file could be introduced for passage today [before the Common Council].” Id. When a City official promptly followed up, however, Pechota responded that NRP “cannot execute any documentation prior to undertaking the RFP process.” App’x 2010.2. NRP’s competitive bidding processIn late April 2009, NRP released its RFP for outreach services. It received responsive proposals from, among others, the Jeremiah Partnership, and the University at Buffalo’s Center for Urban Studies (the “University Center”). As compared to Jeremiah’s threepage offering, the University Center’s twelvepage proposal provided substantial detail when describing the Center’s past successes and its proposed work plan for East Side II. Moreover, Jeremiah’s bid of $80,000 — which included an opaque lumpsum “administrative” fee of $35,000 — was nearly double the University Center’s bid of $40,524 for what to all appearances was a substantially similar set of services.In a letter dated May 12 of that year, NRP notified the City that it had selected the University Center for the job, explaining that the Center’s proposal “ranked far superior to the others.” App’x 2094. Weiss shared this news with Mayor Brown in a conversation. As Weiss remembered it, the Mayor responded, “I told you what you had to do and you hired the wrong company.” App’x 2171.3. Mayor Brown’s professed reasons for declining to approve East Side IIAccording to Deputy Mayor Casey, Mayor Brown’s attitude toward East Side II “pivoted” after NRP selected the University Center over the Jeremiah Partnership. App’x 2152. For the first time, Brown began expressing concerns about two features of the Project: first, that the housing units would be built on scattered sites rather than in one consolidated area; and second, that the units would be made available on a 30year renttoown basis rather than on other terms. Those two features had been part of East Side II’s design from the very beginning, however, as confirmed by the February 2008 Wanamaker letter. The City itself identified the specific lots to be included in the Project, and later approved at least one other housing project that was similarly built on scattered sites. Meanwhile, Wanamaker had declared in his February 2008 letter that the City supported the leasetoown financial structure because it would “provide[] future homeownership opportunities to residents who are not currently prepared to become homeowners, while providing them with clean, stateoftheart housing today.” App’x 409.Meanwhile, June passed with no action by the Mayor. In a letter dated July 10, 2009, NRP protested to Mayor Brown that “[t]he only reason the Project has not and will not move forward is the inaction of your office,” including Brown’s failure to “forward[] necessary resolutions to the Buffalo Common Council.” App’x 2119. In NRP’s view, the City had “repeatedly communicated…that the real reason for the inaction” was NRP’s decision not to “contract with the Jeremiah Partnership as a consultant.” Id.II. Procedural historyNRP filed suit in June 2011, asserting claims under federal and New York State law against the City, BURA, and the individual defendants.⁴ From 2012 through 2017, the District Court issued a series of orders that collectively resolved all claims in defendants’ favor. See NRP Holdings LLC v. City of Buffalo, No. 11CV472S, 2012 WL 2873899, 2012 U.S. Dist. LEXIS 97027 (W.D.N.Y. July 12, 2012) (granting in part a motion to dismiss by the City and the individual defendants); NRP Holdings LLC v. Buffalo Urban Renewal Agency, No. 11CV472S, 2013 WL 5276540, 2013 U.S. Dist. LEXIS 132602 (W.D.N.Y. Sept. 17, 2013) (granting in part BURA’s motion to dismiss); NRP Holdings LLC v. City of Buffalo, No. 11CV472S, 2015 WL 9463199, 2015 U.S. Dist. LEXIS 172153 (W.D.N.Y. Dec. 28, 2015) (granting in part defendants’ motions for judgment on the pleadings); NRP Holdings LLC v. City of Buffalo, No. 11CV472S, 2017 WL 745860, 2017 U.S. Dist. LEXIS 27064 (W.D.N.Y. Feb. 27, 2017) (granting defendants’ motions for summary judgment).NRP timely appealed the resulting judgment entered for defendants, challenging the District Court’s resolution of the following four sets of claims:(1) A civil RICO claim asserted against the individual defendants (resolved by summary judgment);(2) A violation of the Equal Protection Clause, asserted via section 1983 against the City, BURA, and the individual defendants (dismissed under Rule 12(b)(6));(3) A claim for breach of contract asserted against the City and BURA (dismissed under Rule 12(b)(6)); and(4) A claim for promissory estoppel asserted against the City, BURA, and the individual defendants (dismissed in part under Rule 12(c), and later resolved by summary judgment).⁵DISCUSSIONWe review de novo dismissals under Rules 12(b)(6) and 12(c), asking whether the allegations in the complaint, taken as true, state a plausible claim for relief. Willey, 801 F.3d at 6162. We also review de novo an order granting summary judgment under Rule 56, construing all record evidence in the light most favorable to the nonmoving party. Id. at 62. We will affirm a summary judgment only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).NRP’s allegations and evidence raise troubling questions about defendants’ conduct regarding the East Side II development, particularly insofar as it can reasonably be inferred that the City would have approved the Project had NRP only agreed to pay the Mayor’s ally for services in an amount that might be subject to question. For the reasons set forth below, however, we are nonetheless constrained to affirm the District Court’s judgment on all claims. We conclude first that NRP’s civil RICO claim is barred by the commonlaw doctrine of legislative immunity. Second, as to its claim for a “class of one” equal protection violation, NRP’s complaint fails because it does not sufficiently allege the existence of similarly situated comparators. Next, NRP does not state a viable claim for breach of contract because NRP has failed to show that either the City or BURA entered into a binding preliminary agreement under municipal contracting rules that obligated the parties to continue negotiating in good faith. Finally, NRP fails to state a claim for promissory estoppel under New York law because it has not shown that defendants’ conduct worked a “manifest injustice” — a stringent standard that is only rarely met by a plaintiff desiring to pursue a promissory estoppel claim against a municipal entity in New York.I. Civil RICONRP asserts a civil RICO claim under 18 U.S.C. §1964 against the individual defendants, each in his individual capacity.⁶ It characterizes these defendants as conspiring to extort concessions from NRP (and from other unnamed developers working on other affordable housing projects), in violation of 18 U.S.C. §1962(c) and (d).⁷ To succeed on this claim, however, as we explain below, NRP must adduce facts concerning Mayor Brown’s failure to introduce certain Projectrelated resolutions before the City’s Common Council — ultimately the action, or perhaps better termed the inaction, that ended the East Side II Project. Because we conclude that his failure to introduce the necessary resolutions amounted to protected legislative conduct, we agree with the District Court that NRP’s civil RICO claim is barred by the commonlaw doctrine of legislative immunity. Accordingly, we affirm the court’s award of summary judgment to the individual defendants on NRP’s civil RICO claim.A. Legislative immunity for state and local officialsUnder the Speech or Debate Clause of the federal Constitution, members of the United States Congress enjoy absolute immunity from civil and criminal liability for conduct that falls “within the sphere of legitimate legislative activity.” Eastland v. U. S. Servicemens Fund, 421 U.S. 491, 503 (1975) (discussing U.S. Const. art. I, §6, cl. 1).⁸ The Supreme Court has determined that, under the common law, state and local government officials similarly enjoy absolute immunity against federal civil claims asserted against them in their individual capacities for equivalent legislative activity. Bogan v. ScottHarris, 523 U.S. 44, 49 (1998). “Regardless of the level of government,” the Bogan Court explained, “the exercise of legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability.”⁹ Id. at 52.The related commonlaw immunity that the Court has recognized attaches to particular types of conduct, not to particular job titles. See Gravel v. United States, 408 U.S. 606, 624-25 (1972). Thus, “officials outside the legislative branch” may be entitled to legislative immunity when “they perform legislative functions.” Bogan, 523 U.S. at 55 (mayor performed “formally legislative” activities when introducing a budget resolution and signing an ordinance); see also Sup. Ct. of Va. v. Consumers Union of U. S., Inc., 446 U.S. 719, 731 (1980) (state supreme court acted legislatively when it issued attorney code of conduct). Analysis of the function at issue is therefore critical to a determination of whether legislative immunity will shield a defendant.As discussed in greater detail below, a defendant may be entitled to invoke legislative immunity when the plaintiff’s prima facie case depends on an inquiry into the defendant’s legislative activity. United States v. Brewster, 408 U.S. 501, 512 (1972). A comprehensive immunity analysis thus would require a court to determine each individual defendant’s potential entitlement to legislative immunity by considering whether NRP’s civil RICO claim targets legislative conduct engaged in by that defendant. Here, that would call for scrutiny of NRP’s civil RICO claim with respect to each defendant. Neither the District Court nor the parties performed that type of individualized assessment here, however. Instead, they focused solely on the question whether Mayor Brown performed a legislative function when he declined to introduce those anticipated resolutions before the Common Council that would have approved a sale of Cityowned property to NRP and a PILOT agreement. In the sections that follow, we adopt the parties’ general approach and address each element of the legislative immunity defense, asking, first, whether Brown’s conduct was legislative in nature and, if so, whether NRP must adduce facts concerning that conduct to state a valid civil RICO claim against one or more of the individual defendants.B. Characterizing Brown’s conduct as “legislative” or “administrative”As we have observed, the Supreme Court directed courts to accord absolute legislative immunity to “all actions taken in the sphere of legitimate legislative activity.” Bogan, 523 U.S. at 54 (internal quotation marks omitted). In doing so, it stressed that “[w]hether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it.” Id.Drawing on Bogan, our Court has defined a twopart inquiry for determining whether an act is legislative:First, it is relevant whether the defendants’ actions were legislative in form, i.e., whether they were integral steps in the legislative process. Second, it may also be relevant whether defendants’ actions were legislative in substance, i.e., whether the actions bore all the hallmarks of traditional legislation, including whether they reflected discretionary, policymaking decisions implicating the budgetary priorities of the government and the services the government provides to its constituents.State Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 89 (2d Cir. 2007) (first emphasis added) (internal quotation marks, citations, and alterations omitted). When “highlevel executive branch officials” like Mayor Brown seek to “claim the protections of an immunity traditionally accorded to members of the legislative branch,” they must “show that their activities were ‘legislative’ both in form and in substance.” Id. (final emphasis added).We conclude that Mayor Brown’s discretionary conduct in declining to introduce the necessary resolutions before the Common Council satisfies both elements of the Rowland test, and therefore constitutes protected legislative activity. Our reasons are as follows.As an initial matter, Brown’s actions (or specific inaction, here) seem to us without doubt legislative in form. Introducing a measure for a vote by a legislative body amounts to an “integral step[] in the legislative process,” and is therefore a “formally legislative” act, even when performed by an executive official. Bogan, 523 U.S. at 55; see also Kilbourn v. Thompson, 103 U.S. 168, 204 (1880) (legislative immunity protects “resolutions offered”). If introducing a resolution is a legislative act, then, precedent suggests, so must be refusal to introduce a resolution. See Sup. Ct. of Va., 446 U.S. at 731-34 (concluding that Virginia Supreme Court acted legislatively both when it promulgated attorney code of conduct and when it declined to amend code of conduct); see also Yeldell v. Cooper Green Hosp., Inc., 956 F.2d 1056, 1063 (11th Cir. 1992) (explaining that legislative immunity “protect[s] the democratic integrity of the legislative process” by preventing individuals from suing legislators “to ensure that a certain piece of legislation is brought before [a legislative] body for a vote”). The “exercise of legislative discretion” that legislative immunity is meant to protect, Bogan, 523 U.S. at 52, surely implies a genuine choice whether or not to perform a given legislative act.We turn, therefore, to the second element of the Rowland test, which asks whether Brown’s conduct was legislative in substance. On this point, we lack the benefit of any precedential cases presenting similar facts. Since Bogan, our discussions of legislative immunity for state and local officials in precedential opinions have arisen primarily from disputes concerning individuals in public employment, not real estate or largescale public projects.¹⁰ Those employment cases established the following principles, instructive here: “The elimination of a position…is a substantively legislative act…. By contrast, a personnel decision is administrative in nature if it is directed at a particular employee…and is not part of a broader legislative policy.” Rowland, 494 F.3d at 91 (emphases added) (internal quotation marks, citations, and alterations omitted).¹¹Reasoning from those cases, NRP argues that “[i]n the land development context, refusal to process a proposed development plan and/or issue a needed permit is administrative in nature, and thus not protected by legislative immunity.” Appellants’ Br. 36. In support, it cites Anderson Group, LLC v. City of Saratoga Springs, 557 F. Supp. 2d 332 (N.D.N.Y. 2008), in which the district court concluded that legislative immunity protected members of the Saratoga Springs City Council who voted to rezone a district, but not members of the City Planning Board who — allegedly in bad faith — delayed adjudicating a particular application for a special use permit. Id. at 345. The Planning Board defendants appealed and, in a nonprecedential order, this Court affirmed the denial of legislative immunity to those defendants on the grounds that the action taken with regard to the special use permit application was “administrative in nature.” Anderson Grp., LLC v. Lenz, 336 F. App’x 21, 23 (2d Cir. 2009) (summary order). NRP argues that Mayor Brown’s “conduct was [similarly] administrative in nature because…it was directed [at] a single developer on a single project and was not part of a broader legislative policy.” Appellants’ Br. 35.Although the argument has some force, it fails to persuade us. Even if the Anderson rulings were binding here (and they are not), their factual setting is quite unlike that presented by NRP, and their conclusions would not affect our result. In this case, NRP did not merely apply to a planning board seeking, pursuant to well-established zoning rules, a permit to build homes on its own land using its own money. Rather, East Side II was conceived as a joint publicprivate venture through which the City would expand affordable housing options for its residents by contributing substantial municipal resources. Had the Project proceeded, these contributions would have taken the form of (as listed supra Background Section I.A) a PILOT tax incentive, the transfer of Cityowned property, and the allocation of $1.6 million in BURA-administered HOME funds. Mayor Brown, the City’s chief executive, faced the decision whether to seek Common Council approval for certain aspects of the Project. Those aspects affected municipal resources in their own right and carried additional significance when viewed in context: approval of those features was needed before NRP could secure financing and begin construction. Unlike the zoning board in Anderson, Brown was not deciding simply whether to seek the Common Council’s blessing for a private development project; he was deciding whether a multimilliondollar housing project, which would use extensive City resources, should proceed at all.Upon review of these circumstances, we agree with the District Court that Mayor Brown’s decision not to introduce the resolutions for Common Council action amounted to a “discretionary, policymaking decision[]” that implicated the City’s “ budgetary priorities…and the services [it] provides to its constituents.” NRP Holdings, 2017 WL 745860, at *8, 2017 U.S. Dist. LEXIS 27064, at *24 (quoting Rowland, 494 F.3d at 89). We decide, therefore, that Mayor Brown’s conduct in failing to present the resolution for Common Council action was legislative in substance, as well as in form, and thus constitutes protected legislative conduct for purposes of our analysis of commonlaw legislative immunity.NRP argues that Brown’s conduct is nonetheless not entitled to legislative immunity because his alleged paytoplay scheme removes his actions from the “sphere of legitimate legislative activity.” Rowland, 494 F.3d at 89 (quoting Bogan, 523 U.S. at 54) (emphasis added). This argument fails, however, because it conflates Brown’s legislative conduct — his inaction before the Common Council — with other possibly illicit and unprotected acts in his alleged scheme — that is, his purported demands that NRP hire Stenhouse for what NRP describes as substantially a noshow role. The term “legitimate,” as we and the Supreme Court have used it in this context, serves no function other than to emphasize that legislative immunity attaches only when a given act is validly classified as legislative. See Tenney v. Brandhove, 341 U.S. 367, 377 (1951) (“The claim of an unworthy purpose does not destroy the privilege.”).C. Identifying the relevant conduct for civil RICO purposesHaving concluded that by declining to submit the resolutions for approval, Mayor Brown engaged in protected legislative conduct, we next consider whether that conduct is an essential component of NRP’s civil RICO claim. We conclude that NRP’s theory of RICO liability against all three individual defendants depends, in part, on a showing that Brown’s legislative decision not to introduce Common Council resolutions was fatally tainted by improper motive.¹² The Mayor could have declined to introduce the resolutions for either legitimate or illegitimate reasons; either way, this decision is protected by legislative immunity. We therefore affirm the District Court’s conclusion that legislative immunity bars NRP’s civil RICO claim against the individual defendants.1. The defense of legislative immunity is available against only those claims that would require a factfinder to consider evidence of an official’s legislative actions. The Supreme Court defined the contours of this test in a pair of decisions arising out of federal corruption prosecutions: United States v. Johnson, 383 U.S. 169 (1966), and United States v. Brewster, 408 U.S. 501 (1972). Before discussing these cases, we pause to explain why, in a civil appeal concerning commonlaw legislative immunity asserted by city officials, we see fit to rely on criminal cases that addressed constitutional legislative immunity asserted by federal officials in defending criminal prosecutions.The District Court appeared to disclaim reliance on any legislative immunity cases arising out of criminal proceedings, explaining that, unlike constitutional legislative immunity, commonlaw legislative immunity does not protect against federal criminal prosecutions. The District Court is correct that constitutional immunity protects against a broader set of claims than does the commonlaw doctrine. See United States v. Gillock, 445 U.S. 360, 373 (1980); Lake Country Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391, 405 (1979). That difference in scope aside, however, courts have generally construed the two doctrines to be closely parallel in application. See Sup. Ct. of Va., 446 U.S. at 733 (“[W]e generally have equated the legislative immunity to which state legislators are entitled…to that accorded Congressmen under the Constitution.”); Star Distributors, Ltd. v. Marino, 613 F.2d 4, 8 (2d Cir. 1980) (“The shared origins and justifications of these two doctrines would render it inappropriate for us to differentiate the scope of the two without good reason.”); Schmidt v. Contra Costa Cty., 693 F.3d 1122, 1132 (9th Cir. 2012) (characterizing “commonlaw immunity against civil suits” as “parallel to the immunity provided by the Speech or Debate Clause”).Here, neither the District Court nor the parties have offered any basis for presuming that the civil or criminal nature of a case would influence a court’s determination that a defendant’s conduct constitutes (or does not constitute) protected legislative activity, or that the conduct is (or is not) integral to the opposing side’s prima facie case. We thus see no reason not to look for guidance to Supreme Court precedent arising out of criminal, as well as civil, proceedings, as have our sister circuits in other civil appeals. See, e.g., Youngblood v. DeWeese, 352 F.3d 836, 840 (3d Cir. 2004) (in civil case, citing criminal decisions that address definition of “legislative” activity); Thillens, Inc. v. Cmty. Currency Exch. Ass’n of Ill., Inc., 729 F.2d 1128, 1131 (7th Cir. 1984) (in civil case, citing criminal decisions that discuss “prima facie” standard). Because these criminal cases may provide useful insight, then, we now turn to a closer discussion of Johnson and Brewster.In 1966, in Johnson, the Court affirmed the Fourth Circuit’s decision setting aside a federal representative’s criminal conspiracy convictions on legislative immunity grounds. The charged offense conduct at issue on appeal consisted primarily of accepting bribes in exchange for making a speech in the House of Representatives; the prosecution’s conspiracy theory “depended upon a showing that the speech was made solely or primarily to serve private interests.” 383 U.S. at 177. In other words, the prosecution asked the jury to consider both the “motives underlying the making of the speech” and the speech’s “contents” to convict. Id. at 184. Finding that the act of delivering the speech in the House was quintessentially legislative activity, the Court declined to consider the asserted motivations for the act, and concluded that the representative was entitled to constitutional legislative immunity.¹³In contrast, in Brewster, the Court determined that a former U.S. Senator was not entitled to legislative immunity. The former legislator was charged under a statute that the Court characterized as criminalizing “accepting a bribe in exchange for a promise relating to an official act.” 408 U.S. at 502 (describing 18 U.S.C. §201(c)(1), (g)). Critically, in Brewster the government bore no obligation to show that the defendant former Senator “fulfilled the alleged illegal bargain” because the statutory violation was complete upon accepting something of value in exchange for a promise. Id. at 526 (emphasis added). As the Court observed, “Taking a bribe is, obviously,…not a legislative act.” Id. Thus, the defendant was not entitled to legislative immunity: unlike in Johnson, “no inquiry into legislative acts or motivation for legislative acts [was] necessary for the [prosecution] to make out a prima facie case.” Id. at 525. All that was needed was the threshold determination that the act for which he was prosecuted — accepting a bribe — was not legislative.2. Applying this framework to the case at hand, we begin by identifying the required elements of NRP’s civil RICO claim against the three individual defendants. We next consider whether NRP, as plaintiff, can satisfy those elements without considering the fact of, or motives for, Mayor Brown’s refusal to seek Common Council approval for the transfer of Cityowned lots or the PILOT agreement. Because we determine that the circumstances of this case preclude NRP from doing so, we hold that the three individual defendants are shielded by legislative immunity.To state a civil RICO claim, NRP must show, first, that the individual defendants committed a substantive RICO violation, and second, that the violation proximately caused an injury to NRP’s business or property. See 18 U.S.C. §1964(c); DAddario v. DAddario, 901 F.3d 80, 96 (2d Cir. 2018). As to the second element, NRP asserts that it was directly injured by the individual defendants’ demands that it provide the Jeremiah Partnership with an (overpriced) paid consulting role in East Side II. Attempting to draw an analogy to Brewster, NRP insists that “the extortion[ate] demand itself [gave] rise to fear of economic loss, regardless of whether…[the individual defendants] made good on this threat.” Appellants’ Reply Br. 21. This fear, they urge, was injury enough to sustain that claim.NRP’s theory falls short of the mark. NRP has cited no authority to support its assertion that mere fear of economic loss is sufficient to satisfy the required RICO element of a compensable injury to business or property. In our view, the only potentially cognizable injury to NRP in this matter consists of the $489,000 in expenditures that it incurred during the Project’s preliminary planning phases. Those expenditures did not become losses, however, until the Project failed to move forward as planned. To show a proximately caused injury, NRP must demonstrate that East Side II failed to move forward because of a substantive RICO violation committed by the individual defendants. DAddario, 901 F.3d at 96 (requiring RICO plaintiffs to show “some direct relation between the injury asserted and the injurious conduct alleged”); see, e.g., Chappell v. Robbins, 73 F.3d 918, 921 (9th Cir. 1996) (concluding that a state senator’s “acceptance of bribes caused no injury” to plaintiff, a private citizen, until the senator “acted on those bribes and pushed legislation through” that harmed plaintiff’s business (emphasis added)). This, they cannot do without reference to the Mayor’s failure to introduce the required resolutions — the act that is legislative in substance and in form.It is undisputed that the East Side Housing II development could not be realized without a transfer of Cityowned property and execution of a PILOT agreement, and that both of these acts required the Common Council’s approval. It is also undisputed that Mayor Brown retained sole discretion over whether to introduce the resolutions necessary to obtain that approval. Brown’s decision not to introduce those resolutions thus constitutes a “necessary step in the causal chain linking the [individual] defendant[s'] alleged [misconduct] to [NRP's] injury.” Sergeants Benevolent Ass’n Health & Welfare Fund v. SanofiAventis U.S. LLP, 806 F.3d 71, 87 (2d Cir. 2015). Whatever RICO violations the individual defendants may have committed during the Project’s planning phase, NRP cannot show an injury proximately caused by those violations without inquiring into Brown’s discretionary decision not to seek Common Council approval for the land transfer and the PILOT agreement. If Brown’s decision was not itself a RICO violation, and if he was authorized to make the same decision irrespective of any prior racketeering activity, that decision would amount to an intervening cause sufficient to break the causal chain. See id.¹⁴We determined above that Brown’s inaction regarding the Common Council resolutions was protected legislative conduct. We now conclude that NRP is unable to “make out a prima facie case” on its RICO claim without reliance on that legislative conduct. Brewster, 408 U.S. at 525. NRP’s civil RICO claim as against all three individual defendants is therefore barred by the legislative immunity that attaches to Brown’s protected legislative conduct. See, e.g., Chappell, 73 F.3d at 92122 (affirming dismissal of civil RICO claim “because the conduct by which the [defendant senator's] bribe proximately caused [plaintiff's] injury was legislative, and therefore immune”).For these reasons, we affirm the District Court’s grant of summary judgment on NRP’s civil RICO claim to the three individual defendants.II. Equal ProtectionNRP also charges that the City, BURA, and the individual defendants violated NRP’s rights, as a “class of one,” under the Equal Protection Clause, thereby entitling it to damages under 42 U.S.C. §1983. The District Court dismissed this claim under Rule 12(b)(6). We affirm the dismissal because NRP failed to sufficiently allege the existence of similarly situated comparators.¹⁵Although “[t]he Equal Protection Clause has traditionally been applied to governmental classifications that treat certain groups of citizens differently than others,” the Supreme Court has also endorsed “a classofone theory for equal protection claims, under which a single individual can claim a violation of her Equal Protection rights based on arbitrary disparate treatment.” Fortress Bible Church v. Feiner, 694 F.3d 208, 221 (2d Cir. 2012) (emphasis added) (citing Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam)). To establish a “class of one” claim, a plaintiff must show that:(i) no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy; and (ii) the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendants acted on the basis of a mistake.Id. at 222 (quoting Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 60 (2d Cir. 2010)).NRP’s second amended complaint alleges that, pursuant to an “official custom or policy established by Brown, Casey, and/or Smith,”NRP was treated differently than other developers of projects in the City of Buffalo. When other developers found a way to pay monies to Stenhouse and/or affiliated organizations, [defendants] allowed their projects to proceed to completion. Because NRP refused to make such payments, [defendants]…actively took steps to kill the Project. The difference in treatment was not on the basis of any legitimate government policy or the product of a mistake.2d Am. Compl.