dissenting:
While in agreement with most of the panel’s opinion, I dissent on one discrete point — I believe summary judgment was inappropriate on Jackson Court’s claim that its waiver denial violated equal protection vis-a-vis the other exempted time-shares.
The essence of equal protection is that a state must treat those similarly situated similarly. Wilson P. Abraham Construction Corp. v. Texas Industries, Inc., 604 F.2d 897, 904 (5th Cir.1979), aff'd sub. nom. Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981). Hence the initial question must be whether Jackson Court and the other time-shares were similarly situated, or put differently, were members of the same class.
The majority believes that New Orleans established a prima facie case that the exempted time-shares belonged in a different class because of the different locations and ordinances. They therefore believe it was Jackson Court’s burden to offer rebutting evidence that it was in the same class as the exempted time-shares, which they believe Jackson Court never did. I disagree with this reasoning on three grounds. First, New Orleans never in either its original or renewed motion for summary judgment explicitly asked for summary judgment on the equal protection claim. Second, the difference in the location of the exempted time-shares from Jackson Court raises a question of fact. Such a factual finding must be made by the trial court. New Orleans did introduce the City Council’s clerk’s affidavit regarding the other time-shares’ locations, but the trial court never addressed this issue. Hence it is irrelevant whether Jackson Court failed to produce sufficient summary judgment evidence to counter it.1 Third, *1083by introducing the transcript of its waiver hearing and of various meetings surrounding the ongoing moratorium process, Jackson Court established at least prima facie that both sets of time-shares were in areas in which the city was concerned with neighborhood integrity. Jackson Court, therefore, may have been able to make a case that the relevant equal protection class was “time-shares in historic neighborhoods” and hence that it was similarly situated to the Faubourg Marigny time-shares but was unfairly discriminated against.
If the class for summary judgment purposes properly included the Faubourg Mar-igny time-shares, then the equal protection issue should be remanded because the district court applied the wrong test. The question here is not whether either moratorium was rational, but rather whether the ordinance was arbitrarily applied to Jackson Court (but not the others) through the reserved waiver process. The district court did not ask this question.
This claim might have some force if Jackson Court alleged that the discriminatory application was based on race, religion or national origin. See e.g., Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). But in the absence of such allegations, this court’s review of the challenged action is limited to whether the Council’s denial of Jackson Court’s request was rationally related to a legitimate state objective. As discussed above in the context of substantive due process, the Council’s action was rationally related to the legitimate objective of preserving residential integrity. Finding no discrimination based on race, religion, or national origin, this court need look no further.
Jackson Court, 665 F.Supp. 1235, 1253 (E.D.La.1987).
The district court’s opinion is flawed here on two grounds: 1) No justification for denial of the waiver vis-a-vis the other time-shares which had been given exemptions was offered by the City Council when denying Jackson Court’s waiver or by the district court. The district court instead found only that there was a rational basis to deny Jackson Court’s waiver, a due process issue. This is not enough under the equal protection clause because a comparison with the other time-shares is required. Burns v. City of Des Peres, 534 F.2d 103, 108 (8th Cir.), cert. denied, 429 U.S. 861, 97 S.Ct. 164, 50 L.Ed.2d 139, 97 S.Ct. 164 (1976). Such a comparison would require factual findings regarding the differences between Jackson Court and the exempted time-shares, which were not made. Hence summary judgment is inappropriate. 2) The district court incorrectly construed Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), which recognized equal protection violations resulting from discriminatory applications of otherwise valid statutes, as somehow restricting the doctrine to discrimination against suspect classes.
In a previous summary judgment case involving an equal protection claim and waiver denials between members of the same class, we held:
[I]f distinctions between similarly situated individuals are to withstand an equal protection analysis, such distinctions must be reasonable, not arbitrary, and must rest on grounds having a fair and substantial relation to the object of the legislation. See Stanton v. Stanton, 421 U.S. 7, 14, 95 S.Ct. 1373, 1377-78, 43 L.Ed.2d 688 (1975); cf. International Association of Firefighters, etc. v. City of *1084Sylacauga, AL, 436 F.Supp. 482, 488 (N.D.Ala.1977).
Zeigler v. Jackson, 638 F.2d 776, 779 (5th Cir.1981). The Alabama statute in Zeigler required that a peace officer not have a past record of conviction of a felony or of a misdemeanor involving force, violence, or moral turpitude. Zeigler was discharged by the Adamsville Police Department because he was found to have been convicted of two misdemeanors which did involve force, violence, or moral turpitude. The state commission, however, had waived the requirement for at least three other persons who had been convicted of similar but more serious crimes.
We reversed the district court’s summary judgment for the defendant, finding that Zeigler had stated an equal protection claim which deserved a trial on the merits. In doing so, we found that the commission failed to offer a rational justification for the different treatment accorded to Zeigler.2 The opinion further cited with approval a federal district court holding that “[wjhere waivers of a rule are not granted with consistency and no explanation is given for the disparity of treatment, a finding of denial of equal protection may be appropriate.” Id. at 779-80, quoting Louis v. Supreme Court of Nevada, 490 F.Supp. 1174, 1183 (D.Nev.1980). See also Bennett v. City of Slidell, 697 F.2d 657, (5th Cir.1983), rev’d in part on other grounds, 728 F.2d 762 (5th Cir.1984) (en banc), cert. denied, 472 U.S. 1016, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985).
The majority argues that in order to avoid summary judgment on an equal protection claim, it is Jackson Court’s obligation to demonstrate prima facie an infringement of a constitutional right or use of a suspect classification. The law does not go so far. While the circumstances in Zeigler smacked of racial discrimination, we did not require a specific showing of such discrimination to establish a prima facie case. Similarly, in Bennett the facts showed an obvious discriminatory intent. Issuance of occupancy permits was routine. Bennett’s prominent neighbor Coerver however sought to block Bennett’s proposed use of his property. After receiving letters from Coerver the city began to delay issuance of Bennett’s occupancy permit. See Sec. II. B. supra. The court stated, however, as its rationale for finding an equal protection violation: “[f]or whatever reason, be it political influence of Coerver or some other motive, Dugas singled out Bennett’s occupancy application for strictis-simi application of Slidell’s zoning ordi-nance_” Bennett at 661 (emphasis added).
The critical point is that it is the inconsistency of treatment which establishes a prima facie equal protection claim. A pri-ma facie showing of evil motive is not required. See also Cordeco Development Corp. v. Santiago Vasquez, 539 F.2d 256, 260 n. 5 (1st Cir.), cert. denied, 429 U.S. 978, 97 S.Ct. 488, 50 L.Ed.2d 586 (1976) and cases collected therein (arbitrary refusal to process a permit for sand extraction for political or personal motives stated an equal protection claim); cf. Scott v. Greenville County, 716 F.2d 1409, 1419-20 (4th Cir.1983) (due process claim analogous to equal protection claim made out sufficiently to avoid summary judgment when developer alleged arbitrary denial of permit for low-income housing, even in absence of class-based or invidious discrimination).
It may be that Jackson Court has little chance of victory on the merits. It established a prima facie case, however, that could not be rebutted without some factual findings with which to make a comparison. These necessary factual findings were blocked by the trial court’s summary judgment. Hence, the law requires that Jackson Court have the opportunity to make its *1085case through adjudication on the merits as to this one constitutional issue. This opportunity, required by law, occasions this dissent as to the summary judgment denying the equal protection claim.
. The City of New Orleans also suggested that the moratorium applied to Faubourg Marigny (Ordinance 8293) differed materially because it involved a completely different provision for adversely affected time-share owners than that of the city-wide moratorium here involved. Apparently the narrow ordinance under which the exemptions were granted had a "grandfather clause.” Already established time-share developers could appear before the City Council, *1083state that they were established, and would be excused from the moratorium’s provisions. The moratorium ordinance here involved, however, calls for an appeal before the City Council, at which the Council could waive the moratorium provisions upon a showing that the “party ... would experience undue hardship and that the character of the neighborhood involved would not be adversely affected.” New Orleans’ argument is that these waiver provisions are not similar enough for the previous four time-share projects to be considered in the same class as Jackson Court.
A careful search of the record reveals no copy of Ordinance 8293, and no transcript of the proceedings of the City Council regarding these waivers. Hence, we do not have the means to compare these with Jackson Court’s waiver. New Orleans appears to be assuming answers to factual and legal issues not considered by the district court.
. The record reflected that the two criminal charges which caused Zeigler’s dismissal may have been racially motivated. The deputy who brought the charges against Zeigler was white; Zeigler was black. That deputy was subsequently discharged from the force on brutality charges. The judge who convicted Zeigler wrote a laudatory letter in support of him and offered to testify on his hehalf. Nevertheless, the Fifth Circuit did not rely on a finding of racial motivation when we found Zeigler had a facially valid equal protection claim. The opinion merely held that the application of the statute had been arbitrary.