Opinion
IP 01-0533-C-B/G, CAUSE NO. IP01-0533-C-D/F
September 4, 2003
ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Indiana Land Company, LLC filed suit under 42 U.S.C. § 1983 against Defendant City of Greenwood, alleging that the Greenwood City Council violated Plaintiffs Fourteenth Amendment procedural due process, substantive due process and equal protection rights when it required a two-thirds vote, instead of the simple majority vote prescribed by state law, to overturn a recommendation of the City of Greenwood Planning Commission. Defendant moves for summary judgment, arguing that Plaintiff suffered no constitutional violation. For the reasons set forth below, weGRANT Defendant's Motion for Summary Judgment.
Factual Background
Plaintiff Indiana Land Company, LLC ("ILC"), an Indiana limited liability company, contracted to purchase 142 acres of real estate in Johnson County, Indiana, adjacent to Defendant City of Greenwood ("City"), an Indiana municipal corporation. Def.'s Stint, of Material Facts ("Facts") ¶¶ 1, 2, 4; Pl's Stmt. of Add'1 Material Facts ("Add'l Facts") ¶ 17. ILC intended to develop the real estate into a residential subdivision. Facts ¶ 5; Add'l Facts ¶ 19. In furtherance of this intention, in 1999, ILC filed a petition, PC 99-56, with the City of Greenwood Planning Commission ("Planning Commission") to annex the real estate into the City and to rezone the real estate from agricultural (A-1) to residential (R-2A and R-3). Add'l Facts ¶ 18. Following a recommendation by the Planning Commission to redesign the proposed residential subdivision as a planned unit development ("PUD"), in January 2000, ILC filed a new petition, PC 2000-04, for the real estate to be annexed and rezoned PUD.Id. ¶¶ 19-22.
Despite ILC's redesign of its petition, on January 10, 2000, the Planning Commission sent an unfavorable recommendation of ILC's petition to the Greenwood City Council ("Council"). Facts ¶ 6; Add'l Facts ¶ 23. On March 20, 2000, the Council held a public hearing to consider ILC's petition, which came before the Council as proposed Ordinance 00-03. Facts ¶ 7; Add'l Facts ¶ 24. After a discussion involving ILC representatives, members of the community, City officials and Council members, the Council voted on the Planning Commission's unfavorable recommendation of ILC's petition. Six of the seven Council members were present for the vote, and their vote resulted in a three-three tie. Facts ¶¶ 8-9; Def.'s Designation Tender of Evid., Ex. 3. The Mayor of Greenwood attempted to break the tie by voting in favor of ILC's petition. Facts ¶ 9; Add'l Facts ¶ 26. After the vote, a Council member challenged the legality of the majority vote, referencing Greenwood Municipal Code § 10-136, 9.09.06, which requires a two-thirds vote to overturn a recommendation of the Plan Commission (the "Two-Thirds Ordinance"). Facts ¶ 9. The Two-Thirds Ordinance contains a footnoted reference to Indiana Code § 36-7-4-609, the state statute addressing the vote required for legislative action on a zoning amendment. Section 36-7-4-609 states that "[a] legislative body may take action . . . only by a vote of at least a majority of all the elected members of the body." City Attorney Shawna Koons-Davis agreed to research the validity of the Two-Thirds Ordinance and its applicability to the Council's March 20, 2003 vote, and the Council agreed to debate these issues at its next meeting.
On April 17, 2000, the Council considered the validity of its March 20, 2000 majority vote. Facts ¶ 10; Add'l Facts ¶ 27. Before the April 17, 2000 meeting, the City Attorney distributed a memorandum advising each Council member of her opinion that the Two-Thirds Ordinance was invalid because it conflicted with state statutes, including Indiana Code § 36-4-6-12, which states that "[a] majority vote of the legislative body is required to pass an ordinance, unless a greater vote is required by statute." Add'l Facts ¶¶ 28-35. Despite the City Attorney's opinion that the Two-Thirds Ordinance was unenforceable, Council members stated the following reasons for upholding the Two-Thirds Ordinance: (1) the public would perceive overturning the local Two-Thirds Ordinance in favor of a state statute benefitting ILC as "a railroad job," (2) the state statute providing for the passage of local ordinances by majority vote may be interpreted as permissive rather than mandatory, (3) the Council must treat its local constituency consistently and according to the laws as they stand on the books, and therefore, must uphold a local ordinance in conflict with a state statute, and (4) other attorneys consulted by Council members offered legal opinions supporting application of the Two-Thirds Ordinance. PL's Designation Tender of Evid., Ex. 13, at pp. 6, 11-12, 15, 19.
After discussion, the Council voted unanimously to apply the Two-Thirds Ordinance to the March 20, 2000 vote, rendering it insufficient to overturn the Plan Commission's unfavorable recommendation of ILC's petition. Facts ¶ 10; Add'l Facts ¶ 37-38. Therefore, ILC's petition was defeated. After the Council voted to apply the Two-Thirds Ordinance to ILC's petition, it voted to amend the Greenwood Municipal Code to require only a simple majority vote in order for the Council to act upon (approve or overturn) any recommendation from the Plan Commission. Add'l Facts ¶¶ 39-41.
ILC did not challenge the validity of the Two-Thirds Ordinance in state court following the Council's application of the Two-Thirds Ordinance to its petition. Rather, upon the recommendation of the Mayor of Greenwood, ILC redesigned its proposed PUD development and filed a second request for rezoning and annexation, PC 2000-43, with the Plan Commission. Add'l Facts ¶¶ 43-44. On August 28, 2000, the Plan Commission voted 8-2 to forward a favorable recommendation to the Council of ILC's second petition. Facts ¶ 12. On November 8, 2000, the Council overturned the Plan Commission and denied ILC's second petition by a vote of 4-3; ILC's second petition was before the Council as proposed Ordinances 00-35 and 00-36. Id.; Add'l Facts ¶¶ 47-48; Def.'s Designation Tender of Evid. Ex. 3, p. 3.
On April 4, 2001, ILC filed a Complaint with the Johnson County Superior Court. The City removed the case to this court on April 21, 2001.
Legal Analysis Summary Judgment Standard
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986); Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998).
On a motion for summary judgment, the burden rests on the moving party to demonstrate "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). After the moving party demonstrates the absence of a genuine issue for trial, the responsibility shifts to the non-movant to "go beyond the pleadings" and point to evidence of a genuine factual dispute precluding summary judgment. Id. at 322-23. "If the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in his favor on a material question, then the court must enter summary judgment against him." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986)); Celotex, 477 U.S. at 322-24; Anderson 477 U.S. at 249-52.
Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle for resolving factual disputes. Waldridge, 24 F.3d at 290. Therefore, in considering a motion for summary judgment, we draw all reasonable inferences in favor of the non-movant. Venters v. City of Delphi, 123 F.3d 956, 962 (7th Cir. 1997). If genuine doubts remain, and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate. See Shields Enterprises., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). But if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish his case, summary judgment is not only appropriate, but mandated. See Celotex, 477 U.S. at 322; Waldridge, 24 F.3d at 920.
Section 1983ILC claims that the City of Greenwood violated § 1983 of the Civil Rights Act, which provides a cause of action for the "deprivation of any rights, privileges, or immunities secured by the Constitution and laws" by any person acting "under color of any statute, ordinance, regulation, custom or usage, of any State or Territory." 42 U.S.C. § 1983. Therefore, to state a claim under § 1983, plaintiff must show that (1) the offending conduct was committed by a person acting under color of state law, and (2) that such conduct deprived the plaintiffs of rights secured by the Constitution. See Smith v. City of Chicago, 820 F.2d 916, 917 (7th Cir. 1987). A municipality violates the Constitution when it has an unconstitutional custom or policy. A "custom" or "policy" can take one of three forms: (1) an express policy that, when enforced, causes a constitutional deprivation; (2) a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a "custom or usage" with the force of law; or (3) an allegation that the constitutional injury was caused by a person with final policy-making authority. McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir. 1995).
ILC asserts that the Greenwood City Council, the legislative body of the City of Greenwood acting under color of state law, is the final decision-making authority with regard to local ordinances and their application, and therefore, that a single act or decision by the Council may constitute municipal policy. Pembaur v. City of Cincinnati, 475 U.S. 469. 480 (1986). Specifically, ILC contends that the Council violated ILC's Fourteenth Amendment procedural due process, substantive due process and equal protection rights when the Council required a two-thirds vote, instead of the simple majority vote prescribed by state law, to overturn a recommendation of the Plan Commission. The City, on the other hand, argues that ILC has failed to demonstrate that any genuine issue of material fact exists with regard to any of its claims, and that the evidence proffered by ILC does not satisfy the legal requirements necessary to establish its case.
Procedural Due Process
The Due Process Clause of the Fourteenth Amendment provides: "[N]or shall any State deprive any person of life, liberty, or property, without due process of law." ILC claims that it was entitled "to have its applications for rezoning and annexation considered [by the Council] in accordance with the laws existing at the time of their filing." Compl. ¶ 10. A procedural due process inquiry is two-fold: first, we determine whether the City deprived ILC of a protected liberty or property interest, and if so, then we assess what process was due. Brokaw v. Mercer County, 235 F.3d 1000, 1020 (7th Cir. 2000). The first issue, whether the City deprived ILC of a protected interest, is one that, surprisingly, the parties failed to brief.
Although ILC does not frame its complaint in the form of a Takings Clause claim, we assume that ILC's property interest of which it was allegedly deprived was its interest in the land for which it sought annexation and rezoning to permit development. We draw this inference in part because ILC is foreclosed from claiming a property interest in the procedure the Council followed in making its annexation and zoning decision, i.e., the legislative vote itself. Assuming ILC's protected interest was its property interest in the real estate it sought to develop, we move to the issue of what process was due before any deprivation could properly occur. In making this determination, we apply the principle that "the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir. 1996).
The Takings Clause provides in relevant part that "[n]o person shall . . . be deprived of . . . property, without due process of law; nor shall private property be taken for public use, without just compensation." U.S. Const, amend. V. The Taking Clause of the Fifth Amendment applies to State action through the Fourteenth Amendment.Dolanv. Cirvof Tigard, 512 U.S. 374, 383-84 (1994).
While "the property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money,"Bd. of Regents v. Roth, 408 U.S. 564, 571-72 (1972), not every state or municipal law, regulation or ordinance creates an entitlement protected by the federal constitution. Doe by Nelson v. Milwaukee County, 903 F.2d 499, 502 (7th Cir. 1990). A property interest includes a "legitimate claim of entitlement" to some benefit created and defined by "existing rules or understandings that stem from an independent source such as state law." Roth, 408 U.S. at 577. One cannot have a property interest in mere procedures because "[p]rocess is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a claim of entitlement. Olim v. Wakinekona, 461 U.S. 238, 250-51 (1983): see also Cain v. Larson, 879 F.2d 1424, 1426 (7th Cir. 1989).
ILC claims that the procedures by which the City deprived it of the opportunity to develop its property did not comport with due process standards. ILC contends repeatedly, and perhaps correctly, that the Council did not follow state statutory procedure in applying the Two-Thirds Ordinance to ILC's annexation and zoning petition. Indiana Code Section 36-l-3-6(a) states that "[i]f there is a constitutional or statutory provision requiring a specific manner for exercising a power, a unit wanting to exercise the power must do so in that manner." Section 36-4-6-12 provides the specific manner in which a city's legislative body must pass an ordinance: "A majority vote of the legislative body is required to pass an ordinance, unless a greater vote is required by statute." The annexation and zoning statutes do not require a greater than majority vote, and therefore, on April 17, 2000, it appears that the Council erred in ratifying the Two-Thirds Ordinance and should have upheld its March 20, 2000 majority vote approving ILC's proposed PUD.
Deprivation of a property interest in violation of state law, however, is not itself a violation of the Constitution. See Archie v. City of Racine, 847 F.2d 1211, 1216 (7th Cir. 1988). What is unconstitutional is the deprivation of a protected property interest by the state without due process of law. Gable v. City of Chicago, 296 F.3d 531, 539 (7th Cir. 2002). ILC cites Rush v. Elkhart County Plan Commission 698 N.E.2d 1211 (Ind.App. 1998), for the propositions that "[t]he General Assembly has provided detailed procedures to provide due process to interested persons," and "[i]f the State imparts a due process right, then it must give that right." Id. at 1218. We do not disagree-the State must give that right, but only once a right is established under state law. Federal courts lack the authority to direct state officials to comply with state law. Archie, 847 F.2d at 1217 (citing Pennhurst State Sch. Hospital v. Halderman, 465 U.S. 89, 106 (1984)).
ILC's reliance on Rush in support of its argument is inapposite because there is no indication that ILC was denied an opportunity to be heard before the decision-making body, the Council, at the time it made its decision. ILC presented in detail its proposed ordinance at the March 20, 2000 Council meeting. When ILC's proposed ordinance passed by a vote of 4 to 3, one Council member raised the issue of the application of the Two-Thirds Ordinance, but discussion of the Two-Thirds Ordinance was postponed until the City Attorney could research the matter. The Council debated the Two-Thirds Ordinance at the April 17, 2000 Council meeting, when the City Attorney argued strongly against the validity of the Two-Thirds Ordinance.
In addition, the City argues, correctly, we conclude, that adequate state remedies exist. ILC could have filed a declaratory judgment action in state court under Indiana Code § 34-14-1 to challenge the validity of the Council's requirement of a two-thirds vote rather than the majority vote prescribed by statute. See, e.g., Ind. Waste Sys., Inc. v. County of Porter, 787 F. Supp. 859, 866 (N.D. Ind. 1992) ("Under Indiana law, petitioning a court for a declaratory judgment is the proper approach to determine the constitutionality of an ordinance."); Ind. Waste Sys., Inc. v. Board of Com'rs of Howard County, 389 N.E.2d 52, 56 (Ind.App. 1979) (finding that a declaratory judgment action is an appropriate vehicle to challenge a legislative decision such as the validity of an ordinance).
Indiana Code 34-14-1-2 provides: Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder.
ILC responds that filing such a declaratory judgment action would have been "futile," but without providing further explanation, and we can think of no good justification for not having done so. The purpose of a declaratory judgment suit is to "determine any question of construction or validity arising under the . . . statute." Immediately after the Council's April 17, 2000 meeting, ILC could have, and we think perhaps should have, petitioned a state court to determine the validity of the Two-Thirds Ordinance as interpreted under Indiana Code §§ 36-4-6-12 (stating that a city may not require a greater than majority vote unless the same is required by statute) and 36-4-6-1 l(a) (defining "majority vote" as "at least a majority vote of all the elected members"). That ILC received conflicting advice and opted simply to file a second petition for annexation and rezoning with the Plan Commission, which was subsequently rejected by the Council, does not make the available process inadequate. While it is true, as ILC contends, that a plaintiff is not required to exhaust state remedies before bringing a § 1983 claim, this principle does not apply where no due process violation has occurred because adequate state remedies exist.Veterans Legal Defense Fund v. Schwartz, 330 F.3d 937, 941 (7th Cir. 2003). Therefore, we GRANT the City's Motion for Summary Judgment on ILC's procedural due process claim.
We interpret ILC's argument as challenging the procedure by which the Council made its annexation and zoning decision, the application of the Two-Thirds Ordinance to ILC's petition, but not the substantive annexation and zoning decision itself. As discussed above, a declaratory judgment action would have been the appropriate method by which to appeal the Council's application of the Two-Thirds Ordinance to ILC's petition. To the extent that ILC also contends that it was entitled to an annexation and zoning decision in its favor, however, separate state statutes provide for the appeal of a municipality's substantive annexation and zoning decisions.
The state statutes enabling a party to appeal a municipality's annexation decision have been revised since 2000, the year in which the Council denied ILC's annexation petition. In 2000, Section 36-4-3-5(b) of the Indiana Code allowed state judicial review of a legislative body's failure to pass an annexation ordinance. Section 36-4-3-5(b) provided in relevant part:
[I]f the legislative body fails to pass the ordinance within sixty (60) days after the date of filing of a petition under subsection (a), the petitioners may file a duplicate copy of the petition in the circuit or superior court of a county in which the territory is located, and shall include a written statement of why the annexation should take place.
ILC argues that § 36-4-3-5(b) would not have applied to ILC because the Council did not fail to act on the ordinance. However, ILC does not provide any support for its strained interpretation of the statutory language "fails to pass" to mean only "fails to act." The statute says "fails to pass" not "fails to pass on." In the absence of any Indiana case interpreting this language, we read the plain language of § 36-4-3-5(b) to encompass both a legislative body's failure to act on as well as its failure to pass, i.e., its denial of, a municipal ordinance.
ILC further contends that, even if judicial review in state court of the Council's failure to pass on its annexation petition is available under § 36-4-3-5(b), the process afforded by § 36-4-3-5(c) was inadequate. Section 36-4-3-5(c) established the procedures for judicial review of an annexation petition as well as the statutory requirements that a plaintiff must satisfy in order to qualify for court-ordered annexation. ILC admits that it did not meet these requirements. Process is not constitutionally inadequate, however, merely because the remedy provided does not afford plaintiff a winning result. See, e.g., White v. Peters, 990 F.2d 338, 342 (7th Cir. 1993) ("[T]he pertinent question is not whether the state court would be inclined to rule in the petitioner's favor, but whether there is any available state procedure for determining the merits of petitioner's claim").
While the Indiana Code allows a direct appeal to state court of a municipality's annexation decision under certain circumstances, it does not provide for a direct appeal of any municipal legislative body's specific zoning decision. See Ind. Code § 36-7-4-608(g)(3) ("If a legislative body rejects the [zoning] proposal, it is defeated"); § 34-13-6-1 (requiring that an appeal under the general procedure for appealing any action or decision of a city's legislative body performing the function of a board be "allowed by statute"). Despite the unavailability of a direct appeal to state court of a municipality's zoning decision, a declaratory judgment suit is an appropriate forum in which to challenge the validity of a zoning ordinance. Stokes v. City of Mishawaka, 441 N.E.2d 24, 26 (Ind.App. 1983). As we have described, however, ILC failed to file a declaratory judgment action in this case.
Substantive Due Process
The Seventh Circuit has repeatedly cautioned plaintiffs that "[f]ederal courts are not boards of zoning appeals." E.g., River Park. Inc. v. City of Highland Park, 23 F.3d 164, 165 (7th Cir. 1994). A municipality's zoning or annexation action does not rise to the level of a substantive due process violation merely because it may violate state law. Rather, a plaintiff must show (1) that the zoning or annexation decision was arbitrary and irrational in the constitutional sense, and (2) either that a separate constitutional violation occurred or that state law remedies were inadequate. Hartland Sportsman's Club. Inc. v. Town of Delafield, 35 F.3d 1198, 1202 (7th Cir. 1994) (quoting Polenz v. Parrott, 883 F.2d 551, 558-59 (7th Cir. 1989)). Because we have concluded that the state law remedies were adequate in this case, ILC must show (1) that the zoning or annexation decision was arbitrary and irrational in the constitutional sense and (2) that a separate constitutional violation occurred.
The Council's substantive zoning or annexation decision was not arbitrary and irrational in the constitutional sense. See City of Cuyahoga Falls. Ohio v. Buckeye Community Hope Foundation 123 S.Ct. 1389, 1396 (2003) (noting that the Supreme Court's evaluations of "abusive executive action" have held that "only the most egregious official conduct can be said to be `arbitrary in the constitutional sense'"); Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 467 (7th Cir. 1988) (defining "arbitrary and unreasonable" to mean "invidious or irrational"). In Harding v. County of Door, 870 F.2d 430 (7th Cir. 1989), the plaintiff, like ILC, brought a § 1983 action alleging a violation of substantive due process on the ground that the Door County Board of Adjustment's zoning decision was irrational because it lacked authority under Wisconsin law. However, the district court and the Seventh Circuit rejected plaintiffs argument: "[t]his case presents a garden-variety zoning dispute dressed up in the trappings of constitutional law-a sure sign of masquerading being that the plaintiffs do not challenge the constitutionality of the zoning ordinances . . . but argue rather that the Board of Trustees had no authority under those ordinances to reject their site plan once the Village Plan Commission had approved it." Id. at 431. Here, too, ILC does not challenge the constitutionality of the Two-Thirds Ordinance; it argues only that it was illegal under Indiana law and that the Council had no authority under the Two-Thirds Ordinance to reject its proposed PUD. PL's Memo, in Opp. to Def.'s Mot. for Summ. J. (PL's Memo.) 1-2; 8-13.
The City contends that, although the Council's decision to apply the Two-Thirds Ordinance may have been erroneous, an erroneous decision is not, without more, irrational. Harding, 870 F.2d at 432. We concur. The Council went against the City Attorney's recommendation, but not without significant discussion of the issue and some justification for its conclusion. Reasons that Council members offered for applying the Two-Thirds Ordinance to ILC include: (1) the public would perceive overturning the local Two-Thirds Ordinance in favor of a state statute benefitting ILC as "a railroad job," (2) the state statute providing for the passage of local ordinances by majority vote may be viewed as permissive rather than mandatory, (3) the Council must treat its local constituency consistently and according to the laws as they stand on the books, and therefore, must uphold a local ordinance in conflict with a state statute, and (4) other attorneys consulted by Council members offered legal opinions supporting application of the Two-Thirds Ordinance. Pl.'s Designation Tender of Evid., Ex. 13, at pp. 6, 11-12, 15, 19. Following the vote to apply the Two-Thirds Ordinance to ILC's petition, the Council later voted to amend the Two-Thirds Ordinance to comply with the state statute to avoid this conflict in the future. "[T]hat town officials are motivated by parochial views of local interests which work against plaintiff['s] plan and which may contravene state . . . laws" does not state a claim of denial of substantive due process. Coniston Corp., 844 F.2d at 467 (quoting Creative Environments. Inc. v. Estabrook, 680 F.2d 822, 833 (1st Cir. 1982)).
We conclude that while the Council likely erred in applying the Two-Thirds Ordinance to ILC's petition, it did not act arbitrarily or irrationally in the constitutional sense. In addition, as we discuss below, ILC cannot demonstrate that a separate constitutional violation occurred. Therefore, as ILC has not stated a claim for denial of substantive due process, we GRANT the City's Motion for Summary Judgment as to that claim.
Equal Protection
ILC asserts that the City violated the Equal Protection Clause of the Fourteenth Amendment by intentionally treating ILC differently than "any other petitioner in the State of Indiana." PL's Memo, at 13. ILC is proceeding under a "class of one" equal protection theory recognized inVillage of Willowbrook v. Olech, 528 U.S. 562 (2000). Under this theory, ILC must show that they were (1) "intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment," or (2) "that the government is treating unequally those individuals who are prima facie identical in all relevant respects, and that the cause of the differential treatment is a `totally illegitimate animus toward the plaintiff by the defendant.'" Nevel v. Village of Schaumburg, 297 F.3d 673, 681 (7th Cir. 2002). ILC concedes that the second possible showing does not apply to this case, so we focus on the first. Absent a fundamental right or a suspect class, neither of which is at issue here, to state a "viable equal protection claim in the land-use context, the plaintiff must demonstrate `governmental action wholly impossible to relate to legitimate governmental objectives.'" This is a very substantial burden. Discovery House. Inc. v. Consolidated City of Indianapolis, 319 F.3d 277, 283 (7th Cir. 2003).
ILC contends that it was treated less favorably by the Council than any similarly situated applicant. In 1997, the Planning Commission sent a favorable recommendation of the allegedly similarly situated applicant's annexation and rezoning request to the Council, which overrode the Planning Commission's recommendation by a simple majority vote. At that time, the Council did not invoke the Two-Thirds Ordinance. Although ILC makes much of the fact that the Council invoked the Two-Thirds Ordinance against its petition, but not against the 1997 applicant's petition, the City correctly argues that ILC does not present any evidence to show that the Council, or any individual member, was motivated by discriminatory intent in applying the Two-Thirds Ordinance to ILC in 2000. See Discovery House, 319 F.3d at 283. These two incidents presented in isolation do not demonstrate discriminatory intent. For example, a rational basis for the difference in treatment may have been that the 1997 Council was not aware of the Two-Thirds Ordinance at the time that it evaluated the 1997 applicant's petition.
We agree as well with the City that ILC has not presented sufficient evidence to show that the 1997 applicant was similarly situated to ILC. First, the 1997 applicant had its annexation and zoning request considered by a different and previous Council with the guidance of a different City Attorney. Further, the procedural postures of the 1997 applicant's request and ILC's request were slightly different: in the 1997 applicant's case, the Council voted 4-3 to overturn a favorable recommendation of the Plan Commission, whereas in ILC's case, the Council voted 4-3 to overturn an unfavorable recommendation of the Plan Commission. See Purze v. Village of Winthrop Harbor, 286 F.3d 452, 455 (7th Cir. 2002) ("the allegedly similarly-situated individuals in this case requested different variances than the [plaintiffs] requested; submitted their plats during different time periods; and had their plat requests granted by different and previous Boards").
In sum, we conclude that ILC has not satisfied its substantial burden to demonstrate that the City intentionally treated ILC differently from others similarly situated and that there was no rational basis for the difference in treatment. Therefore, we GRANT the City's Motion for Summary Judgment on ILC's equal protection claim.
Conclusion
For the reasons stated above we conclude that: (1) with regard to procedural due process, assuming the City deprived ILC of a Constitutionally-protected property interest, adequate state remedies exist; (2) with regard to substantive due process, the Council's decision to apply the Two-Thirds Ordinance to ILC's petition was not arbitrary and irrational in the constitutional sense; and (3) with regard to equal protection, ILC did not establish that it was intentionally treated differently from others similarly situated and that there was no rational basis for the difference in treatment. The City, therefore, did not deprive ILC of any right, privilege or immunity secured by the Constitution in violation of 42 U.S.C. § 1983, and so we GRANT the City's Motion for Summary Judgment as to all claims.
It is so ORDERED.