Judges: Wood
Filed: Aug. 24, 2016
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 15-3818 BLACK EARTH MEAT MARKET, LLC, et al., Plaintiffs-Appellants, v. VILLAGE OF BLACK EARTH, et al., Defendants-Appellees. _ Appeal from the United States District Court for the Western District of Wisconsin. No. 3:14-cv-00674-bbc — Barbara B. Crabb, Judge. _ ARGUED JUNE 1, 2016 — DECIDED AUGUST 24, 2016 _ Before WOOD, Chief Judge, and BAUER and FLAUM, Circuit Judges. WOOD, Chief Judge. Roughly 90 miles west of Milwaukee lies
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 15-3818 BLACK EARTH MEAT MARKET, LLC, et al., Plaintiffs-Appellants, v. VILLAGE OF BLACK EARTH, et al., Defendants-Appellees. _ Appeal from the United States District Court for the Western District of Wisconsin. No. 3:14-cv-00674-bbc — Barbara B. Crabb, Judge. _ ARGUED JUNE 1, 2016 — DECIDED AUGUST 24, 2016 _ Before WOOD, Chief Judge, and BAUER and FLAUM, Circuit Judges. WOOD, Chief Judge. Roughly 90 miles west of Milwaukee lies ..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐3818
BLACK EARTH MEAT MARKET, LLC, et al.,
Plaintiffs‐Appellants,
v.
VILLAGE OF BLACK EARTH, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:14‐cv‐00674‐bbc — Barbara B. Crabb, Judge.
____________________
ARGUED JUNE 1, 2016 — DECIDED AUGUST 24, 2016
____________________
Before WOOD, Chief Judge, and BAUER and FLAUM, Circuit
Judges.
WOOD, Chief Judge. Roughly 90 miles west of Milwaukee
lies the small town of Black Earth, Wisconsin. For years, a
butcher shop operated on the plot located at 1345 Mills Street.
While the property is not zoned for slaughtering livestock, the
activity had long been permitted as a legal nonconforming
use. In 2001, Black Earth Meats (BEM) purchased the prop‐
erty. Sometime after 2009, the volume and frequency of
2 No. 15‐3818
slaughter increased. By 2011, neighbors were complaining
about increased traffic, delivery trucks blocking the road, live‐
stock noise, foul odors, improper storage of animal parts, and
the presence of offal, blood, and animal waste in the streets.
Steers escaped from the facility on three occasions; each time,
a posse had to hunt the fugitive bovine through the streets of
Black Earth and, ultimately, shoot it dead.
In 2013, the Village trustees decided to do something
about the renegade slaughterhouse. It increased enforcement
of Village regulations, ordered BEM to propose an acceptable
plan for relocating its slaughter activities, held several public
meetings, and in July 2014, threatened litigation. As a result
of the Village’s threat of litigation, the U.S. Department of Ag‐
riculture (USDA) refused to guarantee a loan to BEM from the
Bank of New Glarus. Shortly afterwards, BEM lost its financ‐
ing, closed, and then sued the Village and the members of its
Board. The district court granted summary judgment to the
defendants. BEM appeals, and we affirm.
I
In 2001, Black Earth Meats purchased the property located
at 1345 Mills Street, in the Village of Black Earth, Wisconsin.
For the previous 60 years, the plot had been used as a slaugh‐
terhouse and retail butcher shop. While the land was zoned
as “B‐1 General Commercial”—a designation that did not al‐
low the operation of a slaughterhouse—BEM’s slaughtering
operation constituted a legal nonconforming use and thus
was permitted under the zoning law in effect at the time.
BEM’s current owner, Kemper Durand, Jr., acquired the com‐
pany and property in 2008.
No. 15‐3818 3
About a year after Durand acquired the property, the
slaughter operations increased in both volume and frequency.
This led to a crescendo in complaints from the neighbors. In
response to these complaints, the Village hired Vierbicher As‐
sociates, an engineering and land‐use consulting firm, to in‐
vestigate and report on the effects of the BEM facility.
Vierbicher delivered its report to the Village on January 27,
2011. The report found that BEM’s slaughter operation was
responsible for “[i]ncreased truck traffic on local residential
streets”; “[i]ncreased noise due to trucks and slaughter oper‐
ations on the premises”; “[o]ffal runoff from the property
that goes into storm sewers and adjacent properties”;
“[f]lies and other vermin due to offal runoff and outdoor
storage of animal waste that is not promptly removed
from the property”; and “[a]nimals escaping from the prop‐
erty.” The report concluded that BEM could “continue opera‐
tion in its current location, but must do so within the con‐
straints of Village ordinances. If further complaints are made
to the Village and found to be of merit, abatement actions
and/or fines may be in order.”
Neighbors continued in 2012 to lodge the same kinds of
complaints about the effects of BEM’s slaughterhouse opera‐
tions. And their complaints were heard: the Village President,
Patrick Troge, wrote a letter to BEM warning that if the prob‐
lems continued, the Village would take action, potentially in‐
cluding a nuisance abatement action or fines.
On May 2, 2012, a Red Angus steer escaped from BEM
and was pursued by 12 BEM employees, one of them armed
with a rifle, through the village. Three Dane County deputies
eventually arrived on scene and cornered the animal. The
showdown ended in a hail of gunfire; after the deputies
4 No. 15‐3818
pumped six shotgun slugs, seven rounds from an M16, and
three .22 rifle rounds into the steer, it fell dead in the streets of
Black Earth. This was not the first renegade beast cut down in
the Village: steers had escaped from BEM on two previous oc‐
casions since 2009. Each fugitive had occasioned a similar re‐
sponse, and met a similar end.
In the meantime, Durand was looking for new financing
for BEM’s operations. In 2013, after a search lasting more than
a year, Durand approached the Bank of New Glarus. New
Glarus agreed to loan BEM approximately $1.3 million. But
the loan came with strings: BEM was required to raise
$525,000 on its own, and to obtain a loan guarantee from the
USDA’s Office of Rural Development. The USDA guarantee
would cover 80 percent of the loan amount. While he initially
opposed the loan guarantee condition, Durand eventually ac‐
quiesced; he finalized the loan agreement in August 2013. The
USDA provided New Glarus with a “conditional commit‐
ment,” which would convert into the required loan guarantee
upon the meeting of certain prerequisites. One of those pre‐
requisites was a certification that there were “[n]o ... suits ...
pending or threatened that would adversely affect the collat‐
eral when the security instruments are filed.” Similarly, BEM
was required to certify that “there are no actions, suits or pro‐
ceedings pending or, to the knowledge of the [B]or‐
rower/guarantors, threatened against the Borrower/guaran‐
tors that may result in any material adverse change in the
business operations ... of the Borrower/guarantors.”
The complaints about BEM continued unabated through‐
out 2013. (Over the course of the year, BEM was the cause of
40 requests for police service.) On July 10, 2013, the Village
No. 15‐3818 5
trustees met with the Village’s attorney to discuss BEM’s ordi‐
nance violations and potential zoning issues. At first, the trus‐
tees considered drafting or amending ordinances specifically
addressed at BEM. They ultimately rejected this course of ac‐
tion out of concern about the propriety of addressing ordi‐
nances toward one specific business. Instead, they decided
that the Village should do more to enforce the already‐exist‐
ing ordinances they believed BEM was violating. At the Vil‐
lage police committee meeting the following week, the trus‐
tees delivered their message to local law enforcement offi‐
cials.
As a result of the increased enforcement, BEM received
nine citations between October 1, 2013, and January 3, 2014.
The citations had no effect on BEM’s behavior, however, and
the complaints continued. On December 10, 2013, the Village
Board held a public meeting “regarding nuisance and zoning
violations associated with Black Earth Meats.” The agenda in‐
cluded time for remarks by law enforcement, the Village’s
building inspector, a BEM representative, and the public. The
agenda also advised that the trustees would discuss and vote
on a “strategy to be adopted by the [Village] with respect to
litigation in which it is or likely to become involved regarding
[BEM].” Notice of the meeting was published. Durand spoke
on behalf of BEM. At the conclusion of the meeting, the trus‐
tees passed a motion giving BEM 120 days to present an ac‐
ceptable plan for relocating its slaughter operation. If BEM
failed to meet that deadline, it said, the Village would “take
legal action to remove the slaughter operation.”
Troge sent the promised notice to BEM the following day.
His letter noted that BEM’s slaughter operation had “in‐
creased to such a degree that it is now a much more intensive
6 No. 15‐3818
commercial slaughtering operation” and had become a “nui‐
sance.” It directed BEM to relocate within a reasonable period
and advised that if BEM failed to present an acceptable plan
for doing so within 120 days, the Village “intend[ed] to com‐
mence legal action to abate the nuisance and secure a court
order enjoining slaughter operations.”
On December 23, 2013, BEM responded to Troge’s letter
with a notice of claim. The notice alleged that “as a direct re‐
sult of the Village’s Complaints, Citations, Resolutions and
Statements,” the USDA had refused to guarantee a loan from
the Bank of New Glarus to BEM. It noted that without the
guarantee, it might not be able to obtain the loan from New
Glarus, which would in turn affect its financing. The Village
denied the claim on January 7, 2014.
The Village then extended BEM’s deadline for presenting
its relocation plan. The plan was supposed to be presented at
a Board meeting held on June 26, 2014, at the conclusion of
the extended time period. Instead of the requested plan, how‐
ever, BEM presented a consultant’s report detailing four op‐
tions for mitigating the problems its slaughtering created.
Only one of those options involved relocating the operation
to a new facility. The trustees took no action at the meeting.
The Board held another meeting one week later. Appear‐
ing as BEM’s representative, Durand informed the trustees of
the financing problems BEM had experienced because of the
Board’s December 10, 2013 motion. He explained that BEM
needed the New Glarus loan to continue operating, and that
if the Board did not pass another motion authorizing slaugh‐
ter at the location, the loan would not be forthcoming. He
asked the Board to pass a motion he had prepared. The pro‐
posed motion declared that slaughter was “permitted at the
No. 15‐3818 7
[BEM] facility as a legal, nonconforming use”; that it “shall be
permitted to continue”; and that BEM’s “normal operation ...
is not a public nuisance.” Troge advised Durand that the
Board could not vote on Durand’s motion until the Village’s
lawyer reviewed it. The plaintiffs, Durand and BEM, filed this
lawsuit that day.
A week later, the Village held another meeting to discuss
its “strategy ... with respect to litigation” regarding BEM. Du‐
rand was present and was offered the chance to speak, but he
declined. After the public portion of the meeting, the Board
went into a closed session. When they returned, the trustees
passed a motion “to authorize and direct the Village attorney
to take necessary legal action to eliminate any public nuisance
and complaints” regarding BEM. On July 21, 2014, the Bank
of New Glarus told Durand that it would no longer offer him
the previously discussed loan. Although the Bank did pro‐
vide BEM short‐term financing, BEM was forced to end its
slaughter operations. By August 4, 2015, BEM had closed and
listed its facility for sale.
BEM’s lawsuit continued. At the end of discovery, the par‐
ties filed cross‐motions for summary judgment. The district
court granted summary judgment to the defendants on BEM’s
procedural due process and equal protection claims, dis‐
missed BEM’s takings claims as unripe, and remanded BEM’s
state‐law claims to the Circuit Court for Dane County, Wis‐
consin. BEM timely appealed the district court’s dismissal of
its procedural due process and equal protection claims, to
which we now turn.
8 No. 15‐3818
II
We review the district court’s rulings on summary judg‐
ment de novo. Advance Cable Co., LLC v. Cincinnati Ins. Co., 788
F.3d 743, 746 (7th Cir. 2015). Because the parties submitted
cross‐motions for summary judgment, we take the motions
one at a time, construing all facts and drawing all reasonable
inferences in favor of the non‐moving party. Id. Summary
judgment is appropriate when there is no dispute of material
fact, and the moving party is entitled to judgment as a matter
of law. FED. R. CIV. P. 56(a).
A
Although our appellate jurisdiction is secure, we have no‐
ticed a question about the district court’s jurisdiction that we
must address. Wisconsin Central, Ltd. v. Shannon, 539 F.3d 751,
759 (7th Cir. 2008) (internal citations omitted). It relates to the
risk that BEM’s procedural due process claims are not yet ripe,
and if not, fall outside the permissible scope of the court’s Ar‐
ticle III power.
1
Under Williamson County Regional Planning Commission v.
Hamilton Bank of Johnson City, 473 U.S. 172 (1985), if a state
provides adequate procedures for seeking just compensation,
a property owner cannot state a takings claim in federal court
until she has used these procedures and been denied just com‐
pensation. Wisconsin provides an inverse condemnation pro‐
cedure by which a property owner may seek just compensa‐
tion by initiating condemnation proceedings. See WIS. STAT.
ANN. § 32.10. BEM has not availed itself of this procedure. If
its procedural due process claims are takings claims, they are
unripe.
No. 15‐3818 9
We have construed Williamson broadly, holding that “[a]
property owner may not avoid Williamson by applying the la‐
bel ‘[procedural] due process’ to the claim.” Forseth v. Vill. of
Sussex, 199 F.3d 363, 368 (7th Cir. 2000) (internal quotation
mark omitted). There do exist bona fide non‐takings claims
“arising from land‐use decisions” that “can be made inde‐
pendently from a takings claim and without being subject to
Williamson ripeness.” Id. at 370 (referring to equal protection
claims). But labels are irrelevant: “[a] person contending that
state or local regulation of the use of land has gone overboard
must repair to state court.” Id. at 368 (internal quotation mark
omitted). The question is thus whether BEM’s procedural due
process claims are really takings claims in disguise—in this
case, regulatory takings. If so, they are not ripe.
The parties do not dispute the existence of four interests
protected by procedural due process: (1) a liberty interest in
the occupation of slaughter; (2) a property interest in the non‐
conforming use; (3) the right to use the property for a slaugh‐
terhouse purpose; and (4) the plaintiff’s interest in its financ‐
ing agreement with New Glarus. Because the second and
third give rise to archetypal takings claims, BEM’s due process
claims with regard to those interests are not ripe.
There is some question whether BEM’s remaining claims
are properly understood as takings claims. BEM’s briefs can
be read to suggest as much. With regard to the New Glarus
financing and its liberty interest in the occupation of slaugh‐
ter, BEM’s claim is essentially that the Board achieved ends it
could have obtained through zoning with the threat of litiga‐
tion. Instead of rezoning the property and actually executing
a taking, the Village threatened to sue. This was an action that,
because of BEM’s financing needs, indirectly deprived BEM
10 No. 15‐3818
of financing and forced it to shut down. If the Village could
have achieved the same result through an actual taking, the
most logical response might be to see if a state court would
construe it retroactively as a taking, provide or decline to pro‐
vide compensation, and thereby provide all the process that
was due. If BEM still had complaints when that process was
over, it could then sue under 42 U.S.C. § 1983 and its claims
would be ripe.
But BEM’s financing agreement with New Glarus and its
liberty interest in slaughter both represent interests independ‐
ent of the property itself. We think that they may be properly
construed as (non‐takings) procedural due process claims,
and therefore as ripe. We thus proceed to the merits.
2
In determining whether a deprivation of procedural due
process has taken place, we ask two questions: first, whether
the plaintiff has been deprived of a protected liberty or prop‐
erty interest; second, if so, whether the deprivation occurred
without due process. Pro’s Sports Bar & Grill, Inc. v. City of
Country Club Hills, 589 F.3d 865, 870 (7th Cir. 2009). BEM has
asserted two interests whose alleged deprivation, if protected,
would support a claim: (1) a liberty interest in the occupation
of slaughter, and (2) its interest in its financing agreement
with New Glarus. The defendants do not dispute that these
interests are cognizable under the due process clause of the
Fourteenth Amendment. Instead, the parties disagree
whether any action by the Village actually deprived BEM of
those protected interests. BEM points to four events that it be‐
lieves qualify as a deprivation: (1) the December 10, 2013 mo‐
tion; (2) the December 11, 2013 letter; (3) the failure to adopt
Durand’s motion; and (4) the July 10, 2014 motion.
No. 15‐3818 11
BEM’s theory suffers from several fatal flaws. First, none
of these actions was more than a threat of litigation—that is,
notice that the Village intended to seek enforcement of its
rights. Contrary to BEM’s contention, nothing the Village did
actually forbade slaughter, and in not passing Durand’s mo‐
tion, the Board merely declined to adopt his legal position. We
are hard‐pressed to imagine when notice itself can be consid‐
ered a deprivation of due process, and this is certainly not such
a case.
In Hussein v. City of Perrysburg, the Sixth Circuit held that
where “a state official states his view that a citizen’s actions
are in violation of the law and threatens litigation, this is not
a deprivation of the citizen’s interest without notice and an
opportunity to be heard.” 617 F.3d 828, 832 (6th Cir. 2010). In‐
stead, the official’s statement is the “provision of notice.” Id.
The ensuing litigation is the opportunity to be heard. Id. Proce‐
dural due process does not “demand notice as a precondition
of notice.” Id. A contrary holding would “impose recursively
impossible demands upon state officials who seek to enforce
the law.” Id.
We find this logic sound. In general, a threat to sue cannot
qualify as a deprivation of procedural due process. If the ac‐
tual abatement of a nuisance is not a deprivation of due pro‐
cess, mere notice that a governmental actor will pursue a nui‐
sance action in an adversary proceeding cannot constitute a
due process violation. See Pierce v. Vill. of Divernon, Ill., 17 F.3d
1074, 1080 (7th Cir. 1994) (demolition of partially destroyed
home pursuant to ex parte order not violation of due process
where municipality gave owners “ample notice and oppor‐
tunity to abate the nuisance”).
12 No. 15‐3818
To state a claim against a municipality under section 1983,
“a plaintiff must show that the municipal action was taken
with the requisite degree of culpability and must demonstrate
a direct causal link between the municipal action and the dep‐
rivation of federal rights.” Bd. of Cnty. Comm’rs of Bryan Cnty.,
Okl. v. Brown, 520 U.S. 397, 404 (1997). There is no such direct
causal link here. There were four steps between the Village’s
threat of litigation and all the deprivations except BEM’s in‐
terest in its financing agreement with New Glarus. The pur‐
ported deprivation of BEM’s right to engage in slaughter was
a result of the fact that BEM had to shut down. BEM shut
down because (1) it needed financing; (2) the only financing it
could get depended upon a guarantee; (3) USDA was the
guarantor (and apparently no other guarantor was on the
horizon); and (4) the USDA guarantee depended on BEM’s not
being subject to impending litigation. Even the loss of the loan
from New Glarus depended on three intermediate causal
steps: (1) the New Glarus agreement required a guarantee; (2)
the USDA was the guarantor; and (3) the USDA guarantee de‐
pended on BEM’s being free from impending litigation.
BEM argues that Reed v. Village of Shorewood, 704 F.2d 943,
949 (7th Cir. 1983), stands for the principle that “a municipal‐
ity is responsible for the indirect results that flow from its di‐
rect actions.” That overstates the case; indirect effects can rip‐
ple out quite a long way, and the law does not hold munici‐
palities responsible for all of them. Reed in particular does not
support the idea that a municipality is responsible for the
kind of downstream effects alleged in this case. Reed held that
even though the municipal defendant did not directly revoke
the plaintiffs’ liquor license, it could deprive them of it
“through harassment of customers and employees and relent‐
less, baseless prosecutions,” thereby “destroy[ing] the value
No. 15‐3818 13
of [their] licensed business and forc[ing] them ultimately to
give up their Class A license.” Id. Harassment and baseless
prosecutions can be a direct cause of the loss of a liquor li‐
cense; the threat of litigation and the loss of one loan may or
may not lead to the decision to shut down a business. Moreo‐
ver, Reed’s logic depended upon an analogy to regulatory tak‐
ings, see id., and that is not BEM’s theory.
BEM points us to Baer v. City of Wauwatosa, 716 F.2d 1117
(7th Cir. 1983), but it is similarly inapposite. The municipality
in Baer had a loophole that allowed gun shops to operate with‐
out a license. Id. at 1121–22. As a result, the municipality’s rev‐
ocation of the plaintiff’s gun license did not cause him to lose
his business. But the municipality then repealed the loophole
and refused to issue the plaintiff a new license. Together, the
municipality’s three actions—revoking the license, repealing
the loophole, and then refusing to issue a new license—di‐
rectly deprived the plaintiff of his gun business. Id. Signifi‐
cantly, we held there that both the revocation and the repeal
had to be wrongful for the plaintiff to state a procedural due
process claim. Id. at 1121. BEM’s citation to Martinez v. Califor‐
nia, 444 U.S. 277, 284 (1980), which held that a parole officer
who released a prisoner who killed someone five months later
did not “deprive” the victim of life for Fourteenth Amend‐
ment purposes, is unhelpful to its cause; if anything, it sup‐
ports the Village.
Finally, Backpage.com, LLC v. Dart, 807 F.3d 229, 230 (7th
Cir. 2015) represents an intriguing but ultimately faulty anal‐
ogy. In Backpage.com, we held that Sheriff Dart’s “campaign of
starving [Backpage] by pressuring credit card companies to
cut ties with its website” violated the First Amendment (not
the Due Process Clause). Id. “The First Amendment,” it noted,
14 No. 15‐3818
“forbids a public official to attempt to suppress the protected
speech of private persons by threatening that legal sanctions
will at his urging be imposed unless there is compliance with
his demands.” Id. at 231. It is less clear that the Due Process
Clause does so. The First Amendment is concerned with the
chilling effect government action may have on speech; proce‐
dural due process is not. Moreover, in this case, the Village
threatened only to litigate, not to impose sanctions solely
within its power. And surely BEM does not contend that the
Due Process Clause forbade the Village from suing to abate a
nuisance; an actual lawsuit would have had the same effect
on BEM’s protected interests as the threat of one.
Even if the threat of litigation could in itself constitute a
violation of due process and were a sufficiently direct cause
of BEM’s alleged deprivations, there is no reason to think that
the process accorded to BEM was inadequate. Procedural due
process generally requires only “notice and an opportunity to
be heard.” Dusenbery v. United States, 534 U.S. 161, 167 (2002)
(internal quotation marks omitted). “Cities may elect to make
zoning decisions through the political process ... with no hear‐
ings of any kind.” River Park, Inc. v. City of Highland Park, 23
F.3d 164, 166 (7th Cir. 1994). Here, the Village did not even
make a zoning decision. Even if it had, BEM received notice
and a hearing at every turn. It received notice for every rele‐
vant Board meeting. Durand spoke at the December 10, 2013
meeting. Durand spoke at length in support of his motion at
the July 2, 2014 meeting. Durand was given the opportunity
to speak at the July 10, 2014 meeting; he declined to do so. The
question arises what other process the Village could have pro‐
vided before stating its intention to pursue enforcement of le‐
gal rights.
No. 15‐3818 15
BEM’s attempt to answer that question is largely nonsen‐
sical. The only additional process it identifies seems to be
more specific notice. (It treats the December 10 and July 10
motions as notice; that concession disposes of any claims that
these motions constituted an official deprivation.) It contends
that the “language of the Motions do [sic] not inform” BEM
“that they have an opportunity to object nor does it include
any information relating to specifics of the plan that must be
presented in order to avoid such ‘legal action.’” It also con‐
tends that there was “no clear indication of what ‘legal action’
[would] be taken.” But the record leaves no doubt that BEM
knew it had the opportunity to object: it did so at several
meetings. It presented alternate motions. And the Village
stated clearly what legal action it intended to take: an action
for nuisance abatement. Even if BEM had a protected right at
stake, the process the Village used met constitutional stand‐
ards.
B
BEM’s last hurrah is a “class of one” equal protection
claim. In order to proceed, it must show that it was “inten‐
tionally treated differently from others similarly situated and
that there is no rational basis for the difference in treatment.”
Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per cu‐
riam). BEM argues that where official action is motivated only
by “sheer malice, vindictiveness, or malignant animosity,” the
victim states an equal protection claim and is not required to
provide evidence of a better‐treated comparator. Fenje v. Feld,
398 F.3d 620, 628 (7th Cir. 2005) (internal quotation marks
omitted); Hilton v. City of Wheeling, 209 F.3d 1005, 1008 (7th
Cir. 2000) (so‐called “vindictive action” equal protection cases
16 No. 15‐3818
require proof of “a totally illegitimate animus toward the
plaintiff by the defendant”).
The law on that point is up in the air, see Del Marcelle v.
Brown Cnty. Corp., 680 F.3d 887 (7th Cir. 2012) (en banc), but we
can assume for present purposes that BEM’s position is cor‐
rect. As the Supreme Court noted in Olech, “the purpose of
the equal protection clause of the Fourteenth Amendment is
to secure every person within the State’s jurisdiction against
intentional and arbitrary discrimination.” 528 U.S. at 564 (in‐
ternal quotation marks omitted). If a plaintiff can show that it
was a victim of intentional and arbitrary discrimination
through direct evidence, there is no reason it should be forced
to jump through additional evidentiary hoops. See Swanson v.
City of Chetek, 719 F.3d 780, 784 (7th Cir. 2013) (“If animus is
readily obvious, it seems redundant to require that the plain‐
tiff show disparate treatment in a near exact, one‐to‐one com‐
parison to another individual.”).
BEM’s problem is that there is no evidence of animus in
this case. While the Village trustees made no secret of their
intent to force BEM to move its slaughterhouse operations
(and were happy once it shut down), there is no evidence that
they were motivated by malice or animosity. They were re‐
sponding to a drumbeat of complaints from BEM’s neighbors
about increased traffic, delivery trucks blocking the road, live‐
stock noise, foul odors, improper storage of animal parts, and
offal runoff, blood, and animal waste in the streets. They re‐
sponded more forcefully from 2011 onward to BEM than they
had in the past because BEM’s new owner significantly in‐
creased slaughter activities. In directing deputies to “feel free
to write a citation” if they “s[aw] a violation,” the trustees
No. 15‐3818 17
were at most building a record in anticipation of a nuisance
abatement suit.
As a result, although the Village pursued a campaign
against continued slaughter activities by BEM at its current
location, it had a rational basis for doing so. See Geinosky v.
City of Chicago, 675 F.3d 743, 747 (7th Cir. 2012) (class‐of‐one
equal protection claim requires that state actor has no rational
basis for singling out plaintiff). It was BEM’s burden “to elim‐
inate any reasonably conceivable state of facts that could pro‐
vide a rational basis for the classification.” D.B. ex rel. Kurtis
B. v. Kopp, 725 F.3d 681, 686 (7th Cir. 2013) (citations omitted).
It has failed to do so.
Lastly, BEM has not suggested a sufficiently similar com‐
parator. It needed to find someone (or something) that shared
with it all the principal, pertinent characteristics. Swanson, 719
F.3d at 784. BEM offers David W. Heiney’s, a restaurant and
bar, but Heiney’s does not fit the bill. The tavern was not re‐
sponsible for livestock noise, foul odors, improper storage of
animal parts, and offal runoff, blood, and animal waste in the
streets (let alone half‐ton, horned desperadoes). There is no
evidence that the Village received complaints from neighbors
of Heiney’s in any way similar to those it received about BEM.
That provides an independent reason to reject the equal pro‐
tection theory.
III
The district court correctly granted summary judgment to
the defendants on BEM’s procedural due process and its equal
protection claims. We therefore AFFIRM its judgment.