Reget v. City of La Crosse

• Decision Date: 08 February 2010
• Docket Number: No. 06-1621.,06-1621.
• Citation: 595 F.3d 691
• Parties: John G. REGET, Plaintiff-Appellant, v. CITY OF LA CROSSE, John Medinger, Larry Kirch, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

595 F.3d 691

John G. REGET, Plaintiff-Appellant, v. CITY OF LA CROSSE, John Medinger, Larry Kirch, et al., Defendants-Appellees.

No. 06-1621.

United States Court of Appeals, Seventh Circuit.

Argued January 12, 2009.

Decided February 8, 2010.

William P. Skemp (argued), William Skemp Law Firm, S.C., La Crosse, WI, for Plaintiff-Appellant.

John A. Wolfgang (argued), Gunta & Reak, Milwaukee, WI, for Defendants-Appellees.

Before EASTERBROOK, Chief Judge, and WILLIAMS and SYKES, Circuit Judges.

SYKES, Circuit Judge.

The City of La Crosse and John Reget have had a long, acrimonious relationship stemming from Reget's operation of a business that doubles as a body shop and an automobile-restoration company. The City's junk-dealer ordinance required Reget to comply with certain building and safety-code provisions and to fence his outdoor auto storage from the view of his surrounding residential neighbors. Reget claims the City singled him out for enforcement of this ordinance and also that it discriminated against him in connection with a proposed rezoning plan, all in violation of his rights under the Equal Protection Clause of the Fourteenth Amendment. He filed this lawsuit seeking damages and injunctive relief, but the district court granted the defendants' motion for summary judgment. Because Reget has not shown that the City has treated him differently than other similarly situated businesses, we affirm.

I. Background

Reget has operated John's Auto Body in the City of La Crosse, Wisconsin, since 1975. The conflict between Reget and the City dates back to 1980, when the City condemned his old building, compensated him for a move to his present location, and gave him an additional $14,000 to remodel his current building. On receipt of this compensation, Reget signed a release waiving all claims against the City arising from the condemnation and relocation. Since then, however, Reget is convinced the City is trying to drive him out of business. In the district court, Reget made numerous claims of mistreatment at the hands of city officials, but on appeal he limits his argument to three: He claims that the City selectively enforced its junk-dealer ordinance against him, targeted him for rezoning in a discriminatory fashion, and selectively enforced its noise regulations.

The dispute between Reget and the City flared up in the early 1990s, when the City cited Reget several times for violating the junk-dealer ordinance. This ordinance imposes a variety of obligations on junk dealers. It requires, among other things, that junk dealers obtain a license; it also imposes certain building and safety requirements on junk dealers, and limits when and where they can operate. See LA CROSSE, WIS., CODE § 20.12. Most important for purposes of this litigation, the ordinance requires that any junk dealer who stores two or more junked vehicles outdoors for more than 30 days build an opaque fence shielding the vehicles from public view.¹ Id. § 20.12(F). Reget was cited three times between 1991 and 1994 for violating the junk-dealer ordinance. The parties have not told us which provisions of the ordinance Reget allegedly violated, but it is undisputed that all three citations were eventually dismissed.

The next dispute between the parties arose in 1995-1996 when the City attempted to rezone Reget's property from "heavy industrial" to "commercial," a move that would have forced Reget to relocate his business yet again. The proposed reclassification of Reget's property was part of a comprehensive rezoning of the City's north side, and in connection with this project, more than 100 properties were rezoned. Reget contends, however, that his property was the only heavy industrial property targeted for rezoning. He complained, and the City eventually agreed to abandon its attempt to rezone Reget's property in exchange for his agreement to abide by the junk-dealer ordinance. More specifically, in a covenant signed in 1997, Reget promised to install a fence on several sides of his business to hide his outdoor auto storage from the view of nearby residences. He also agreed to abide by the City's noise restrictions by limiting his nighttime operations. The City, in turn, agreed that Reget's property would remain zoned for heavy industrial use. In addition, to allay Reget's persistent complaints that the City was selectively enforcing its ordinances, the City agreed to enforce any ordinance violations committed by Reget's neighbors.

Reget never installed the fence. He says he was excused from doing so because the City failed to live up to its agreement to enforce ordinance violations—in particular, noise violations—that he claimed his neighbors were committing. In 2003 Reget received a fourth citation, this time for violating a building-code provision of the junk-dealer ordinance. Again, the parties compromised. The City agreed to install a fence on Reget's property itself, and Reget agreed to repay the City for the cost of the fence over a period of fifteen years. Based on this agreement, the 2003 citation was dismissed.

In 2006 Reget filed this lawsuit alleging, among other claims, that the City and various city officials violated his equal-protection rights by selectively enforcing its ordinances against him and by targeting him for rezoning. The defendants moved for summary judgment. The district court granted this motion, holding that Reget had failed to submit evidence showing that similarly situated junk dealers received more favorable treatment from the City. This appeal followed.

II. Discussion

We note first that although most of the events at issue in this dispute are quite dated, the defendants did not assert a statute-of-limitations defense. This surprises us. Under the applicable statute of limitations supplied by Wisconsin law, Reget had six years to bring a claim. See WIS. STAT. § 893.53 (governing actions to recover for violations of injuries to noncontractual rights); Gray v. Lacke, 885 F.2d 399, 409 (7th Cir.1989) (applying section 893.53 to § 1983 equal-protection claims filed in Wisconsin). Reget filed this lawsuit in 2006, but nearly all of the events in this case occurred in the early and mid-1990s. The only event falling within the statute of limitations was the 2003 citation, and this citation was dismissed when the City and Reget agreed that the City would install a fence around Reget's property and assess him for the cost in installments spread over fifteen years. However, a statute-of-limitations defense is waived if it is not raised, see Perry v. Sullivan, 207 F.3d 379, 382 (7th Cir.2000), so we will proceed to the merits.

The district court granted the defendants' motion for summary judgment, holding that Reget failed to establish that a similarly situated business was treated more favorably. Our review is de novo, see Woodruff v. Mason, 542 F.3d 545, 550 (7th Cir.2008), and summary judgment is appropriate if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law," FED. R. CIV. P. 56(c). We construe all facts in the light most favorable to Reget and draw all reasonable inferences in his favor. See McKinney v. Cadleway Props., Inc., 548 F.3d 496, 499-500 (7th Cir.2008). However, when the nonmoving party bears the burden of proof, as Reget does here, he must demonstrate the existence of a genuine issue of material fact to defeat summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-26, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The Equal Protection Clause of the Fourteenth Amendment prohibits state action that discriminates on the basis of membership in a protected class or irrationally targets an individual for discriminatory treatment as a so-called "class of one." See Engquist v. Oregon Dep't of Agric., 553 U.S. 591, 128 S.Ct. 2146, 2153, 170 L.Ed.2d 975 (2008); Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). The class-of-one theory of equal protection "presupposes that like individuals should be treated alike, and that to treat them differently is to classify them in a way that must survive at least rationality review." Engquist, 128 S.Ct. at 2155. A plaintiff alleging a class-of-one equal-protection claim must establish that (1) a state actor has intentionally treated him differently than others similarly situated, and (2) there is no rational basis for the difference in treatment. Olech, 528 U.S. at 564, 120 S.Ct. 1073; Srail v. Vill. of Lisle, 588 F.3d 940, 943 (7th Cir.2009).

Some of our cases have also required proof that the state action was motivated by illegitimate animus against the plaintiff, while others have treated illegitimate animus as an alternative basis for class-of-one...