Stephanie Miller v. City of Monona , 784 F.3d 1113 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-2575
STEPHANIE MILLER, et al.,
Plaintiffs-Appellants,
v.
CITY OF MONONA, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:10-cv-00221 — William M. Conley, Chief Judge.
____________________
ARGUED JANUARY 6, 2015 — DECIDED MAY 1, 2015
____________________
Before FLAUM, WILLIAMS, and TINDER, Circuit Judges.
TINDER, Circuit Judge. This appeal requires us to again
address the boundaries of the class-of-one doctrine under
the Equal Protection Clause of the Fourteenth Amendment.
Stephanie Miller and her husband James Stellhorn, along
with their co-owned company, Harlan LLC, brought suit
under 42 U.S.C. § 1983 against the City of Monona, Wiscon-
sin, and various public officials involved in their protracted
effort to gain approval to build a condominium project. Mil-
2 No. 13-2575
ler spearheaded this effort, so for the sake of simplicity, we
will use her name as shorthand for the other appellants un-
less necessary to do otherwise. 1 Miller raised claims of class-
of-one and sex discrimination under the Fourteenth
Amendment, and unreasonable search of the property under
the Fourth Amendment. The district court dismissed the
class-of-one claim early in the litigation, reasoning that Mil-
ler had not pointed to any similarly situated development
project that had been treated more favorably. Although Mil-
ler proceeded, unsuccessfully, to summary judgment and
trial on her other claims, in this appeal she challenges only
the dismissal of the class-of-one claim. We affirm.
I. BACKGROUND
Because Miller challenges only the dismissal of her class-
of-one claim, we draw the following facts from her first
amended complaint, filed in 2010, and construe the facts in
her favor. In September 2004, Miller applied to the City for
permission to build a four-unit condominium project on a lot
she owned in Monona. Local officials took an active role in
the process from the get-go. First, Monona city planner Paul
Kachelmeier suggested that Miller purchase a neighboring
lot and try to get a larger project approved. Miller purchased
the neighboring property, which “was in the midst of a
stalled rehabilitation project” and “had sat gutted and va-
cant for five years,” and resubmitted her application as a re-
quest to build a 10-unit project.
1 Miller died after this appeal had been filed, but her estate has been sub-
stituted as an appellant, through her son Jesse Miller as personal repre-
sentative. See Fed. R. App. P. 43(a)(1).
No. 13-2575 3
The approval process dragged on throughout 2005. In
February, Kachelmeier recommended site planners, archi-
tects, and builders for the project, and in August, the City’s
planning commission suggested changes to Miller’s plan.
The City also asked for $25,000 for Miller’s proposed use of
public property during construction. In September 2005, Mil-
ler’s architect again revised the plans and resubmitted them.
In early 2006, the project hit further snags. First, in Janu-
ary 2006, before the commission accepted Miller’s revised
plans, an inspection uncovered asbestos on both of her lots.
Additionally, in March 2006, Miller’s architect informed Ka-
chelmeier that the project had stalled because Miller was in
negotiations with neighboring property owners, including
Richard Lichtfeld, a former mayor of Monona, about their
involvement in a still larger development project.
Later that month, Miller’s negotiations with Lichtfeld
broke down. Lichtfeld then trespassed on her property at the
direction of City officials and took photographs that were
used at a planning commission meeting in April 2006 to op-
pose her project. Two weeks after the meeting, Kachelmeier
emailed Monona’s then-mayor, Robb Kahl, to inform him
about the failed negotiations and that Miller wanted to meet
to discuss going forward with her original plan. In May
2006, the planning commission held a public hearing about
Miller’s project, and afterward, Kachelmeier told Miller that
he had spoken with Lichtfeld about her project. Lichtfeld
then again trespassed on the property to take additional
photographs.
In June 2006, Miller obtained permission from the State of
Wisconsin to demolish the buildings and remove the asbes-
tos. In July, her husband drove a truck filled with asbestos to
4 No. 13-2575
a local landfill and completed the exterior asbestos removal.
But that same month, David Nettum, an independent build-
ing inspector working on behalf of the City, issued citations
to Miller for creating a public nuisance and working without
a proper permit from the City. The City also informed Miller
that she needed a local razing permit to demolish the hous-
es. She then obtained a permit allowing demolition through
July 30, but shortly afterward, Mark Davis, from the Wiscon-
sin Department of Natural Resources (“DNR”), issued a
“stop work” order because of asbestos debris and interior
asbestos on Miller’s property. On July 20, a professional con-
tractor removed the interior asbestos in compliance with a
walk-through inspection with Davis. The next day, Nettum
returned and removed boarded windows or doors to inspect
the property and take photographs.
Within a week, Lichtfeld again photographed Miller’s
property and suggested to Monona officials that Miller be
ordered to erect a fence around her property. Shortly after-
ward, at a planning commission meeting, Mayor Kahl in-
formed Miller that she would be required to erect a fence
and warned her that a fine of $2,000 per day was being im-
posed for the code violations on her property, which he de-
scribed as the City’s “number one problem.” Two days later,
on July 26, the City ordered Miller to erect a fence by July 29,
and provided her with a letter from Nettum stating that the
property was a public nuisance because of the partial demo-
lition. On July 27, three days before the expiration of her
demolition permit, Miller received two more letters from an
inspector for the City ordering that the two houses be razed.
She received similar letters on August 1 and 2, after her
permit expired.
No. 13-2575 5
On August 4, 2006, Nettum provided Miller with a con-
demnation report that included photographs of the exterior
and interior of the two houses on her property. On August 8,
Miller finally erected the fence that the City had requested in
July. The next day, “the final structural asbestos abatement
was completed,” and within two weeks, “Waste Manage-
ment disposed of asbestos removed in [a] surface scrape.”
Demolition of the houses was completed sometime shortly
after that. In September, Miller tried to contact Davis to con-
firm compliance with the DNR orders, but he was unavaila-
ble. She sought to move forward on her project without this
final approval, but was told by city officials that she had to
wait until the DNR approved the asbestos removal and until
she paid outstanding fines. Nettum also returned to the
property, at the behest of the city attorney, to investigate
whether the weeds were too high.
On October 3, 2006, before approval of the asbestos re-
moval, Nettum informed Miller that she needed to remove a
garage, pier, boat hoist, and driveway from her property. Six
days later, Nettum issued Miller citations for not razing
these structures and for not filling the lots to the proper
grade. Miller obtained a razing permit for the garage within
two days and razed the garage within two weeks. In No-
vember, Nettum reported to the planning commission that,
although debris had remained after the razing, he had noti-
fied Miller’s contractors, and they had taken care of final
compliance, so the final inspection of Miller’s property had
been satisfactory.
Despite the satisfactory inspection, Kachelmeier and Kahl
would not allow Miller to continue construction until her
outstanding citations were resolved. In April 2007, a city in-
6 No. 13-2575
spector ordered Miller to take down the fence, which she
did.
Miller ultimately went to trial in municipal court on her
citations for code violations. Although Miller did not attach
a copy of the court’s decision to her complaint, it is cited in
the complaint, and we may take judicial notice of court rec-
ords. See Fox v. Am. Alt. Ins. Corp., 757 F.3d 680, 684 (7th Cir.
2014). In February 2009, the municipal court issued a deci-
sion rejecting three of the four citations against Miller. The
court acknowledged that city code requires demolition of
appurtenant surfacing and structures no longer useful on the
property. See Monona, Wis., Code § 15-1-83(b)(1) (“Whenev-
er a building is razed or demolished … all surfacing on such
premises shall be removed unless intended to be used in
connection with the proposed use of the premises.”); id. § 15-
1-83(b)(4) (“All appurtenant structures on the premises no
longer useful for the intended use of the premises shall like-
wise be razed or demolished and the resulting debris re-
moved from the premises.”). But the court reasoned that the
garage that Nettum ordered Miller to remove was still use-
ful, at least temporarily, as storage during construction, and
similarly, that the driveways, boat hoist, and pier might
have been useful in the future. As for the citation for im-
proper grade filling, the court rejected the citation because
photographs of the property were too grainy to decide either
way. The court upheld the citation for starting demolition
without a proper permit, and ordered Miller to pay $671 to
the City.
Miller also asked the municipal court to find selective
prosecution, but it refused, concluding that, although “some
of the efforts to enforce compliance [with the building code]
No. 13-2575 7
were unreasonable,” the proper avenue for challenging
those actions would be to appeal the order of the building
inspector. See Monona, Wis., Code § 15-1-27 (permitting ap-
peal of building inspectors’ decisions to the Zoning Board of
Appeals). Moreover, the court concluded that Miller had not
pointed to any similarly situated person who had been treat-
ed differently.
After the trial, a Monona city official refused to adjust the
taxes on Miller’s property to reflect the demolitions, even
though according to Miller, Lichtfeld’s property had a lower
tax assessment. Miller contacted the Dane County Treasurer,
who had the assessment corrected. Miller says that Monona
officials continued to trespass on her property from 2008
through 2010 by parking their cars on a remaining driveway.
In April 2010, Miller filed this lawsuit, alleging that Da-
vis, Nettum, Kahl, Kachelmeier, and the City of Monona had
intentionally treated her differently than others similarly sit-
uated without a rational basis. For a comparator, she pointed
to Kevin Metcalfe—the son of another former Monona
mayor—and alleged that he had applied and gained ap-
proval for a 45-unit condominium development on the same
street as her project without opposition or a fee for use of
public property.
In March 2011, in dismissing the class-of-one claim, the
district court rejected the Metcalfe project as a suitable com-
parator for two reasons: first, the Metcalfe project was four-
times larger than Miller’s, and second, only Miller’s project
involved removal of asbestos. The court concluded that
“both differences would appear relevant to determining
whether a renovation project should be given the City’s
8 No. 13-2575
green light,” and that the lack of a suitable comparator pre-
vented a successful class-of-one claim.
Miller’s claim of sex-discrimination survived, though the
district court noted “just barely”—as did her claims under
the Fourth Amendment. But in December 2012, the court
granted summary judgment on nearly all of the remaining
claims. The court again rejected Metcalfe as a suitable com-
parator, indicating that its earlier concern about size of the
project may have been misplaced but that the problems with
citations and demolitions on Miller’s property precluded a
comparison to Metcalfe’s project. The court also emphasized
that there was no evidence that Miller had been treated un-
fairly because of her sex.
The district court allowed Miller to proceed to trial on
her claim that Davis violated her rights under the Fourth
Amendment by entering her property without a warrant.
After a two-day trial in February 2013, a jury found in favor
of Davis. On February 13, 2013, the court entered final
judgment, with prejudice, in favor of Davis, the City, Ka-
chelmeier, Kahl, and Nettum.
II. DISCUSSION
Although the caption on the notice of appeal lists Davis
alone as an appellee, Miller did not challenge the judgment
in Davis’s favor in her opening brief and ultimately opted to
voluntarily dismiss her appeal in regard to him. See Fed. R.
App. P. 42(b). Miller thus limits her challenge to the dismis-
sal of her class-of-one claims against the City, Kachelmeier,
Kahl, and Nettum.
No. 13-2575 9
A. Notice of Appeal
Seizing on the fact that only Davis is named in notice of
appeal, the other appellees argue that Miller failed to file a
timely appeal as to them. This argument is unpersuasive. It
is true that the dictates of Federal Rule of Appellate Proce-
dure 3, which sets forth the required contents of a notice of
appeal, Fed. R. App. P. 3(c)(1), are “jurisdictional in nature,
and their satisfaction is a prerequisite to appellate review.”
Smith v. Barry, 502 U.S. 244, 248 (1992). But even so, we “lib-
erally construe the requirements of Rule 3,” so that even
“when papers are technically at variance with the letter of
Rule 3, a court may nonetheless find that the litigant has
complied with the rule if the litigant’s action is the functional
equivalent of what the rule requires.” Id. (internal quotation
marks and alternations omitted); see Harvey v. Town of Mer-
rillville, 649 F.3d 526, 528 (7th Cir. 2011) (“[A]s a general rule
‘inept’ attempts to comply with Rule 3(c) are accepted as
long as the appellee is not harmed.”) (internal quotation
marks omitted). Furthermore, Rule 3(c)(1) does not even
technically require specification of the appellees. Rather, the
rule requires that notices of appeal specify the parties taking
the appeal, designate the judgment or order being appealed,
and name the court to which the appeal is taken. The notice
here does that, stating that this is an appeal to this court
from the final judgment entered on February 13, 2013, which
was in favor of not only Davis but also the City, Kachel-
meier, Kahl, and Nettum. The notice of appeal thus alerted
these appellees to their potential involvement in this appeal,
and we are satisfied in our jurisdiction to review the claims
against them.
10 No. 13-2575
B. Ripeness
Appellees also try to head off Miller’s class-of-one claim
by arguing that it is not ripe because the claim really pre-
sents a takings violation under Williamson County Regional
Planning Commission v. Hamilton Bank of Johnson City, 473
U.S. 172 (1985), which outlines special exhaustion require-
ments. They emphasize that “[t]his circuit has
read Williamson County broadly, rejecting attempts to label
‘takings’ claims as ‘equal protection’ claims and thus requir-
ing ‘ripeness.’” Flying J Inc. v. City of New Haven, 549 F.3d
538, 543 (7th Cir. 2008) (internal quotation marks omitted).
The district court concluded that it need not address this ar-
gument after concluding that Miller failed to state a class-of-
one claim, but appellees urge this court to address it as a ju-
risdictional concern.
The problem with this argument, however, is that ruling
on the applicability of Williamson County in this situation ap-
pears to require an analysis of the merits of the class-of-one
claim. As Miller emphasizes, we have recognized an excep-
tion to the Williamson County analysis for land-use cases that
raise “bona fide equal protection claims,” as when the plead-
ings allege malicious conduct by a government agent. Id. (in-
ternal quotation marks omitted). The determination whether
Miller’s claim is “bona fide” requires us to address the mer-
its, to which we now turn.
C. Class-of-One Claim
At the outset, it is important to remember that “federal
courts, as we have explained time and again, are not zoning
boards of appeal.” CEnergy-Glenmore Wind Farm # 1, LLC v.
Town of Glenmore, 769 F.3d 485, 487 (7th Cir. 2014) (collecting
No. 13-2575 11
cases). For that reason, “[s]tate and local land-use decisions
are entitled to great deference when constitutional claims are
raised in federal court.” Id. On top of that, certain forms of
state action—as with the approval process and code en-
forcement at issue here—“involve discretionary deci-
sionmaking based on a vast array of subjective, individual-
ized assessments.” Engquist v. Or. Dep’t of Agric., 553 U.S.
591, 603 (2008). In those situations, “the rule that people
should be ‘treated alike, under like circumstances and condi-
tions’ is not violated when one person is treated differently
from others, because treating like individuals differently is
an accepted consequence of the discretion granted,” and “al-
lowing a challenge based on the arbitrary singling out of a
particular person would undermine the very discretion that
such state officials are entrusted to exercise.” Id. Thus, even
if we disagree with a land-use decision made by local offi-
cials, there is no class-of-one claim unless the plaintiff is able
to show that there was no rational basis for the officials’ ac-
tions. See Discovery House, Inc. v. Consol. City of Indianapolis,
319 F.3d 277, 283 (7th Cir. 2003).
“Normally, a class-of-one plaintiff will show an absence
of rational basis by identifying some comparator—that is,
some similarly situated person who was treated different-
ly.” Fares Pawn, LLC v. Ind. Dep’t of Fin. Insts., 755 F.3d 839,
845 (7th Cir. 2014). To be similarly situated, a comparator
must be “identical or directly comparable” to the plaintiff
“in all material respects.” LaBella Winnetka, Inc. v. Vill. of
Winnetka, 628 F.3d 937, 942 (7th Cir. 2010); accord Reget v. City
of La Crosse, 595 F.3d 691, 695 (7th Cir. 2010).
Miller insists on appeal that the Metcalfe project is a suit-
able comparator. We agree with her on one point: The dis-
12 No. 13-2575
trict court’s first reason for rejecting the Metcalfe project as a
comparator—the relative sizes of the two projects—is not
persuasive. If anything, it would seem natural for the larger
project to receive extra scrutiny. But the court’s second rea-
son—that Miller’s property alone required asbestos remov-
al—is sound. By Miller’s own description, one of her lots
“had sat gutted and vacant for five years,” and the buildings
on her property required multiple rounds of asbestos re-
moval and eventual demolition, at a cost exceeding $18,000.
The Metcalfe project is not alleged to have had any similar
problems, and since those concerns are the Monona officials’
primary defense for their actions, this difference is critical
and makes the Metcalfe project an unhelpful comparator.2
The lack of a comparator, however, does not doom Mil-
ler’s claim. “Unfortunately, the class-of-one standard in this
circuit is in flux,” Thayer v. Chiczewski, 705 F.3d 237, 254 (7th
Cir. 2012)—complicated by our split en banc decision in Del
Marcelle v. Brown County Corp., 680 F.3d 887, 913 (7th Cir.
2012). But nonetheless, we have repeatedly confirmed that
“[p]laintiffs alleging class-of-one equal protection claims do
not need to identify specific examples of similarly situated
persons in their complaints.” Capra v. Cook Cnty. Bd. of Re-
view, 733 F.3d 705, 717 (7th Cir. 2013), cert. denied, 134 S. Ct.
2 As further reason to reject Miller’s argument about comparators, the
appellees argue that we should consider that no suitable comparator was
presented even as the litigation progressed to summary judgment on the
sex-discrimination claim. But the appellees do not cite precedent allow-
ing reliance on a summary judgment ruling in this situation, and the
court’s decision at summary judgment was tailored to the context of sex
discrimination, so we decline to rely on the conclusions in that decision.
No. 13-2575 13
1027 (2014); see Geinosky v. City of Chicago, 675 F.3d 743, 748
n.3 (7th Cir. 2012) (“Even in a case where a plaintiff would
need to identify a similarly situated person to prove his case,
… we see no basis for requiring the plaintiff to identify the
person in the complaint.”). Indeed, as Miller notes, we have
recently reversed the rejection of similar claims, despite the
lack of a comparator, when plaintiffs were able to exclude
rational explanations for why local officials targeted them.
See Swanson v. City of Chetek, 719 F.3d 780, 785 (7th Cir. 2013);
Geinosky, 675 F.3d at 747–48.
In Geinosky, for example, we allowed the plaintiff to pro-
ceed on a class-of-one claim against officers from a single po-
lice unit who issued 24 bogus tickets to his Toyota over the
course of 14 months. 675 F.3d at 745–48. We emphasized that
“[s]ome of the tickets were inconsistent with others received
at the same time, implying, for example, that the Toyota was
in two places almost at once or was simultaneously double-
parked and parked on the sidewalk.” Id. at 745. We reasoned
that this “extraordinary pattern of baseless tickets” amount-
ed to a plausible class-of-one claim, particularly since
“[r]eason and common sense provide no answer to why he
was targeted that could be considered a legitimate exercise
of police discretion.” Id. at 748.
Similarly, in Swanson, we relied on Geinosky to reverse the
grant of summary judgment against plaintiffs whose neigh-
bor, the local mayor, engaged in prolonged harassment
against them after they tried to build a fence between their
property and his. 719 F.3d at 784–85. We determined that the
mayor’s actions—which included entering the plaintiffs’
home without permission, abusing his position to delay is-
suance of a fence permit, shouting at them during a meeting
14 No. 13-2575
about the permit, telling the plaintiffs’ contractors that they
were drug dealers and unlikely to pay, and causing the initi-
ation of a baseless prosecution in municipal court—
appeared “illegitimate on their face” and “demonstrate[d]
overt hostility.” Id. at 782, 785. We noted that the plaintiffs
had presented evidence of another individual who had
gained permission to build a fence, and that although the
other fence had distinguishing characteristics, the evidence
helped to show that the mayor’s treatment of the plaintiffs
had departed from the norm. Id. at 785.
Miller’s situation is distinguishable, however, from
Geinosky and Swanson because the complaint reveals a ra-
tional basis—the persistent asbestos and building code prob-
lems on her property—for the actions of Monona officials.
Even under what we have referred to as “the least demand-
ing standard” articulated in Del Marcelle, plaintiffs must al-
lege that state actors lacked a rational basis for singling them
out for intentionally discriminatory treatment. Charleston v.
Bd. of Trs. of the Univ. of Ill. at Chi., 741 F.3d 769, 775 (7th Cir.
2013), cert. denied, 134 S. Ct. 2719 (2014); see Vill. of Willow-
brook v. Olech, 528 U.S. 562, 564 (2000) (“Our cases have rec-
ognized successful equal protection claims brought by a
‘class of one,’ where the plaintiff alleges that she has been
intentionally treated differently from others similarly situat-
ed and that there is no rational basis for the difference in
treatment.”). Under this standard, “a class-of-one plaintiff
must, to prevail, negative any reasonably conceivable state
of facts that could provide a rational basis for the classifica-
tion.” Scherr v. City of Chicago, 757 F.3d 593, 598 (7th Cir.
2014) (internal quotation marks omitted). It is not enough for
a complaint to suggest an improper motive, for “‘[a] given
action can have a rational basis and be a perfectly logical ac-
No. 13-2575 15
tion for a government entity to take even if there are facts
casting it as one taken out of animosity.’” Fares Pawn, 755
F.3d at 845 (quoting Flying J, 549 F.3d at 547). Thus, even at
the pleadings stage, “[a]ll it takes to defeat [a class-of-one]
claim is a conceivable rational basis for the difference in
treatment.” D.B. ex rel. Kurtis B. v. Kopp, 725 F.3d 681, 686
(7th Cir. 2013), cert. denied, 134 S. Ct. 1308 (2014).
For that reason, it is possible for plaintiffs to plead them-
selves out of court if their complaint reveals a potential ra-
tional basis for the actions of local officials. See id. (affirming
dismissal of class-of-one claim when complaint revealed ra-
tional basis for treating plaintiff differently notwithstanding
facts suggesting officials had potentially improper motives);
Flying J, 549 F.3d at 547–48 (same). Put differently, “[i]f we
can come up with a rational basis for the challenged action,
that will be the end of the matter—animus or no.” Fares
Pawn, 755 F.3d at 845.
We are persuaded that, as in Kopp and Flying J, Miller
pleaded herself out of court. It is clear from the first amend-
ed complaint that Miller’s property contained dilapidated
structures requiring multiple rounds of asbestos removal
(which took more than half a year to complete), that she de-
layed her compliance with local code-enforcement efforts,
and that a municipal court ultimately held that she had vio-
lated Monona’s building code by beginning demolition
without proper permitting.
Miller contends that, even if Monona officials had a ra-
tional reason to target her property, they did so in an irra-
tional way, requiring her to build a fence only to later re-
quire her to tear it down and refusing to approve her project
until she paid outstanding fines. But unlike in Geinosky and
16 No. 13-2575
Swanson, the complaint alleges rational explanations for
these actions. For example, the first amended complaint al-
leges that “[o]n July 7, 2006, Mark Davis, of the Wisconsin
Department of Natural Resources, issued a ‘stop work’ [or-
der] via fax … for the stated reason of asbestos debris and
interior asbestos.” First Am. Compl. ¶ 4037. The complaint
further alleges that Miller “received an order from the City
of Morona to secure her properties with a fence by July 29,
2006” because “[her] property was alleged to be a public
nuisance due to partial demolition.” Id. ¶ 4043. In addition, it
is alleged that “[t]he City of Monona refused to allow … Mil-
ler’s project to go forward without the approval of the asbes-
tos removal by the DNR [Department of Natural Re-
sources].” Id. ¶ 4059. And the complaint alleges that the City
Planner ordered “that no work be performed until all forfei-
tures were paid, pursuant to the instruction of the mayor”
and that “the project not proceed until all citations were re-
solved.” Id. ¶¶ 4055, 4060. By pleading rational bases for the
actions of local officials, Miller pleaded herself out of court.
Miller emphasizes the allegations that former mayor
Lichtfeld had animus toward her after their failed negotia-
tions and acted to improperly influence city officials. At first
glance these allegations bear a striking resemblance to Swan-
son, where a local mayor used his position to harass his
neighbors. But unlike in Swanson, Lichtfeld was not the
mayor at the time of the events here, nor was he named as a
party in this lawsuit. Instead, Miller’s allegations about
Lichtfeld are similar to the theory, recognized in the context
of employment discrimination, that permits the animus of a
non-party to be imputed to a decisionmaker if the person
with animus was the proximate cause of an adverse action
against the plaintiff. See Staub v. Proctor Hosp., 131 S. Ct. 1186,
No. 13-2575 17
1194 (2011); Johnson v. Koppers, Inc., 726 F.3d 910, 914 (7th
Cir. 2013). It would be difficult for Miller to prevail on that
theory, however, because the problems with her property
were apparent even apart from Lichtfeld’s actions, and her
allegations suggest that City officials conducted their own
investigations of her property through Nettum. See Johnson,
726 F.3d at 915 (concluding that “cat’s paw” theory was in-
applicable when manager conducted investigation that re-
vealed unbiased reason for adverse action); Schandelmeier-
Bartels v. Chi. Park Dist., 634 F.3d 372, 383 (7th Cir. 2011)
(holding that cat’s paw theory does not apply when deci-
sionmaker conducts a meaningful, independent investiga-
tion).
Miller suggests that further discovery would show that
Lichtfeld had significant influence over Monona officials be-
cause he hired them. But this fact is not included in the first
amended complaint. And more importantly, as explained
earlier, to succeed on a class-of-one claim, Miller had to do
more than merely allege facts casting the actions of Monona
officials as being motivated by animus; she needed to ex-
clude possible rational explanations for their actions. Fares
Pawn, 755 F.3d at 845; Kopp, 725 F.3d at 686. Thus, even if
Miller could show that Monona officials targeted Miller’s
property because of Lichtfeld’s complaints, because there
were potential rational reasons to target Miller’s derelict
property, we are persuaded that the district court correctly
granted appellees’ motion to dismiss the class-of-one claim.
Miller also emphasizes that three of the four citations is-
sued by inspector Nettum were rejected at trial. But it is cru-
cial to examine why those citations were rejected. The mu-
nicipal court noted that the City bore the burden of produc-
18 No. 13-2575
ing clear and convincing evidence of Miller’s code viola-
tions, and that for the citation related to grade filling, the
City failed to meet its burden because it provided only
grainy photographs as proof. The other citations primarily
rested on Nettum’s understanding that appurtenant struc-
tures on Miller’s land—e.g., the garage, boat hoist, and
driveways—had no useful purpose after Miller razed the ex-
isting buildings. Although the municipal court ultimately
disagreed with Nettum’s decision, his actions seem a far cry
from the entirely baseless citations in Swanson and Geinosky.
Moreover, unlike either of those cases, here the municipal
court upheld one of the citations, for violating the building
code by beginning demolition without a proper permit, con-
firming that Nettum had a legitimate basis for citing Miller’s
property. Finally, Nettum points out that not only did his job
necessarily involve discretionary decisionmaking but that, as
shown by the municipal court decision, it was not him but
an attorney for the City who prosecuted the citations
Nettum issued. Thus, in light of the great deference we af-
ford to discretionary local decisions regarding land use,
see CEnergy-Glenmore, 769 F.3d at 487; Discovery House, 319
F.3d at 283, and the conceivable rational reasons for
Nettum’s actions, we agree with the district court that the
class-of-one claim against Nettum fails.
Accordingly, the judgment of the district court is
AFFIRMED.