Atlas v. Village of Glencoe

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

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JANE ATLAS and MARGARET

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SCHWALBACH,

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Plaintiffs, No. 19 C 3962

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v. Judge Virginia M. Kendall

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VILLAGE OF GLENCOE, an Illinois

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Municipal Corporation,

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Defendant. )

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MEMORANDUM OPINION AND ORDER

Plaintiffs Jane Atlas and her daughter, Margaret Schwalbach claim that

Defendant, Village of Glencoe (the “Village”), violated Plaintiffs’ constitutional rights

by failing to grant an emergency work permit and to provide consideration for an

easement in connection with a deteriorating ravine which threatened Ms. Atlas’s

property. Plaintiffs brought a five-count complaint in state court, alleging two state-

law claims (Counts I and II) and three federal claims (Counts III–V). (Dkt. 1). Given

the federal claims, the Village removed the case to federal court. (Id.). This Court

granted the Village’s request to delay its answer to the state-law claims pending the

resolution of the Village’s motion to dismiss the federal claims. (Dkt. 17).

Plaintiffs bring their federal claims against the Village under 42 U.S.C.

§§ 1983, 1988, for deprivation of their substantive due process rights (Count III) and

equal protection rights (Count IV and V). The Village has moved to dismiss these

claims, and for the following reasons, the Village’s motion is granted.

BACKGROUND

The following factual allegations are taken from Plaintiffs’ complaint and are

assumed true for purposes of this motion. W. Bend Mut. Ins. Co. v. Schumacher, 844

F.3d 670, 675 (7th Cir. 2016).

Ms. Atlas previously owned and resided in a home in the Village (the

“residence”). (Dkt. 11-1 ¶ 6). The residence was situated on property Ms. Atlas

owned. (Id.) The residence overlooked and was adjacent to a ravine, part of which

was within the boundaries of Ms. Atlas’s property. (Id. ¶ 7).

The Village constructed stormwater management facilities designed to empty

stormwater from the Village streets and surrounding areas into a stream at the

bottom of the ravine. (Id. ¶¶ 10, 11). At some point before May 2017, the Village

became aware that a portion of the stormwater system near the residence had been

damaged and had, in part, collapsed. (Id. ¶ 12). The collapsed drain and damaged

system caused stormwater to jet toward the slope of the ravine on Ms. Atlas’s

property, causing erosion which “undermine[d] the stability” of the ravine. (Id. ¶¶

13, 15, 16). The Village, however, did not inform Ms. Atlas of the damaged system,

and as of Spring 2018, the Village had still not repaired it. (Id. ¶¶ 14–15).

In early May 2018, Ms. Atlas listed her residence and property for sale, and,

on May 14, 2018, she signed a contract with a purchaser to sell the residence and

property for $527,000. (Id. ¶¶ 8, 9). On May 21, 2018, heavy rains led to significant

erosion of the ravine on Ms. Atlas’s property. (Id. ¶ 16). On May 22, 2018, a home

inspection by the purchaser revealed the significant erosion of the ravine and that

the erosion had undermined the foundation of the residence. (Id. ¶ 17). The contract

was cancelled immediately, as was the listing. (Id. ¶¶ 18, 19). Ms. Atlas contacted

several expert consultants, who determined that the erosion was due to the damaged

stormwater system and collapsed drain. (Id. ¶ 20).

On May 30, 2018, Ms. Atlas, Ms. Schwalbach, and David Mau, the Village

Director of Public Works, met at Ms. Atlas’s property. (Id. ¶ 21). Mr. Mau indicated

the Village would address the defect and would seek an easement from Ms. Atlas to

access the ravine. (Id. ¶ 21). On June 26, 2018, Ms. Atlas and Ms. Schwalbach met

with Mr. Mau and Village Engineer, Anna Kesler, at the Village Hall regarding the

damage to the ravine and the residence. (Id. ¶ 22). Mr. Mau and Ms. Kesler told Ms.

Atlas and Ms. Schwalbach that the Village had been aware of the problem for some

time and that funds had been approved to make necessary repairs to the damaged

system. (Id. ¶ 22). Ms. Atlas requested Village assistance in addressing the damage.

(Id. ¶ 23). The Village offered no specific assistance but again requested an easement

on Ms. Atlas’s property to perform repairs. (Id. ¶ 23). In response, Ms. Atlas asked

the Village to stabilize the part of the ravine on her property. (Id. ¶ 24). The Village

declined, stating that it would not offer her consideration for the easement and that

its repairs would be limited to the immediate area surrounding the damaged part of

the system and the collapsed drain. (Id. ¶ 24).

Heavy rains continued to cause damage to the ravine and the residence, and

on June 27, 2018, Ms. Schwalbach discovered a crack in the foundation of the

residence. (Id. ¶¶ 25, 26). On June 29, 2018, both Mr. Mau and Ms. Kesler observed

the damage to the residence and property. (Id. ¶ 27). The next day, Mr. Mau

acknowledged that, to prevent further damage, Ms. Atlas would need to undertake

temporary shoring of the ravine on her property. (Id. ¶ 28). Mr. Mau, however, did

not state what, if anything, the Village would do to repair the damage caused by the

stormwater system. (Id. ¶ 28).

On July 19, 2018, Ms. Atlas and Ms. Schwalbach appeared before the Village

Board of Trustees seeking assistance in correcting the problems with the property

and residence. (Id. ¶¶ 29–30). At the meeting, Ms. Atlas and Ms. Schwalbach openly

criticized the Village and its staff for their lack of responsiveness to the damage

caused to Ms. Atlas’s residence and property. (Id. ¶¶ 29–30). After the meeting, the

Village again asked Ms. Atlas about the easement, but still did not offer her any

consideration. (Id. ¶ 32). Nor did the Village take any action to repair the damaged

system or to stabilize Ms. Atlas’s property. (Id. ¶ 32).

Deterioration of the ravine, property, and residence continued, and Plaintiffs

were forced to vacate. (Id. ¶ 34). At that point, Ms. Atlas contracted to have

emergency shoring work done. (Id. ¶ 35). On July 26, 2018, Ms. Atlas told Ms. Kesler

about the emergency work and Ms. Kesler gave Ms. Atlas a permit form for the

emergency work and a copy of the Village’s Steep Slope Regulations, “promising that

the Village would expedite any permit review for the [e]mergency [w]ork.” (Id. ¶ 36).

On August 2, 2018, Ms. Atlas filed the emergency permit application and

contractors began work on her property. (Id. ¶ 37). But the work was short lived—

instead of processing the permit, the Village placed a stop work order on the shoring.

(Id. ¶ 38). The Village required that Ms. Atlas supplement the emergency application

with information she asserts is typically required only for a non-emergency

application. (Id. ¶ 42). Still, the Village sought an easement yet declined to provide

consideration for it. (Id. ¶ 39). Without the necessary work on the ravine, damage to

Ms. Atlas’s property continued. (Id. ¶ 40).

In mid-August 2018, Ms. Atlas and Ms. Schwalbach attended yet another

Village Board meeting, again publicly criticizing the Village, this time publicly calling

the Village Manager a liar when he claimed no knowledge of the emergency shoring

work. (Id. ¶ 41).

By September 2018, Ms. Atlas still had not received a permit to conduct the

shoring work. (Id. ¶ 46). Lacking sufficient funds to continue pursuing repair of her

property, on October 5, 2018, Ms. Atlas accepted a contract to sell the property to a

company specializing in distressed property for $217,775, a substantial reduction

from the May offer price of $527,000. (Id. ¶ 9, 48). On October 8, 2018, the Village

issued the permit for the emergency work. (Id. ¶ 49).

LEGAL STANDARD

The Village moves to dismiss Ms. Schwalbach for lack of standing, an

argument properly made pursuant to Federal Rule of Civil Procedure 12(b)(1). In

reviewing a Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction, the

plaintiff must carry her burden of establishing that jurisdiction is proper. Ctr. for

Dermatology & Skin Cancer, Ltd. v. Burwell, 770 F.3d 586, 588–89 (7th Cir. 2014).

To determine whether jurisdiction exists, the Court turns to the complaint along with

evidence outside of the pleadings. Apex Digital, Inc. v. Sears, Roebuck & Co., 572

F.3d 440, 444 (7th Cir. 2009). A court lacking subject-matter jurisdiction must

dismiss the action without proceeding to the merits. See MAO-MSO Recovery II, LLC

v. State Farm Mut. Auto. Ins. Co., 935 F.3d 573, 581 (7th Cir. 2019).

The Village also moves to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6). To survive a motion to dismiss under Rule 12(b)(6), the complaint “must

contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation

marks omitted). A claim is facially plausible “when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. The Court is “not bound to accept as true a

legal conclusion couched as a factual allegation.” Olson v. Champaign Cty., Ill., 784

F.3d 1093, 1099 (7th Cir. 2015) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007)). “Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Toulon v. Cont’l Cas. Co., 877 F.3d 725, 734

(7th Cir. 2017) (quoting Iqbal, 556 U.S. at 678).

DISCUSSION

The Village’s Motion to Dismiss addresses solely the federal claims: Count III

(due process claim) and Counts IV and V (equal protection claims). The Village also

contests Ms. Schwalbach’s standing. Plaintiffs concede most of the Village’s

argument; they concede that Ms. Schwalbach does not have standing, and they have

chosen not to contest the dismissal of Counts III and V.

A. Standing

The Village argues that Ms. Schwalbach lacks standing because she has not

suffered any injury. Specifically, the Village notes that Ms. Schwalbach did not own

the property at issue; Ms. Atlas was the owner. See McGarry & McGarry, LLC v.

Bankr. Mgmt. Sols., Inc., 937 F.3d 1056, 1063 (7th Cir. 2019) (noting that standing

requires “(1) a concrete and particularized injury in fact that is (2) fairly traceable to

the alleged action of the defendant and (3) likely to be redressed by a favorable

decision”). Ms. Schwalbach concedes that she does not have standing to bring the

claims at issue—her mother was the sole owner of the property and was the person

who suffered the injury, namely the economic consequences. (Dkt. 18 at 5 n.1).

Counts III–V as brought by Ms. Schwalbach, are therefore dismissed.

B. Due Process Claim

Plaintiffs allege in Count III that the Village violated their rights to due

process, asserted through § 1983. Plaintiffs do not expressly state what right was

interfered with, but it appears to be Ms. Atlas’s property right to the emergency work

permit. Ms. Atlas does not invoke a fundamental right, and so the Village need only

show that its action was “rationally related to a legitimate government interest.”

Alarm Detection Sys., Inc. v. Orland Fire Prot. Dist., 929 F.3d 865, 874 (7th Cir. 2019).

“This is a lenient standard, and laws challenged under rational-basis review carry a

strong presumption of validity.” Id. (internal quotation marks omitted).

The Village argues both that Ms. Atlas did not have a property right to the

emergency work permit and that Ms. Atlas has not sufficiently alleged that there was

no rational basis for the Village’s actions. While Plaintiffs dispute whether the

Village had a rational basis for its actions, they have chosen not to contest the

dismissal of Count III. (Dkt. 18 at 5 n.1). Count III is therefore dismissed.

C. Equal Protection Claims

Plaintiffs allege in Counts IV and V violations of Ms. Atlas’s right to equal

protection, asserted through § 1983. The Equal Protection Clause of the Fourteenth

Amendment directs that similarly situated individuals be treated alike under the

law. See St. Joan Antida High Sch. Inc. v. Milwaukee Pub. Sch. Dist., 919 F.3d 1003,

1008 (7th Cir. 2019). Where the state action involves a suspect class, such as race,

strict scrutiny applies. Id. Otherwise, rational basis review applies. Id.

Here, Ms. Atlas does not advance a claim based on a suspect classification.

Instead, she advances a “class-of-one” theory. “The core idea behind a class-of-one

claim is that the equal-protection guarantee ‘protect[s] individuals against purely

arbitrary government classifications, even when a classification consists of singling

out just one person for different treatment for arbitrary and irrational purposes.’”

Paramount Media Grp., Inc. v. Vill. of Bellwood, 929 F.3d 914, 920 (7th Cir. 2019)

(quoting Geinosky v. City of Chicago, 675 F.3d 743, 747 (7th Cir. 2012)). “The classic

class-of-one claim is illustrated when a public official, ‘with no conceivable basis for

his action other than spite or some other improper motive. . . comes down hard on a

hapless private citizen.’” Swanson v. City of Chetek, 719 F.3d 780, 784 (7th Cir. 2013)

(quoting Lauth v. McCollum, 424 F.3d 631, 633 (7th Cir.2005)). Courts apply rational

basis review to class-of-one claims. Paramount, 929 F.3d 914, 920 (7th Cir. 2019).

The crux of Ms. Atlas’s class-of-one argument is that the Village singled her

out and exhibited animus towards her because she was openly critical of the Village

and how it handled the damaged system. As a result of this animus, Ms. Atlas

alleges, the Village prevented her from timely obtaining an emergency work permit

(Count IV) and refused to offer her consideration for an easement onto her property

to fix the damaged system (Count V). Plaintiffs do not contest the dismissal of Count

V (Dkt. 18 at 5 n.1), so that count is dismissed.

Only Count IV remains, as asserted by Ms. Atlas. Although the standard for

a class-of-one equal protection claim is currently unsettled in this circuit, see Del

Marcelle v. Brown Cnty. Corp., 680 F.3d 887 (7th Cir. 2012) (en banc) (5-5 division

resulting in no controlling opinion), at a minimum, to state such a claim, Ms. Atlas

must allege that she was: (1) “intentionally treated differently from others similarly

situated”; and (2) “there is no rational basis for the difference in treatment.” Forgue

v. City of Chicago, 873 F.3d 962, 968 (7th Cir. 2017) (quoting Engquist v. Or. Dep’t of

Agric., 553 U.S. 591, 601–02 (2008)).

Turning to the first element, a plaintiff may make the showing of different

treatment by pointing to similarly situated individuals who are “identical or directly

comparable to the plaintiff in all material respects.” Reget v. City of La Crosse, 595

F.3d 691, 695 (7th Cir. 2010); see also Swanson, 719 F.3d at 784 (“In most class-of-

one cases, the comparison of similarly situated individuals will be used to infer

animus.”). “Whether a comparator is similarly situated is usually a question for the

fact-finder,” however, it is appropriate to dismiss a class-of-one claim at the pleading

stage if the plaintiff fails to allege that it was similarly situated to any comparators.

LaBella Winnetka, Inc. v. Vill. of Winnetka, 628 F.3d 937, 942 (7th Cir. 2010). Here,

Plaintiffs have not identified any similarly situated comparator. They allege only

that “the Village has routinely allowed residents to take emergency measures to

protect their homes and properties following significant damage either without a

permit or upon delivery of significantly less information than is typically required for

a standard permit” and that “[s]uch measures have included tarping roofs, boarding

windows and doors, and similar activities.” (Dkt. 11-1 ¶ 72). These activities are not

analogous to conducting structural work on a collapsing ravine. Plaintiffs have failed

to point to any other individuals who are in a directly comparable position to Ms.

Atlas, and have failed to satisfy the required showing of a similarly situated

individual.

In some cases, animus is so obvious, and the alleged actions are so egregious

that a similarly situated comparator need not be identified to show that the plaintiff

was treated differently. See, e.g., Swanson, 719 F.3d at 784 (where plaintiff showed

that town mayor bore ill will against the plaintiff, including allegations that the

mayor instigated a prosecution against him and accused him of being a drug dealer,

plaintiff did not need to present similarly situated comparators); Geinosky, 675 F.3d

at 748 (plaintiff did not need to show similarly situated comparator when officers

issued him twenty-four bogus parking tickets clearly showing animus). The facts of

this case, however, are not so egregious as to negate the requirement to show a

similarly situated comparator—Ms. Atlas alleges no direct evidence of hostility or

animus on the part of Village actors.

Count IV also fails on the second element—that there is no rational basis for

the Village’s action. A sufficient rational basis “does not have to be the one

lawmakers actually had in mind; it is enough that the basis is conceivable or

imaginable.” Alarm Detection Sys., Inc. v. Vill. of Schaumburg, 930 F.3d 812, 826

(7th Cir. 2019). “Once we identify a plausible basis for the legislation, our inquiry is

at its end.” Goodpaster v. City of Indianapolis, 736 F.3d 1060, 1071 (7th Cir. 2013).

Article XV of the Village Code pertains to Steep Slope Regulations. (Dkt. 11-2).

Section 9-116 of Article XV provides for certain plans and reports that must be

submitted prior to issuance of a permit for work on a slope impact area, including

designs created by engineers, subsoil investigations, a geotechnical stability analysis,

and more. Id. Section 9-117(d) of Article XV provides for emergency activity as

follows:

(d) Emergency activities. Nothing in this article shall prevent the village

from permitting development activities on an emergency basis when

deemed necessary by the Director to remediate an unstable or insecure

slope that presents an immediate threat to health, safety, and welfare,

or stability of an authorized building.

(1) Emergency development activity (including installation or

construction of structures) shall only be permitted provided that

the remedial action involves the least possible disruption of the

natural features of the site as possible and is in conformance with

the standards and policies of this article.

(2) Emergency development activity (including installation or

construction of structures) shall only be permitted to provide

remedial action that is the most reasonable action to address the

emergency situation under the circumstances.

(Dkt. 11-2). Plaintiffs argue that it is an irrational and arbitrary reading and

application of § 9-117(d) to allow the Village to require all the standard plans and

reports even in an emergency situation, and that such a requirement would render

§ 9-117(d) useless. Yet, § 9-117(d) is written in permissive language, emergency

activities are permitted “when deemed necessary” and, even then, only when

emergency development activity is “in conformance with the standards and policies”

of Article XV, which includes the requirements set forth in § 9-116 which Ms. Atlas

was asked to comply with, at least in part (she does not elaborate on what

supplemental information she was asked to provide, just that it was typically

required in non-emergency situations). (Dkt. 11-2 (emphasis added)).

The Village’s actions were in line with Article XV, and, on its face, Article XV

provides a rational basis for these actions. The statement of purpose for the article

at § 9-111(a) provides that the purpose of the article is to protect “public health,

safety, and welfare,” including by “encouraging appropriate engineering technology

to result in stable slopes” and “encouraging building techniques that increase slope

stability.” (Dkt. 11-2). Further, § 9-117 itself provides that its goal is to “provide for

long-term slope stability” to avoid adversely impacting “neighboring properties.”

(Dkt. 11-2). These are legitimate, rational bases for the Village’s actions here,

including its request for additional information before issuing the permit, in line with

§ 9-117(d). For this additional reason Count IV must be dismissed.

CONCLUSION

Plaintiffs have failed to state a claim under federal law. The Village’s motion

to dismiss is therefore granted. Counts III-V, as brought by Ms. Schwalbach, are

dismissed for lack of standing. Counts III and V, as brought by Ms. Atlas, for which

Plaintiffs have not contested dismissal, are dismissed with prejudice. Count IV, as

brought by Ms. Atlas, is dismissed without prejudice. The Court grants Ms. Atlas

leave to amend her complaint consistent with this Opinion, if possible, within 21 days

of the filing of this Opinion. If Plaintiffs choose not to amend the complaint or

otherwise fail to state a federal claim, the Court will decline to exercise supplemental

jurisdiction over the state-law claims and the case will be remanded back to state

court. See 28 U.S.C. § 1367(c)(8).

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Le fo a M. Kéndall

United States District Judge

Date: November 18, 2019

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