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Nathan Benjamin Myers v. City of Chicago

September 12, 2012


The opinion of the court was delivered by: Judge John J. Tharp, Jr.


Nathan Benjamin Myers purchased a house in Chicago in the hopes of renting it to the Loyola University chapter of Sigma Pi Fraternity. The applicable zoning regulation restricts use of the house by a fraternity, so City officials told him he could not go through with his plan without obtaining a special use permit. Claiming that Sigma Pi's occupancy would not make the property a frat house, but a monastery, Myers took them to court instead. After dismissing some of his claims, the Court allowed discovery to proceed on Myers's equal protection claim while staying discovery on his claim that city inspectors conducted an illegal search of the property in violation of the Fourth Amendment. Before the Court now are the parties' cross-motions for summary judgment on the equal protection claim, as well as the defendants' motion to strike Myers's statement of undisputed facts. See L.R. 56.1(a)(3).

First, the Court grants the motion to strike. Generally, this Court agrees that motions to strike are disfavored in summary judgment proceedings. E.g., Indep. Trust Corp. v. Fidelity Nat. Title Ins. Co. of New York, 577 F. Supp. 2d 1023, 1052 (N.D. Ill. 2008). This case is the exception; the defendants had little alternative because Myers's statement is not amenable to the responsive statement required by the local rules.

Myers's extensive fact statement violates Federal Rule of Civil Procedure 56(c) and Local Rule 56.1 in nearly every way possible. At 34 pages and well over 100 often lengthy paragraphs that are not numbered consecutively, it is far from the "concise" statement of "material" facts that is required. Multiple purported facts, peppered with argument, are stated within each paragraph, and many pertain to matters far outside the scope of Myers's claim, such as his childhood experiences with anti-Semitism. The statement relies on purported evidence that lacks any foundation and much of which is irrelevant, hearsay, or both. It cites to entire exhibits (only some of which exist) and not to specific pages or paragraphs. There is simply no way for the defendants to respond as required or for the Court to sift out any truly material facts that are properly supported, even if it were inclined to do so.

Even pro se litigants must comply with the Local Rules. United States v. 5443 Suffield Terrace, 607 F.3d 504, 510 (7th Cir. 2010); Greer v. Board of Educ., 267 F.3d 723, 727 (7th Cir. 2001). Anyway, Myers is a licensed attorney and an active member of the bar-indeed, he is a member of both the General and Trial Bars of the Northern District.*fn1 In response to the motion to strike, Myers says that he "doesn't practice much," Doc. 102 ¶ 1, but he still represents clients occasionally, so he is entitled to less latitude than other pro se litigants. See 5443 Suffield Terrace, 607 F.3d at 510 (pro se plaintiff was lawyer). For similar reasons, the Court also denies Myers's request, in response to the motion to strike, for additional time to file conforming statements. Myers received three extensions of time already, and after finally filing his summary judgment response, he later obtained leave to file instanter a corrected statement of facts. Moreover, Myers did not merely stumble on a technicality; his Rule 56.1 response is not even in the ballpark of what is required. See Greer, 267 F.3d at 727. No further delay is warranted for him to undertake the process from scratch. Because Myers failed to comply with the Local Rules for disputing the defendants' statement of facts and submitting additional facts of his own, the Court deems admitted in its entirety the defendants' statement of undisputed material facts*fn2 and strikes Myers's additional fact statement in full. See id.; Waldridge v. American Hoechst Corp., 24 F.3d 918, 924 (7th Cir. 1994).

The defendants set forth the following facts, which even though admitted, the Court nevertheless views in the light most favorable to Myers, the non-moving party. The Court also relies on admitted facts from the pleadings to provide context.*fn3 Myers purchased a parcel including a house at 1102 West North Shore Avenue in Chicago (the "Property") on September 12, 2008. The Property is, and was at that time, zoned RT-4, one of the residential classifications under Chicago's zoning ordinance. The RT-4 classification permits, as of right, certain types of "group living" uses; others are special uses that require a permit. Fraternities and sororities are a "group living" use, and under the RT-4 classification, "group living not otherwise classified" is a special use. Fraternities and sororities were once a permitted use, but an amendment to the zoning ordinance designated them as special uses in 1970-when the classification that became RT-4 in 2004 was still known as "R4." Convents and monasteries, by contrast, are group living uses that are permitted outright in RT-4 areas, along with certain types of group shelters and assisted living facilities. Under § 17-17-0102-A of the zoning ordinance, a "convent or monastery" is defined as housing for "persons (such as nuns or monks) under religious vows."

Alpha Delta Gamma Fraternity ("ADG") has a house at 1230 West North Shore Avenue, just up the street from the house Myers purchased in 2008. ADG acquired its property in 1969, when fraternities were a permitted use in what was then the R4 district. The ADG house now has the same RT4 zoning classification as Myers's property. ADG does not have a special use permit; rather, the fraternity is a legal nonconforming use under the zoning ordinance's grandfather clause, Mun. Code of Chicago §17-15-0300, which preserves the validity of a use permitted at its inception when a later amendment would otherwise limit or prohibit the use.

Myers began negotiating a lease with Sigma Pi shortly after purchasing the property. However, his alderman, Joe Moore, told him that he needed a special use permit. He also let Myers know in no uncertain terms that he objected to the project and would object to any special use permit. Myers disagreed that the zoning ordinance required a special use permit. On multiple occasions, he tried to convince the alderman, the City's Zoning Administrator, and lawyers for the City, among others, that occupied by Sigma Pi, the Property would most properly be viewed as a "monastery" because the fraternity's mission statement (or "vow," as Myers calls it) is "In the Service of God and Man." Myers did not get far with any of them, and he was told that if he went ahead with his plan without a permit, legal action would be taken. Ultimately, Myers never executed a lease with Sigma Pi. He also did not seek a special use permit, which entails applying to the Zoning Administrator, who makes a recommendation to the Zoning Board of Appeals, the final decision-making authority on applications for special uses.*fn4

As relevant to the current motions, Myers alleges that the defendants-Alderman Moore, Zoning Administrator Scudiero, and the City of Chicago-violated his constitutional right of equal protection by taking the position that he needed a special use permit to lease the Property to Sigma Pi when the nearby ADG house does not have a special use permit. Myers continues to dispute that the fraternity would be a special use; he maintains that, with Sigma Pi in residence, the Property is best viewed as an allowed "monastery."

In support of summary judgment, the defendants argue that Myers is not similarly situated to ADG and therefore cannot base his equal protection claim on the disparate treatment of ADG's house and the Property. The defendants further argue that, in any case, Myers cannot show that the defendants lacked a rational basis for declining to adopt Myers's interpretation of the zoning ordinance that treats his prospective tenants as a religious order.

Summary judgment is appropriate if the record shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, 547 (7th Cir. 2011). When a summary judgment motion is submitted and supported by evidence as provided in Rule 56(c), the nonmoving party may not rest on mere allegations or denials in its pleadings, but "must set forth specific facts showing that there is a genuine issue for trial." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)).

Myers's 11-page response brief largely fails to engage with the defendants' arguments and does not cite a single case or other legal authority. There is little to go on, and the Court would be within its rights in deeming Myers's arguments waived for failure to sufficiently develop them. See Echo, Inc. v. Timberland Machines & Irr., Inc., 661 F.3d 959, 967 (7th Cir. 2011). However, the Court has endeavored to set forth Myers's arguments where possible and resolve his claim on the merits.

The Equal Protection Clause prohibits state action that discriminates on the basis of membership in a protected class or that irrationally targets an individual for discriminatory treatment as a so-called "class of one." Reget v. City of La Cross, 595 F.3d 691, 695 (7th Cir. 2010). Myers alleges discrimination on the class-of-one theory, the precise contours of which remain somewhat opaque in this circuit in the wake of Del Marcelle v. Brown County Corp., 680 F.3d 887 (7th Cir. 2012) (en banc). At a minimum, though, Myers must show that he was arbitrarily or irrationally targeted for unfavorable treatment. See id. at 889, 913; Reget, 595 F.3d at 695. In other words, class-of-one discrimination occurs if the plaintiff "has been intentionally treated differently from others similarly situated and . . . there is no rational basis for the difference in treatment." Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).

Myers fails to establish that there is any genuine issue of material fact as to these elements. First, Myers does not establish that he is similarly situated to any property owner who was treated differently. "[S]imilarly situated individuals must be very similar indeed." McDonald v. Vill. of Winnetka, 371 F.3d 992, 1002 (7th Cir.2004); see Harvey v. Town of Merrillville, 649 F.3d 526, 531 (7th Cir. 2011); LaBella Winnetka, Inc. v. Vill. of Winnetka, 628 F.3d 937, 942 (7th Cir.2010). Under this standard, Myers's attempt to compare himself with ADG fails. The admitted facts show that the ADG house began as a permitted use in 1969 and remained a valid use by operation of the grandfather clause after the later ...

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