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Miller v. City of Monona

United States Court of Appeals, Seventh Circuit

May 1, 2015

STEPHANIE MILLER, et al., Plaintiffs-Appellants,
CITY OF MONONA, et al., Defendants-Appellees

Argued, January 6, 2015

Page 1114

Appeal from the United States District Court for the Western District of Wisconsin. No. 3:10-cv-00221. William M. Conley, Chief Judge.

Before FLAUM, WILLIAMS, and TINDER, Circuit Judges.


Page 1115

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, Wisconsin, and various public officials involved in their protracted effort to gain approval to build a condominium project. Miller spearheaded this effort, so for the sake of simplicity, we will use her name as shorthand for the other appellants unless 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 Miller had not pointed to any similarly situated development project that had been treated more favorably. Although Miller 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.


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 vacant for five years," and resubmitted her application as a request to build a 10-unit project.

Page 1116

The approval process dragged on throughout 2005. In February, Kachelmeier recommended site planners, architects, 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, Miller's architect again revised the plans and resubmitted them.

In early 2006, the project hit further snags. First, in January 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 Kachelmeier 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 oppose 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 asbestos. In July, her husband drove a truck filled with asbestos to a local landfill and completed the exterior asbestos removal. But that same month, David Nettum, an independent building 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 houses. She then obtained a permit allowing demolition through July 30, but shortly afterward, Mark Davis, from the Wisconsin 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 contractor 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 afterward, at a planning commission meeting, Mayor Kahl informed Miller that she would be required to erect a fence and warned her that a fine of $2,000 per day was being imposed for the code violations on her property, which he described 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 demolition. 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.

On August 4, 2006, Nettum provided Miller with a condemnation report that included photographs of the exterior and

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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 Management 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 confirm compliance with the DNR orders, but he was unavailable. 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 ...

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