Maiman Real Estate LLC v. Waupaca County
Filing
37
DECISION AND ORDER signed by Magistrate Judge William E Duffin on 10/24/17. IT IS THEREFORE ORDERED that Waupaca County's Motion for Partial Summary Judgment on the Equal Protection Claim of Maiman Real Estate is denied. (ECF No. 28 ). IT IS FU RTHER ORDERED that Waupaca County's Motion for Partial Summary Judgment for Permanent Injunction is denied. (ECF No. 28 ). IT IS FURTHER ORDERED that Maiman Real Estate's Request for Partial Summary Judgment to the Non-movant Party is denied. (ECF No. 19 ). (cc: all counsel) (mlm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MAIMAN REAL ESTATE, LLC,
Plaintiff,
v.
Case No. 16-CV-1025
WAUPACA COUNTY,
Defendant.
WAUPACA COUNTY
Plaintiff,
v.
Case No. 16-CV-1290
MAIMAN REAL ESTATE, LLC,
Defendant.
DECISION AND ORDER
I.
Introduction
Maiman Real Estate, LLC filed this lawsuit against Waupaca County in Waupaca
County Circuit Court regarding a parcel of land Maiman Real Estate purchased to use
as off-site parking for the Wheelhouse Restaurant. Because the property was in a
different zoning district than the restaurant and more than 500 feet away, Waupaca
County cited Maiman Real Estate for violating the Waupaca Zoning Code. Maiman Real
Estate alleges that Waupaca County has selectively enforced the zoning ordinance in
violation of the Fourteenth Amendment’s equal protection clause. Maiman Real Estate
also seeks a judgment declaring, among other things, that its use of the subject property
constitutes a lawful non-conforming use under the Zoning Code.
Separately, Waupaca County filed a lawsuit against Maiman Real Estate in
Waupaca County Circuit Court seeking an order finding that the subject ordinance is
valid and enjoining Maiman Real Estate from using the property as off-site parking for
the restaurant. Maiman Real Estate filed counterclaims that mirrored the claims it
asserted in the lawsuit it filed, including its claim under the equal protection clause of
the Fourteenth Amendment.
Both lawsuits were removed to federal court and subsequently consolidated.
(ECF No. 17.) Waupaca County now seeks partial summary judgment on Maiman Real
Estate’s equal protection claim. (ECF No. 20.) Additionally, Waupaca County separately
seeks summary judgment on its injunction claim. (ECF No. 30.)
In response to Waupaca County’s summary judgment motion on its injunction
claim, Maiman Real Estate not only opposes the motion but asks that summary
judgment be entered for it pursuant to Federal Rule of Civil Procedure 56(b). (ECF No.
31 at 2.) Rule 56(b) states, “Unless a different time is set by local rule or the court orders
2
otherwise, a party may file a motion for summary judgment at any time until 30 days
after the close of discovery.” Here, the court did set a deadline for filing summary
judgment motions: July 16, 2017. (ECF No. 12.) Maiman Real Estate did not file a
summary judgment motion by that date. Rule 56(b) does not apply here. Because
Maiman Real Estate’s request for summary judgment is untimely, it is denied.
The briefing on Waupaca County’s summary judgment motions is complete and
the motions are ready for resolution. All parties have consented to the jurisdiction of
this court. (ECF No. 3, 8.)
II.
Facts
Maiman Real Estate, LLC is a Wisconsin limited liability company located in
Waupaca, Wisconsin. (ECF No. 23, ¶ 8.) Its sole member is Jeff Maiman. (Id.) Maiman
Real Estate owns property located at E1209 County Road Q in Waupaca which it leases
to Wheelhouse Restaurant, Inc. (ECF No. 23, ¶ 13), of which Maiman is the sole
shareholder. (ECF No. 26, ¶ 32.) Wheelhouse Restaurant, Inc., operates the Wheelhouse
Restaurant on the leased property. (ECF No. 26, ¶ 33.) The Wheelhouse Restaurant is
located on property zoned “Rural Commercial—Neighborhood.” (ECF No. 23, ¶ 15.)
Waupaca County is a self-organized county in Wisconsin established pursuant to
the Wisconsin Constitution and Chapter 59 of the Wisconsin Statutes. (ECF No. 23, ¶ 9.)
Ryan Brown has been employed as Director of Waupaca County Department of
Planning and Zoning since September 2012. (ECF No. 26, ¶ 28.) His responsibilities
3
include coordinating and assisting with land use activities at the county level, including
applying and administering the county’s zoning codes and ordinances. (Id.)
In 2013 the Wheelhouse Restaurant began leasing a vacant residential parcel of
land located approximately 1,500 feet west of the restaurant. (ECF No. 33, ¶ 33.) The
property was owned by Cal Lehman (the “Lehman Property”) and was used by the
restaurant as off-site parking for employees of the restaurant. (Id.) Although it is not
clear from the parties’ submissions, it appears that the Lehman Property was zoned
“Sewered Residential.” (See ECF No. 26, ¶ 4, referring to the Lehman Property as a
vacant residential parcel of land; and ECF No. 31 at 21, stating that the Lehman
Property was zoned for sewered residential use.)
In December 2014 Maiman learned that property located at E1120 Pleasant Park
Lane in the city of Waupaca (the “Pleasant Park Property”) was listed for sale. (ECF No.
26, ¶ 5.) The Pleasant Park Property and the Lehman Property are adjacent to each
other, separated by County Road Q. (ECF No. 26, ¶ 7.) The Pleasant Park Property was
approximately four acres and was improved with a single family residence and
detached garage. (Id.) The Pleasant Park Property was zoned “Sewered Residential.”
(ECF No. 23, ¶ 12.)
Maiman engaged the services of a real estate broker, Ben Lyons, to contact the
Waupaca County Planning and Zoning Department to determine whether a portion of
the Pleasant Park Property could be used as off-site parking for employees of the
4
Wheelhouse Restaurant. (ECF No. 26, ¶ 6.) At the time, Section 5.0 of the Waupaca
County Zoning Code established various use classifications for properties subject to the
Zoning Code. (ECF No. 26, ¶ 3.) No use classification identified “off-street parking” or
“off-street parking facilities” as either a permitted or conditional use in the Zoning
Code. (Id.) Section 6.01 of the Zoning Code provided:
Section 5.0 broadly categorizes potential land uses in Waupaca County as
Permitted (P), or Conditional Use (C) within the Zoning Districts.
Definitions and additional requirements for these land uses are included
in Sections 6.05 through 6.10. The Planning & Zoning Director or Planning
and Zoning Committee will be required in some instances to provide
interpretation of these definitions in order to determine if a proposed use
is allowed in the applicable district. Land uses that are not specifically
listed are not necessarily excluded from locating within a given Zoning
District.
Waupaca County Zoning Ordinance Chap. 34, Sec. 6.01.
Lyons met with Brown and other employees of the Waupaca County Planning
Staff. (ECF No. 26, ¶ 7.) Brown advised that the use of Pleasant Park Property as off-site
parking was not specifically prohibited by the Zoning Code. (ECF No. 26, ¶ 8.)
In December 2014 Maiman and a business associate met with Brown to discuss
the proposed use of the Pleasant Park Property. (ECF No. 26, ¶ 9.) During the meeting
Maiman described the improvements that would be necessary to create an off-site
parking area. (ECF No. 26, ¶ 10.) Maiman told Brown that Maiman Real Estate would
not purchase the Pleasant Park Property unless a portion of the property could be used
by the Wheelhouse Restaurant for off-site parking. (Id.) Maiman says that Brown told
5
him at that meeting that the proposed use of the Pleasant Park Property would be
allowed under the terms of the Waupaca County Zoning Code. (ECF No. 26, ¶ 11.)
Brown says that he told Maiman only that the use of the property for off-site parking
was not specifically prohibited by the Zoning Code. (Id.)
In reliance on Brown’s statements, on January 4, 2015 Maiman Real Estate
submitted an offer to purchase the Pleasant Park Property for $282,680. (ECF No. 26,
¶ 12.) On April 2, 2015, Maiman Real Estate purchased the property. (ECF No. 26, ¶ 13.)
Immediately thereafter Maiman Real Estate entered into contracts to improve the
property, paying contractors over $26,000 for improvements. (ECF No. 26, ¶ 14.)
By early summer 2015 the Wheelhouse Restaurant began using the Pleasant Park
Property for off-site parking. (ECF No. 26, ¶ 15.)
On June 15, 2015, an employee of the Waupaca County Planning and Zoning
office was contacted by a neighbor of the Pleasant Park Property, James Koeper,
regarding the activity on the Pleasant Park Property. (ECF No. 26, ¶ 16.) Koeper was
advised of Brown’s decision that the use of the property for off-site parking was
permissible. (Id.) On June 23, 2015, Brown sent a letter to Koeper and his wife stating:
The parking lot in question and standalone parking lots in general are not
specifically dealt with in the Comprehensive Zoning Ordinance. That does
not mean, however, that they are not allowed. Section 6.01 in the zoning
ordinance states, “Land uses that are not specifically listed are not
necessarily excluded from locating within a given district.” This gives our
department the latitude necessary to apply some subjectivity where
specific regulations do not exist.
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The proposed parking lot, in our opinion, does not represent a departure
from future residential use nor does it conflict with the surrounding
residential uses. While the proposed parking lot will be an accessory to a
commercial use it could just as easily be an accessory to a residential use.
The fact that this particular parking lot will be associated with a
commercial use does not, in our opinion, justify a conditional permit. The
parking lot will, however, not be allowed to add any permanent
infrastructure that may inhibit future residential uses.
(ECF No. 24-5.)
Two days later a second letter was sent to the Koepers, this time signed by Brown
and Diane Meulemans, Corporation Counsel for Waupaca County. (ECF No. 24-6.) The
June 25, 2015 letter reiterated that, while parking lots “are not specifically addressed in
the Comprehensive Zoning Ordinance[,]” that fact did not mean that parking lots are
not allowed on property zoned residential. (Id.) Again referencing Section 6.01 of the
Waupaca County Code of Ordinances and the latitude it provided to the zoning
department to “apply some subjectivity where specific regulations do not exist[,]” the
letter stated, “The proposed parking lot, in our opinion, does not represent a departure
from future residential use nor does it conflict with the surrounding residential uses.”
(Id.)
On September 18, 2015, Brown sent a letter to Maiman Real Estate confirming
that the commercial off-site parking planned for the Pleasant Park Property “requires no
authorization via the Waupaca County Planning and Zoning Office or administrative
Committee’s permitting or rezone process in order to proceed.” (ECF No. 26, ¶ 23; ECF
No. 24-8.) It went on to state, “The Code of Ordinances, Chapter 34, does not clearly and
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unambiguously prohibit your intended project to be completed on the parcel, nor does
it clearly indicate a permit is necessary for the intended project.” (Id.)
On September 24, 2015, an appeal of the September 18, 2015 letter was filed with
the Waupaca County Board of Adjustment on behalf of other neighbors of the Pleasant
Park Property. (ECF No. 23, ¶¶ 21-22.)
Apparently in response to that appeal, Waupaca County engaged outside
counsel “to assist in the interpretation and application of the zoning ordinance.” (ECF
No. 22-2 at 23.) As a result of that review, on December 22, 2015, Brown sent a letter to
Maiman Real Estate informing it that, “[w]hile the zoning ordinance does not outright
prohibit the proposed employee parking lot, the lot cannot be permitted as a matter of
right. Therefore, this latter will serve as notice that the zoning ordinance does not
permit the use of the property … as a parking lot affiliated with The Wheelhouse
Restaurant.” (Id.; ECF No. 26, ¶ 19.) The letter further stated that the “Planning and
Zoning Office is in the process of proposing amendments to the existing ordinance,
which would make uses such as what you have proposed subject to a conditional use
permit.” (Id.)
On January 21, 2016, Maiman filed an appeal of the December 22, 2015 letter with
the Board of Adjustment. (ECF No. 23, ¶¶ 24-25.) Brown did not schedule a hearing on
Maiman’s appeal. (ECF No. 26, ¶ 25.)
8
On May 17, 2016, the Waupaca County Zoning Code was amended to create
Section 6.04(6). (ECF No. 26, ¶ 26.) Section 6.04(6) provides that “[o]ff-site parking that
is identified as a Conditional Use (C) in a Zoning District must be located within the
same zoning district as, and within 500 feet … of the property being served, and shall be
governed by the provisions of Sections 6.02 and 14.05 relating to Conditional Uses.”
(ECF No. 26, ¶ 26.) Section 6.01 was amended to delete any mention of the Planning &
Zoning Director having authority to interpret definitions and requirements for land
uses to determine if a proposed use is allowed in the applicable district. (ECF No. 26, ¶
27.) And whereas 6.01 had stated that “[l]and uses that are not specifically listed are not
necessarily excluded from locating within a given Zoning District” (ECF No. 26, ¶ 18),
the amended Section 6.01 now states that ”[a]ny use not identified as Permitted (P) or
Conditional (C) within a Zoning District is prohibited.”(ECF No. 26, ¶ 27.)
Immediately thereafter, on May 23, 2016, Brown sent a letter to Maiman stating
that the use of the Pleasant Park Property for off-site parking for Wheelhouse
Restaurant employees was a violation of new Section 6.04(6). (ECF No. 23, ¶ 29.) Brown
stated that the letter was “sent as a warning to cease and desist all actions related to the
use of this property as an off-site parking lot in contravention of the County Zoning
Ordinance. Failure to do so by May 28th will result in this office filing a demand for
prosecution with the County Corporation Counsel and appropriate enforcement
officials[.]” (Id.)
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On June 2, 2016, Waupaca County issued an ordinance citation to Maiman Real
Estate for violations of Waupaca County Zoning Ordinance, Chapter 34, Sections 5.0
and 6.04(6). (ECF No. 26, ¶ 37.) This litigation followed.
III.
Summary Judgment Standard
“The court shall grant summary judgment if the movant 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). A fact is “material” only if it “might affect the
outcome of the suit” and a dispute is “genuine” only if a reasonable finder of fact could
accept the non-moving party’s position and return a verdict in its favor. Anderson v.
Liberty Lobby, 477 U.S. 242, 248 (1986). In resolving a motion for summary judgment the
court is to “construe all evidence and draw all reasonable inferences from that evidence
in” favor of the non-movant. E.Y. v. United States, 758 F.3d 861, 863 (7th Cir. 2014) (citing
Gil v. Reed, 535 F.3d 551, 556 (7th Cir. 2008)); Del Raso v. United States, 244 F.3d 567, 570
(7th Cir. 2001). The “court may not make credibility determinations, weigh the
evidence, or decide which inferences to draw from the facts; these are jobs for a
factfinder.” Washington v. Haupert, 481 F.3d 543, 550 (7th Cir. 2007) (quoting Payne v.
Pauley, 337 F.3d 767, 770 (7th Cir. 2003)). “To survive summary judgment, the nonmovant must produce sufficient admissible evidence, taken in the light most favorable
to it, to return a jury verdict in its favor.” Fleishman v. Cont'l Cas. Co., 698 F.3d 598, 603
(7th Cir. 2012) (quoting Berry v. Chi. Transit Auth., 618 F.3d 688, 690-91 (7th Cir. 2010)).
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IV.
Analysis
A. Real party in interest
Rule 17(a) of the Federal Rules of Civil Procedure provides that “[a]n action must
be prosecuted in the name of the real party in interest.” Waupaca County argues that
Maiman Real Estate is not the real party in interest in the lawsuit it commenced for two
reasons. First, when it leased the Pleasant Park Property to Wheelhouse, Inc. to be used
for off-site parking, it “relinquished its substantive right to any claim involving the
Pleasant Park Property for off-site parking.” (ECF No. 20 at 11.) Second, on August 9,
2016 Maiman on behalf of Maiman Real Estate executed a quitclaim deed to transfer the
Pleasant Park Property to Pleasant Park, LLC. (ECF No. 20 at 11; ECF No. 26, ¶ 31 at 24.)
When it did so, “it relinquished its substantive right to any claim involving the Pleasant
Park Property[.]” (Id.)
Maiman Real Estate responds by pointing out that Waupaca County asserts no
authority for the proposition that the owner of a piece of land “relinquishes” its right to
pursue causes of action related to that land when it leases the land to someone else.
(ECF No. 25 at 30-31.) As to Waupaca County’s second argument, Maiman Real Estate
says that it owned the property at the time the citation was issued and when it filed this
lawsuit, and it did not transfer its causes of action in this litigation to Pleasant Park,
LLC. (Id. at 31.) It argues that under Rule 25(c) of the Federal Rules of Civil Procedure
the action may be continued by the original party. (Id.)
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To have standing a plaintiff must allege an actual case or controversy within the
meaning of Article III. Warth v. Seldin, 422 U.S. 490, 498 (1975). This requires
demonstrating that plaintiff has suffered an injury in fact – an invasion of a legally
protected interest which is (a) concrete and particularized and (b) actual or imminent,
not conjectural or hypothetical. Spokeo, Inc. v. Robins, __ U.S. __, ___, 136 S. Ct. 1540,
1548, 194 L.Ed.2d 635 (2016). The injury in fact must be fairly traceable to the challenged
conduct of the defendant and likely to be redressed by a favorable judicial decision. Id.
at 1547. The plaintiff must assert his own legal right, as opposed to legal rights of a third
party. Massey v. Helman, 196 F.3d 727, 739 (7th Cir. 1999). “A person who has been
adversely affected by discrimination has suffered injury-in-fact; the differential
treatment is the cause of his injury; and that injury can be redressed either by damages
or injunctive relief.” Del Marcelle v. Brown County Corp., 680 F.3d 887, 908 (7th Cir. 2012).
To determine standing as the real party in interest the court looks to applicable
state substantive law. American Nat. Bank and Trust Co. of Chicago v. Weyerhaeuser Co., 692
F.2d 455, 459 (7th Cir. 1982). The traditional real party in interest test focuses on the
source and “ownership” of the legal right asserted. Apter v. Richardson, 510 F.2d 351,
353 (7th Cir. 2000). If a party is found to have standing to raise a constitutional issue, no
“party in interest” objections are valid. Id.
Maiman Real Estate purchased the Pleasant Park Property for nearly $300,000
specifically so it could use the property for off-site parking for Wheelhouse Restaurant
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employees. It then invested another $26,000 to improve the property so it could be used
for such parking. Maiman Real Estate was the subject of the citation. It filed this lawsuit
before it quit claimed the property to Pleasant Park, LLC, and did not transfer the
causes of action asserted in this lawsuit to that entity. Even though it subsequently quit
claimed its interest in the property to Pleasant Park, LLC, it plausibly suffered injuries
during its ownership such that under Rule 25(c) it may continue to prosecute this
action.
Indeed, in the lawsuit it filed seeking injunctive relief for violating the ordinance,
the party sued by Waupaca County was Maiman Real Estate, not the entity to which
Maiman Real Estate leased the property (Wheelhouse Restaurant, Inc.) or the entity to
which it later quit claimed the property (Pleasant Park, LLC). Thus, as pointed out
below, Waupaca County’s argument that Maiman Real Estate is not the real party in
interest conflicts with its effort to seek injunctive relief against that entity. Having said
that, to the extent Maiman Real Estate’s complaint seeks prospective relief or damages
for events occurring after its transfer of the property, such relief might be properly
awarded only to Pleasant Park, LLC, in which case an amended complaint would be
necessary to add Pleasant Park, LLC as a plaintiff.
B. Vested Rights
Waupaca County has not sought summary judgment on the first cause of action
in Maiman Real Estate’s complaint. In that cause of action Maiman Real Estate alleges
13
that it possesses a vested right to use the Pleasant Park Property as a parking lot based
on the representations made by Director Brown and Corporation Counsel, in addition
to the substantial investment made in the property and the financial loss it will suffer if
precluded from using the property in the manner discussed prior to the investment.
(ECF No. 1-1 at 10-12.) It seeks a judgment declaring, among other things, that the use
of the Pleasant Park Property for off-site parking for employees of the Wheelhouse
Restaurant constitutes a legal non-conforming use. (ECF No. 1-1, ¶ 31(2).)
In its brief in support of its motion for partial summary judgment on Maiman
Real Estate’s equal protection claim, Waupaca County argues that Maiman Real Estate
cannot establish a vested right in the use of the Pleasant Park Property. But the vested
rights analysis is relevant to the declaratory judgment claim, framed in the complaint
under state law, not the equal protection claim that is the subject of Waupaca County’s
summary judgment motion.
Because Waupaca County seeks summary judgment only on the equal protection
claim, its argument on vested rights is misplaced. The court need not determine as part
of the summary judgment motions whether Maiman Real Estate has a vested right to
use the Pleasant Park Property. And in any event, as discussed below with respect
Waupaca’s motion for summary judgment regarding its claim for injunctive relief,
genuine disputes of material fact preclude summary judgment.
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C. Equal Protection
At or around the time Section 6.04(6) became effective Brown created a list of six
properties, including the Wheelhouse Restaurant, using off-site parking that did not
conform with the provisions of the newly-adopted Section 6.04(6) (that is, the property
used for off-site parking was in a different zoning district than, and more than 500 feet
from, the property it was serving). As to four of the properties, Brown testified at his
deposition that they were not issued citations because they had used off-site parking for
more than ten years and, as such, any violation of Section 6.04(6) was outside the statute
of limitations for prosecution for an ordinance violation. As to the fifth property, a camp
owned by the Boys & Girls Brigade Association Inc., no citation was issued because the
camp is on an island and off-site parking is (apparently necessarily) located on the
mainland. (ECF No. 23, ¶¶ 43-44.)
In its complaint Maiman Real Estate alleges that Waupaca County’s issuance of a
cease and desist order, followed by a citation, to it but not to these other businesses
constitutes selective enforcement of the Waupaca County Zoning Code. (ECF No. 1-1,
¶¶ 34-35.) Such selective enforcement deprives Maiman Real Estate of equal protection
of the law as guaranteed under the 14th Amendment of the United States Constitution.
(Id., ¶ 36.)
In moving for summary judgment on the equal protection claim, Waupaca
County argues that there is no evidence that it “intentionally, systematically, and
15
arbitrarily discriminated” against Maiman Real Estate. (ECF No. 20 at 20.) It states that
“[t]he circumstances involved in the use of the Pleasant Park Property by the
Wheelhouse restaurant as off-site parking are not identical in all relevant respects to the
circumstances involved in the use of properties as off-site parking by other businesses
located in Waupaca.” (Id. at 24.) Maiman Real Estate cannot show that it has been
treated differently than other similarly situated businesses because there are no
similarly situated businesses. (Id.)
In response Maiman Real Estate contends that the circumstances surrounding the
amendment of the Zoning Code and its application to the property used by the
Wheelhouse Restaurant as off-site parking establish that it was intentionally and
arbitrarily treated differently than other property owners. Among other things it points
to the fact that the Lehman Property as recently as May 29, 2016, was used for parking
by a business located adjacent to the Wheelhouse Restaurant. (ECF No. 26, ¶ 37.) And
while it may be true that the children’s camp is on an island, that fact without more
does not justify treating it differently from the Wheelhouse Restaurant. (ECF No. 25 at
28.) As to the other four properties, each day the property is used as a parking lot it
counts as a separate violation of the zoning ordinance. (ECF No. 25 at 29.) Thus, the
statute of limitations would bar only those violations that are beyond the limitations
period.
16
The Equal Protection Clause of the Fourteenth Amendment 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 Crosse, 595 F.3d 691, 695 (7th Cir. 2010). A plaintiff must establish that (1) a
state actor has intentionally treated him differently than others similarly situated, and
(2) no rational basis exists for the difference in treatment. Id. (citing Vill. of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000)). “The persons alleged to have been treated more
favorably must be identical or directly comparable to the plaintiff in all material
respects.” Id.
“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
look to the treatment of similarly situated individuals, particularly what was done in
the investigation or prosecution of others in similar circumstances. Swanson, 719 F.3d at
784 (citing Geinosky v. City of Chicago, 675 F.3d 743, 748 (7th Cir. 2012)). Generally,
whether individuals are similarly situated is a fact question reserved for the jury.
McDonald v. Vill. of. Winnetka, 371 F.3d 992, 1002 (7th Cir. 2004). However, summary
judgment may be granted when it is clear that no reasonable jury could find the
similarly situated requirement has been met. McDonald, 371 F.3d at 1002.
17
To begin with, in its summary judgment brief Waupaca County states that it “did
not issue citations to Clear Water Harbor Bar & Grill, Bear Lake Campground, the Iola
Car Show, and the Symco Threshery for violations of Section 6.04(6) because those
businesses had utilized off-site parking located more than 500 feet from the property
being served for more than ten years prior to the amendment of the Waupaca County
Zoning Ordinance.” (ECF No. 20 at 22.) However, it did not include this statement in a
proposed finding of fact. As a result, that fact is not properly before the court on
Waupaca County’s summary judgment motion. See Civ. L.R. 56 (b)(1)(C).
But even if the court were to consider this factual assertion, a reasonable finder of
fact could conclude that Maiman Real Estate is similarly situated to one or more
properties that Brown identified as also not conforming with the provisions of the
newly-adopted Section 6.04(6). Genuine issues of material fact also exist as to whether a
rational basis exists for Waupaca County treating the other properties differently than it
treated Maiman Real Estate—that is, citing Maiman Real Estate for violating Section
6.04(6) but not citing the other non-conforming property owners.
For example, it appears that the Lehman Property is similarly situated to the
subject property, and Waupaca County concedes that as recently as May 2016 it was
used for overflow parking for an entertainment business located adjacent to the
Wheelhouse Restaurant. (ECF No. 26, ¶ 37.) Yet it does not appear that any citation was
issued to the owner of that property, and no explanation is given for why that is so.
18
Then there are the four properties that Waupaca County asserts were not cited
because their use began beyond the statute of limitations. It contends that the statute of
limitations is 10 years because “[n]o other statute of limitation applies to the
prosecution of a county ordinance violation.” (ECF No. 20 at 23.) That appears to be
incorrect. A separate statute states that the statute of limitations for a county ordinance
violation is two years. Wis. Stat. § 893.93(2)(b). But, more importantly, Waupaca County
has not demonstrated that any statute of limitations bars enforcement action when the
ordinance violation is ongoing. See City of Madison v. Crossfield, 2003 WI App 225, ¶23,
267 Wis. 2d 961, 671 N.W.2d 717 (unpublished) (“The statute of limitation for
prosecution of a municipal ordinance violation is two years. Wis. Stat. § 893.93(2)(b).
The statute does not run from the first day of a continuing violation, however, but from
the day such a violation ceases.”); see also City of Milwaukee v. Leavitt, 31 Wis.2d 72, 142
N.W.2d 169 (1966) (refusing to apply estoppel against the City enforcing its zoning
ordinance against nearly two decades of nonconforming use). Notably, Waupaca
County alleges in its complaint that each day the violation continues is a separate
offense. (Case No. 16cv1290, ECF No. 1-1, ¶¶ 12, 42.) If Waupaca County was not
actually precluded from prosecuting the other properties for their non-compliance with
the ordinance, the finder of fact could conclude that its stated reason for citing Maiman
Real Estate but not these other property owners was pretextual.
19
Thus, the court will deny Waupaca County’s motion for summary judgment on
Maiman Real Estate’s equal protection claim.
D. Injunctive Relief
Waupaca County separately seeks partial summary judgment in the lawsuit it
brought seeking a permanent injunction against Maiman Real Estate, enjoining it from
using the Pleasant Park Property as off-site parking for the Wheelhouse Restaurant. It
states that Maiman Real Estate’s use of the property for off-site parking violates Section
6.04(6) of the Waupaca County Zoning Ordinance, admittedly enacted after Maiman
Real Estate purchased the property for the purpose of using it for off-site parking for
the restaurant. It argues that there are no compelling equitable reasons for denying its
request for a permanent injunction.
In response, Maiman Real Estate argues that the use of the Pleasant Park
Property for off-site parking constitutes a legal nonconforming use. Specifically, it
contends that its use of the Pleasant Park Property for off-site parking was lawful
because it was authorized and approved by Brown in accordance with the authority
granted him by the then-current version of Section 6.01 of the Zoning Code. And the
use of the property for off-site parking was active and actual for nearly a year prior to
the amendment of the Zoning Code. As a legal nonconforming use, Wis. Stat.
§ 59.69(10)(am) protects the continued use of the property for off-site parking.
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For starters, Waupaca County’s argument that it is entitled to injunctive relief
against Maiman Real Estate conflicts with its argument that Maiman Real Estate is not
the real party in interest. If Maiman Real Estate is not the real party in interest either
because it has leased the property to Wheelhouse Restaurant, Inc. or because it has quit
claimed its interest in the property to Pleasant Park, LLC, a permanent injunction
against Maiman Real Estate would be meaningless (if it could be entered at all). Despite
its “real party in interest argument,” Waupaca County did not sue Wheelhouse
Restaurant, Inc. or Pleasant Park, LLC; it sued Maiman Real Estate. And it is Maiman
Real Estate that Waupaca County’s complaint alleges is continuing to violate the
Waupaca County Zoning Ordinances by using the subject property for off-site parking.
(Case No. 16cv1290, ECF No. 1-1, ¶ 31.)
As noted above, the court rejects the argument that Maiman Real Estate lacks the
ability to pursue this action, at least as it relates to what occurred while it owned the
property. But when it comes to prospective relief, such as a permanent injunction
regarding the future use of the property, it seems that the current owner of the
property, Pleasant Park, LLC, would be the proper defendant. The court acknowledges
that under Fed. R. Civ. P. 65(d)(2)(C) “other persons who are in active concert or
participation with” a party might also be bound by the injunction. Given the
relationship between Maiman Real Estate and Pleasant Park, LLC, the latter might
plausibly be bound by a permanent injunction issued against Maiman Real Estate. But it
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seems illogical to enjoin a party with respect to a property in which it no longer has an
ownership interest.
Passing that not insignificant issue, Waupaca County has not demonstrated that
it is entitled to an injunction at this stage of the lawsuit against Maiman Real Estate or
non-party Pleasant Park, LLC. Waupaca County has not demonstrated that the use of
the property as a parking lot was unlawful prior to the passage of the Section 6.04(6). If
Maiman Real Estate’s use of the property as a parking lot was lawful prior to the
passage of the ordinance, and it acquired a vested interest in this use, then its continued
use was lawful as a legal nonconforming use under Wis. Stat. § 59.69(10)(am), see Town
of Cross Plains v. Kitt's "Field of Dreams" Korner, Inc., 2009 WI App 142, ¶1, 321 Wis. 2d
671, 775 N.W.2d 283, and Waupaca County would not be entitled to an injunction
enjoining its future use. A genuine dispute of material fact exists as to whether Maiman
Real Estate acquired a vested interest to use the property as a parking lot prior to the
passage of Section 6.04(6).
IT IS THEREFORE ORDERED that Waupaca County’s Motion for Partial
Summary Judgment on the Equal Protection Claim of Maiman Real Estate is denied.
IT IS FURTHER ORDERED that Waupaca County’s Motion for Partial
Summary Judgment for Permanent Injunction is denied.
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IT IS FURTHER ORDERED that Maiman Real Estate’s Request for Partial
Summary Judgment to the Non-movant Party is denied. The court’s deputy clerk shall
set a telephonic scheduling conference to discuss further scheduling in this matter.
Dated at Milwaukee, Wisconsin this 19th day of October, 2017.
_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge
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