Jensen et al v. Village of Mount Pleasant et al

Filing 28

ORDER signed by Judge Lynn Adelman on 5/2/18. IT IS ORDERED that defendants' motion to dismiss plaintiffs' first amended complaint or, in the alternative, to stay these proceedings 16 is GRANTED in part as discussed and otherwise DENIED. IT IS FURTHER ORDERED that, on defendants' motion to dismiss and pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), this case is DISMISSED without prejudice. IT IS FURTHER ORDERED that all other pending motions 3 , 9 , 17 , and 21 are DENIED. (cc: all counsel) (jad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RODNEY JENSEN et al.,
Plaintiffs,
v.

Case No. 18-C-0046

VILLAGE OF MOUNT PLEASANT et al.,
Defendants.

DECISION AND ORDER
In 2017, the Village of Mount Pleasant entered into a development agreement
requiring it to acquire private property for the construction and operation of
manufacturing facilities that Foxconn Technology Group, a private company, plans to
use to produce liquid crystal displays for consumer electronic devices like televisions.
Rodney Jensen and other owners of property subject to acquisition under the terms of
the development agreement bring this lawsuit against Mount Pleasant, Village President
David DeGroot, and the Village of Mount Pleasant Community Development Authority
alleging past, ongoing, and threatened violations of their federal constitutional rights. 42
U.S.C. § 1983. Jensen and his fellow plaintiffs seek declarations that the development
agreement and defendants’ conduct are unconstitutional and orders enjoining
defendants from continuing to infringe their rights. Defendants move to dismiss the case
arguing, among other things, that plaintiffs’ claims are not yet “ripe” for consideration in
federal court. Before considering defendants’ arguments for dismissal, I briefly describe
the asserted legal bases and supporting factual allegations for plaintiffs’ claims.

I. BACKGROUND
Plaintiffs assert claims under the Fifth Amendment’s takings clause and the
Fourteenth Amendment’s equal protection and due process clauses. The takings clause
bars the government from taking private property unless (1) the taking is for a “public
purpose” and (2) the government provides “just compensation” to the property owner.
The equal protection clause prohibits intentional and arbitrary discrimination by
government officials. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (quoting
Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 445 (1923)). And the due
process clause, as a “substantive” matter, forbids abuses of governmental power that
are so arbitrary and oppressive that they shock the conscience. Catinella v. Cook
County, 881 F.3d 514, 519 (7th Cir. 2018).
In support of their claims, plaintiffs allege that defendants plan to take their
properties in order to sell or lease them to Foxconn for its private use. They allege that,
to facilitate these takings, defendants first plan to take a strip of land from each of their
properties, which abut major area roads; expand those roads, primarily for Foxconn’s
use and benefit; cut off their existing driveways; and prevent them from building new
driveways connected to the expanded roads. Plaintiffs allege that defendants plan to
use this “landlocking scheme” to “blight” their properties in order to circumvent a statelaw prohibition on condemnation of “not blighted property” that “the condemnor intends
to convey or lease . . . to a private entity.” See Wis. Stat. § 32.03(6)(b).
Plaintiffs further allege that defendants are treating them much worse than their
neighbors. For one thing, plaintiffs say, defendants are not planning to carry out their
landlocking scheme against all of the properties Mount Pleasant is contractually

2

obligated to acquire for the Foxconn development, nor are they planning to acquire all of
those properties through condemnation. Rather, plaintiffs allege that defendants have
offered generous “option packages” to the owners of numerous other properties, for
which they will receive (and, in many cases, already have received) up to ten times the
fair market value of their properties. Plaintiffs say they have been offered as little as 1.4
times the value of their properties to sell and otherwise face condemnation.
Finally, plaintiffs allege that defendants’ made a rushed and careless decision to
approve and facilitate the Foxconn development. Specifically, plaintiffs say that
defendants shirked their responsibility to rigorously assess the environmental impact of
the development, thereby depriving them and other property owners in the area of
public protection from private environmental harms.
II. DISCUSSION
Defendants move to dismiss plaintiffs’ claims primarily arguing that they are not
ripe for adjudication, which simply means that it is too soon for a federal court to
consider them. See Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 807–08
(2003) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148–49 (1967)); Flying J Inc. v.
City of New Haven, 549 F.3d 538, 544 (7th Cir. 2008); Fed. R. Civ. P. 12(b)(1).
Defendants also argue that plaintiffs’ allegations about their decision making process
and failure to produce an environmental impact statement for the Foxconn project fail to
state a claim upon which relief can be granted, meaning that even if those allegations
are true, plaintiffs are not entitled, as a result of them, to any relief that this court can
provide. See Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009); Fed. R. Civ. P. 12(b)(6).

3

A. Ripeness
The ripeness doctrine requires federal courts to “avoid[] . . . premature
adjudication” of claims, which can run afoul of “Article III limitations on judicial power”
and “prudential reasons for refusing to exercise jurisdiction.” Nat’l Park Hosp. Ass’n, 538
U.S. at 807–08 (quoting Abbott Labs., 387 U.S. at 148; Reno v. Catholic Soc. Servs.,
Inc., 509 U.S. 43, 57 n.18 (1993)). Courts apply different ripeness standards to different
types of claims, depending on the circumstances presented, so I must first determine
which standard applies to each of plaintiffs’ claims and then assess whether each claim
is ripe under the applicable standard.
1. Takings Claims
In general, claims asserted under the Fifth Amendment’s takings clause are
subject to the ripeness standard described by the Supreme Court in Williamson County
Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).
Under Williamson County, a claim is not ripe until the government entity responsible for
the taking in question has made a “final decision” about the taking and the property
owner has “exhausted” all available state procedures for challenging the taking. See
Peters v. Village of Clifton, 498 F.3d 727, 732 (7th Cir. 2007) (citing Forseth v. Village of
Sussex, 199 F.3d 363, 372 (7th Cir. 2000)).
Plaintiffs argue that, although Williamson County applies to some takings claims,
it does not apply to claims, like theirs, that are based on the Fifth Amendment’s “public
use” requirement. Many federal circuit courts of appeals agree. See Fideicomiso De La
Tierra Del Caño Martin Peña v. Fortuño, 604 F.3d 7, 16 (1st Cir. 2010) (collecting
cases). But unlike those courts, the Seventh Circuit has consistently held that

4

Williamson County applies to all claims under the takings clause, including those
“alleging a taking for private purpose.” See Daniels v. Area Plan Comm’n of Allen Cty.,
306 F.3d 445, 453 (7th Cir. 2002) (citing Forseth, 199 F.3d at 370; Covington Court, Ltd.
v. Village of Oak Brook, 77 F.3d 177, 179 (7th Cir. 1996)).
Plaintiffs’ allegations that defendants plan to blight their properties under the
guise of road expansion and then take their properties for Foxconn’s private use or
benefit give rise to Fifth Amendment takings claims, which are subject to Williamson
County in this circuit. Plaintiffs do not dispute that defendants have not actually
implemented their alleged plans—by, for example, commencing condemnation
proceedings against plaintiffs’ properties—so plaintiffs cannot have pursued, much less
exhausted, their available state remedies for challenging those takings. Therefore,
plaintiffs’ Fifth Amendment claims are not ripe, and I must dismiss them.
2. Equal Protection Claims
Williamson County’s ripeness requirements apply to claims asserted under the
Fourteenth Amendment’s equal protection clause that are “merely re-labeled” takings
claims. Patel v. City of Chicago, 383 F.3d 569, 573 (7th Cir. 2004). For example, in
Patel, the Seventh Circuit held that an “equal protection” claim was actually a re-labeled
takings claim where (1) the harm alleged was “depressed property values” due to
planned government action (a kind of taking), (2) the plaintiffs primarily sought to enjoin
the defendant municipality from using its condemnation powers, and (3) the court could
not discern “the precise sort of equal protection claim” the plaintiffs were asserting. See
Flying J, 549 F.3d at 544–45 (discussing Patel, 383 F.3d at 572–74).

5

Plaintiffs’ “equal protection” claims challenging defendants’ alleged plans to blight
their properties, but not other similar properties, and take them for a private purpose are
comparable to those discussed in Patel in that plaintiffs’ alleged injuries are threatened
takings and they primarily seek to enjoin defendants from using Mount Pleasant’s
condemnation powers to carry out those takings. Also, as in Patel, I cannot discern
whether plaintiffs are alleging that defendants’ conduct violates the equal protection
clause because it “rests on wholly irrational distinctions” or because it amounts to “a
spiteful effort to ‘get’ [them] for reasons wholly unrelated to any legitimate state
objective.” Patel, 383 F.3d at 572 (quoting Esmail v. Macrane, 53 F.3d 176, 180 (7th
Cir. 1995)). Either is a legitimate basis for an equal protection claim—and a plaintiff can
allege alternative bases for a claim—but the nebulous nature of these claims, viewed in
light of the injuries asserted and the relief requested, suggests that these “equal
protection” claims are merely re-labeled takings claims that are, therefore, subject to
Williamson County. Because plaintiffs have not exhausted their state remedies with
respect to these claims, as Williamson County requires, I must dismiss them.
Unlike with merely re-labeled takings claims, federal courts generally do not need
to postpone consideration of “bona fide equal protection claims” under Williamson
County. Forseth, 199 F.3d at 370–71. Bona fide equal protection claims are those that
legitimately challenge unequal treatment by the government. Hager v. City of West
Peoria, 84 F.3d 865, 870 (7th Cir. 1996). Plaintiffs’ equal protection claims challenging
defendants’ alleged practice of offering to buy some properties subject to the
development agreement for as much as ten times their value while offering to buy
plaintiffs’ properties for no more than 1.4 times their value “would evaporate if

6

[defendants] treated everyone equally,” which “indicates that plaintiffs claim unequal
treatment.” Id. Thus, these claims are ripe for adjudication.
Plaintiffs’ equal protection claims challenging defendants’ allegedly deficient
decision making process and failure to produce an environmental impact statement for
the Foxconn project are unrelated to plaintiffs’ takings claims and based on alleged
conduct that has already occurred. Therefore, these claims are also ripe. See Rock
Energy Co-op. v. Village of Rockton, 614 F.3d 745, 748 (7th Cir. 2010).
3. Substantive Due Process Claims
Williamson County applies to claims challenging “a taking . . . as a denial of
substantive due process.” Gamble v. Eau Claire County, 5 F.3d 285, 287 (7th Cir.
1993). Thus, plaintiffs’ claims challenging defendants’ alleged plans to blight their
properties and condemn them for a private purpose as a denial of substantive due
process—that is, as an arbitrary and oppressive abuse of governmental power—are
clearly subject to Williamson County. See Forseth, 199 F.3d at 369 n.8. As plaintiffs
have not exhausted their state remedies with respect to these claims, they are not ripe,
and I must dismiss them.
Plaintiffs’ remaining substantive due process claims based on defendants’
allegedly disparate offers to buy properties subject to the development agreement and
perfunctory decision making process with respect to the Foxconn project, including their
alleged indifference to its potential environmental impact, do not fundamentally
challenge any takings. These claims also primarily concern past or ongoing conduct.
Accordingly, these claims are ripe for adjudication. See Rock Energy, 614 F.3d at 748.

7

B. Failure to State a Cognizable Claim
As noted above, defendants argue that plaintiffs’ allegations about their decision
making process and failure to produce an environmental impact statement fail to state a
claim upon which relief can be granted. Failure to state a claim on which relief may be
granted is a basis for dismissal that a court may raise on its own, as well. See 28 U.S.C.
§ 1915(e)(2)(B)(ii). In fact, I must dismiss this case or any part of it if I determine “at any
time” that it fails to state a cognizable claim for relief. Id. A claim is cognizable only if
“the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
1. Equal Protection Claims
Plaintiffs’ ripe equal protection claims do not arise from government “distinctions
among people based on . . . membership in a ‘suspect’ class,” such as race or sex, or
“denial of a fundamental right,” like freedom of speech, so defendants’ alleged conduct
need only satisfy rational basis review. Srail v. Village of Lisle, 588 F.3d 940, 943 (7th
Cir. 2009). As such, plaintiffs must allege facts that allow me to infer that (1) defendants
“intentionally treated plaintiffs differently from others similarly situated” and (2) “this
different treatment was not rationally related to a legitimate [government] interest.” Id.
Plaintiffs first claim that defendants denied them equal protection by depriving
them of “the thoughtful decision making process that . . . other citizens of Wisconsin . . .
receive from their governmental officials,” including assessment of the environmental
impact of major projects. Pls.’ Resp. Br., ECF No. 18, at 22 (emphasis added).
However, that defendants treated plaintiffs differently than other municipalities and their
officials treat other Wisconsin citizens does not show that defendants treated plaintiffs

8

differently than defendants treated others similarly situated, as required to state an
equal protection claim. Further, individuals treated differently by different decision
makers are rarely considered “similarly situated” for equal-protection purposes. United
States v. Moore, 543 F.3d 891, 897 (7th Cir. 2008). Finally, plaintiffs cannot compare
themselves to all “other citizens of Wisconsin” as “similarity requires specificity” lacking
in such “overly broad” comparisons. Srail, 588 F.3d at 946.
Plaintiffs also claim that defendants denied them equal protection by offering
them substantially less to sell their properties than their “similarly situated neighbors are
receiving.” Am. Compl., ECF No. 12, ¶ 58. Yet, plaintiffs offer nothing but conclusory
assertions to show that they are similarly situated to their neighbors who were offered
generous “option packages” to sell. “To be considered ‘similarly situated,’ a plaintiff and
his comparators (those alleged to have been treated more favorably) must be identical
or directly comparable in all material respects,” LaBella Winnetka, Inc. v. Village of
Winnetka, 628 F.3d 937, 942 (7th Cir. 2010), which is to say, “similarly situated
individuals must be very similar indeed.” McDonald v. Village of Winnetka, 371 F.3d
992, 1002 (7th Cir. 2004). Here, the only meaningful comparative information about
plaintiffs and their neighbors comes from a map of the planned development area
showing their respective properties that plaintiffs attached to their complaint. The map
shows that plaintiffs’ properties are small and peripheral, while the “option parcels” are
generally much larger and closer to the initial building site. If anything, this suggests a
lack of similarity between plaintiffs and their neighbors fatal to these claims.
Moreover, at the pleading stage, to plausibly allege that differential treatment is
not rationally related to a legitimate government interest, a plaintiff must “overcome the

9

presumption of rationality attached to government action” by “negat[ing] any rational
basis” for the challenged action, including the court’s “hypothesized justifications.” See
Flying J, 549 F.3d at 545 (emphasis added). Here, defendants may have rationally
decided to pay substantially more per acre for larger properties located nearer the initial
building site because the failure to acquire those properties quickly and without the
hassle of negotiation, much less legal proceedings, risked delaying the project as a
whole or interfering with specific development plans. By contrast, acquiring plaintiffs’
properties may simply be a lower priority because those properties are much smaller
and marginally located. As I can surmise a rational basis for defendants’ conduct, and
plaintiffs offer nothing but conclusory assertions to show the irrationality of that conduct,
plaintiffs fail to overcome the presumption that defendants acted rationally.
For the foregoing reasons, plaintiffs’ ripe equal protection claims are not
cognizable. Therefore, I must dismiss them for failure to state a claim on which relief
can be granted. § 1915(e)(2)(B)(ii).
2. Substantive Due Process Claims
Plaintiffs’ ripe substantive due process claims challenge defendants’ conduct as
“abuse of governmental power so arbitrary and oppressive that it shocks the
conscience.” Catinella, 881 F.3d at 519. This is a high standard violated by “only the
most egregious official conduct.” Sacramento County v. Lewis, 523 U.S. 833, 846
(1998). For example, the Supreme Court’s “lodestar case” recognizing a violation of this
standard “involved the forcible pumping of a criminal suspect’s stomach,” which the
Court decried as a “course of proceeding by agents of government . . . bound to offend
even hardened sensibilities.” Catinella, 881 F.3d at 519 (quoting Rochin v. California,

10

342 U.S. 165, 172 (1952)). By contrast, the Court more recently held that a sheriff’s
deputy did not violate this standard “by causing death through deliberate or reckless
indifference to life in a high-speed automobile chase aimed at apprehending a
suspected offender.” Sacramento County, 523 U.S. at 836.
Defendants’ alleged conduct falls well short of shocking the conscience. That
defendants offered to pay some property owners substantially more than others to
acquire their properties is hardly “oppressive” in any actionable sense. Similarly, that
defendants’ decision making process was not sufficiently rigorous to appease plaintiffs
does not mean, for example, that defendants “course of proceeding” was “bound to
offend even hardened sensibilities.” Substantive due process is “among the stingiest of
constitutional protections,” Kramer v. Village of North Fond du Lac, 384 F.3d 856, 865
(7th Cir. 2004), and the facts alleged in the operative complaint do not come close to
allowing me to infer that defendants violated it. Thus, plaintiffs’ ripe substantive due
process claims are not cognizable, and I must dismiss them. § 1915(e)(2)(B)(ii).
III. CONCLUSION
THEREFORE, IT IS ORDERED that defendants’ motion to dismiss plaintiffs’ first
amended complaint or, in the alternative, to stay these proceedings (ECF No. 16) is
GRANTED in part as discussed above and otherwise DENIED.
IT IS FURTHER ORDERED that, on defendants’ motion to dismiss and pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii), this case is DISMISSED without prejudice. The Clerk
of Court shall enter final judgment accordingly.

11

IT IS FURTHER ORDERED that all other pending motions (ECF Nos. 3, 9, 17,
21) are DENIED.
Dated at Milwaukee, Wisconsin, this 2nd day of May, 2018.

_s/Lynn Adelman___________
LYNN ADELMAN
District Judge

12