Mark Bell v. Tere Duperrault

367 F.3d 703, 2004 U.S. App. LEXIS 9296, 2004 WL 1057713

• Court: Court of Appeals for the Seventh Circuit
• Decided: May 12, 2004
• Docket: 03-3829
• Status: Published

Opinions

FLAUM, Chief Judge.

Mark Bell owns a vacation home on the shoreline of Lake Michigan’s Green Bay in Door County, Wisconsin. In 1993, Bell obtained a permit from the Wisconsin Department of Natural Resources (“DNR”) in order to construct a private pier into the bay. In 1998, Bell decided to expand his pier. He therefore attempted to obtain a permit from the DNR so he could build a 60-foot extension onto his existing pier, a rubble mound breakwater that was 45 feet long and 15 feet wide, and a temporary road on the lakebed to aid construction. The DNR objected to Bell’s permit application and required that Bell proceed with an administrative hearing on the issue. Instead of proceeding with the administrative hearing, Bell filed suit alleging that the DNR violated his rights under the Equal Protection Clause of the Fourteenth Amendment. The district court granted summary judgment to the DNR’s agent, Tere Duperrault, and Bell now appeals. For the reasons stated herein, we affirm.

I. Background

Under Wisconsin law, landowners may not build structures in navigable waters without a permit from the DNR. See Wis. Stat. § 30.12 (1989). Upon receiving a permit application, the DNR either proceeds without a hearing, or if a substantive written objection to issuance of the permit has been received, schedules a public hearing. See Wis. Stat. § 30.02(3). A substantive written objection is “a written statement giving specific reasons why a proposed project ... may violate the statutory provisions applicable to the project and specifying that the person making the objection will appear and present information supporting the objection in a contested case hearing.” Wis. Stat. § 30.01(6b). The DNR itself can object to a permit application even if no member of the public has objected.

Beginning in the late 1990’s, the DNR became concerned about the environmental impact of private structures filling the waterways. Therefore, in 1997 the DNR put all pending applications on hold while it engaged in an environmental assessment of such structures. The DNR’s assessment was completed in April 1998 and prompted a shift in policy under which permit applications were subjected to increasingly rigorous scrutiny. Of the 33 applications pending from 1997, only 11 permits were granted. Since 2000, no permits have been issued for new private solid piers or breakwalls.

Bell’s problems with the DNR began on February 4, 1998, when he filed his application to extend his pier and build a breakwater, Bell’s permit application was assigned to Tere Duperrault, who was then the DNR’s Water Management Specialist for Door County. Duperrault reviewed Bell’s application, visited Bell’s property for a field inspection, and met with Bell on several occasions. During one of these meetings, Duperrault kept Bell waiting in her office for approximately thirty minutes while she engaged in a personal phone call with her feet propped on the windowsill. The meeting did not result in any resolution of the application, which frustrated Bell who had driven for six hours to attend the meeting. Even worse from Bell’s perspective was that the meeting was futile because Duperrault had already decided to oppose Bell’s application on behalf of the DNR.

The DNR was not the only party opposed to Bell’s application, however. Bell’s permit application also received public objections from the Door County Environmental Council, the Gibraltar Preservation Council, and an individual citizen, Kurt Pagel. Duperrault determined that all three objections were timely and substantive.

In February 1999 Bell filed an amended application with the DNR reducing the size of his pier extension and temporary road and adding plans for dredging. Bell’s amended application was nearly identical to the application of one of his neighbors, John Hockers, who had been granted a permit without a hearing in 1998. However, in June 1999 Duperrault informed Bell that the DNR was opposing his application. She stated that his proposal would negatively impact fisheries, water quality and aquatic habitat, as well as natural scenic beauty. Moreover, Bell’s amended application was still objected to by Kurt Pagel and the Door County Environmental Council. Bell’s case was therefore scheduled for an administrative hearing.

Rather than proceeding with the hearing, Bell filed suit against the DNR in federal court. Bell’s complaint alleges that the DNR, and specifically its agent, Tere Duperrault, violated the Equal Protection Clause of the Fourteenth Amendment when Bell was denied a permit unless he participated in an administrative hearing. Bell argues that many of his neighbors had been granted permits without hearings, and that he was treated unequally for no legitimate reason. The DNR replies that none of the neighbors were similarly situated to Bell, either because of the timing or nature of their applications.

The first of the neighbors that Bell asserts was similarly situated is John Hock-ers. Hockers applied for a pier extension on February 4, 1998, which was the same filing date as Bell’s original application. Bell acknowledges that Hockers’s planned structure was less extensive than Bell’s original proposed pier. But Bell contends that his amended application was nearly identical to Hockers’s application and therefore should have been granted. The DNR responds that although Bell’s second application was similar to Hockers’s, it was filed more than a year later when the DNR’s standards had become much more strict.

The second allegedly similarly situated individual was John Koehn, who filed an application for a new pier in March 1998. Koehn’s permit was granted without a hearing in September 1998, despite objections from Kurt Pagel and the Door County Planning Department. However, the DNR argues that Koehn’s pier was significantly different from Bell’s pier extension because the Koehn pier had an 80-foot flow-through section. Large flow-throughs allow the free movement of water and materials along the shoreline, and the DNR considers them to be ecologically advantageous. Neither of Bell’s proposals included a flow-through.

The last two individuals whose plans were allegedly similarly situated to Bell’s were Tim Halbrook and Marc Pescheret. Both filed applications for permits for reconstruction in 2000 which were granted without hearings. The DNR contends that these individuals were not similarly situated to Bell because the DNR treats applications to replace dilapidated older structures with new ones more favorably than applications to build entirely new structures. The DNR reasons that replacing old structures provides a net gain for the environment. Indeed, both the Halbrook and Pescheret applications were for the replacement of old piers that did not have flow-throughs with piers that did have flow-throughs.

II. Discussion

This Court reviews the district court’s grant of summary judgment in favor of Duperrault de novo. See Basith v. Cook County, 241 F.3d 919, 926 (7th Cir.2001). In so doing, we must construe all facts in the light most favorable to Bell, the non-moving party. See McCoy v. Harrison, 341 F.3d 600, 604 (7th Cir.2003). However, “we are not required to draw every conceivable inference from the record.” Id. Inferences that are supported by only speculation or conjecture will not defeat a summary judgment motion. Id.

With these standards in mind, we proceed to address the merits of Bell’s equal protection claim. Typically equal protection claims involve charges of singling out members of a vulnerable group for unequal treatment or charges that a law or policy makes irrational distinctions between groups of people. See Esmail v. Macrane, 53 F.3d 176, 178 (7th Cir.1995). However, equal protection claims may also involve a “class of one,” where the plaintiff alleges that only he “has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). The “class of one” plaintiff bears the burden of proving that he has suffered intentional, irrational, and arbitrary discrimination. See id. at 564-65, 120 S.Ct. 1073. He can do so either by showing that he was treated differently from identically situated persons for no rational reason, or that he was treated worse than less deserving individuals for no rational reason. See Esmail, 53 F.3d at 179 (stating that “equal protection does not just mean treating identically situated persons identically. If a bad person is treated better than a good person, this is just as much an example of unequal treatment .... ”). Bell argues that he was in such a class of one when the DNR denied his permit application unless he took part in a hearing while granting permits to other similarly situated individuals without a hearing.

Unfortunately for Bell, his argument fails because he has not shown that others were actually similarly situated. Bell has provided no facts disputing that the DNR applied increasingly rigorous scrutiny to permit applications beginning in mid-1998 and continuing over the next several years due to environmental concerns. Therefore, Bell’s amended proposal, filed in February 1999, was not similarly situated to Hockers’s proposal which was filed in February 1998. It is also undisputed that after the environmental assessment was released in April 1998, the DNR began emphasizing the importance of “flow-through” structures which would allow littoral currents to flow freely. For this reason, Bell’s proposal which lacked a flow-through was not similar to Koehn’s, Halbrook’s, or Pescheret’s proposals which all included flow-throughs. Additionally, Koehn’s application was filed in March 1998, eleven months before Bell’s amended proposal. And while Halbrook and Pescheret did not apply for permits until 2000, they were both replacing already existing structures rather than creating entirely new structures. The DNR argues that such renovations receive preference over applications for new structures because of the net gain to the environment when dilapidated older structures are replaced.

Bell of course contests that these applicants were similarly situated to himself. He asserts that since the environmental assessment was completed in April 1998, all permits reviewed after April 1998 should have been treated equally. He further points to various elements of the proposed renovation projects that actually made them much more destructive than his own proposal. Finally, he argues that no one informed him that flow-throughs were important factors, and therefore it is a reasonable inference that flow-throughs were not important factors.

None of these arguments enables Bell to carry the “very significant burden” of a class of one plaintiff. See Discovery House, Inc. v. Consolidated City of Indianapolis, 319 F.3d 277, 282-83 (7th Cir.2003). It is not enough that the DNR acted in a way that Bell believes to be ineffective or even destructive. Rather, Bell must “eliminate any reasonably conceivable state of facts that could provide a rational basis for the classification.” Id. at 282 (internal quotation omitted). He has not done so. The evidence shows that the DNR decided to increasingly scrutinize applications beginning in 1998 because of environmental concerns. This policy decision is a rational one. Also rational is the DNR’s preference for structures that allow currents to flow naturally and for older structures to be renovated when they become run-down. Furthermore, the DNR did not have any obligation to inform Bell of its reasoning in 1998. See id. It is possible, of course, that had Bell proceeded with his administrative hearing and created a more fulsome record on this issue, he may have discovered evidence that the DNR had no basis for these policies or that the policies were completely irrational. We find it puzzling that Bell chose to withdraw his permit application and file suit in federal court rather than attempt to eliminate the problem or at least develop the record with a simple administrative hearing. But on this record, we are left with nothing more than Bell’s speculation and conjecture that a jury could have disbelieved all of the DNR’s evidence. This is not enough to survive a summary judgment motion.

Nor does Bell’s claim succeed when his arguments regarding Duperrault’s alleged discriminatory animus are added into the mix. Specifically, Bell argues that Duperrault demonstrated personal hostility toward him which indicates that she deliberately sought to deprive him of equal protection of the laws.¹ Bell’s evidence on this point consists of evidence that Duperrault refused to reschedule a meeting although Bell informed her that his wife was ill, that Bell then drove six hours to attend the meeting which Duper-rault postponed for thirty minutes while she engaged in a personal phone call with her feet on the windowsill, and that the meeting did not result in any resolution of Bell’s application. Bell further notes that Duperrault had in fact already decided to oppose Bell’s application, but did not inform him of this decision until several months later.

While Duperrault’s alleged behavior was perhaps inconsiderate or inappropriate, it does not demonstrate the type of “deep-seated animosity” that this Court has found to support an equal protection claim. See Esmail, 53 F.3d at 178. Such animosity occurs when “a powerful public official pick[s] on a person out of sheer vindictiveness,” or when an official acts “for the sole and exclusive purpose of exacting retaliation and vengeance against” the plaintiff. Id. Bureaucratic inefficiencies and even downright rudeness do not rise to this level. Were our decision to the contrary, the judicial system would overflow with equal protection claimants seeking damages for the discourteous treatment they received from various public servants. Therefore, Bell cannot establish a genuine issue of material fact that Duperrault violated his rights under the Equal Protection Clause when she required him to proceed with his permit application by attending an administrative hearing.

III. Conclusion

For the foregoing reasons, the grant of summary judgment in favor of the defendant ÍS AFFIRMED.

1 . As a preliminary matter, Bell argues that the Supreme Court eliminated the requirement of subjective animus from class of one claims in Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000), and that this Court’s precedent to the contrary should be overturned. We note first that the Supreme Court explicitly declined to reach the issue of subjective ill will in Olech, and therefore did not eliminate the possibility that such evidence could be used to state an equal protection claim. Id. at 565, 120 S.Ct. 1073. Even if the Supreme Court’s holding was otherwise, Bell did not raise this argument below, and it is thus waived. See Williams v. REP Corp., 302 F.3d 660, 666 (7th Cir.2002) (stating that a party waives any argument that it did not make to the district court). However, we choose not to reach the issue because its determination is not necessary for the resolution of this case. As will be discussed, Bell cannot show discriminatory treatment either with or without evidence of subjective animus by Duperrault.