Posted by: Patricia Salkin | January 17, 2016

Fed. Dist. Court in WI Denies Motion to Dismiss Equal Protection Claim Arising from a Denial of Conditional Use Permit

Plaintiffs J.C. Frazier and Northwest Funeral Chapel, Inc. brought this § 1983 claim against defendant City of Racine alleging that defendant violated plaintiffs’ rights to equal protection and due process when it denied their application for a conditional zoning permit. Frazier, an African American, operated Northwest Funeral Chapel in Racine which primarily served African Americans. Frazier submitted an offer to purchase a property on Lake Avenue in November 2011, conditioned on being able to use it as a funeral home. Plaintiffs applied for a conditional use permit, and allege that the Commission recommended that the Common Council grant the permit with unusually extensive conditions. In March 2012, the Council denied plaintiffs’ application. Plaintiffs allege that less than two months later, a white-owned funeral home purchased the property and that defendant granted it permission to use the property as a funeral home.

Defendant did not argue that plaintiffs failed to plausibly plead the elements of these claims, but rather that plaintiffs failed to plausibly plead that it is liable. Thus, to plead causation, plaintiffs were required to allege that the deprivation of their rights was caused by: an express policy of defendant’s; a widespread practice so permanent and well-settled as to constitute a custom, policy or practice; or a person with final decision policymaking authority. This was satisfied because here the Council was the defendant’s legislative body, and a municipality’s legislative body has been considered a final policymaker for purposes of § 1983. The court therefore declined to dismiss plaintiffs’ equal protection claims.

As to the due process claims, Plaintiffs did not plausibly plead that defendant deprived them of a constitutionally protected interest. Plaintiffs alleged no ownership or other type of property interest in the Lake Avenue property, except for a contract to buy; the court found that this was not tantamount to ownership. Additionally, the Plaintiffs also failed to plausibly plead the absence of sufficient procedural protection since state court review was available to them. Accordingly, the motion to dismiss the Plaintiffs’ due process claims was granted.

Frazier v City of Racine, 2015 WL 9274015 (ED WI 12/18/2015)

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