Posted by: Patricia Salkin | August 29, 2016

7th Circuit Court of Appeals Grants to Town Summary Judgment Against Claims Arising from Relocation of Slaughterhouse

A butcher shop operated on the plot located in the town of Black Earth. While the property was not zoned for slaughtering livestock, the activity had long been permitted as a legal nonconforming use. In 2001, Black Earth Meats (BEM) purchased the property. Sometime after 2009, the volume and frequency of slaughter increased, and by 2011, neighbors were complaining about increased traffic, delivery trucks blocking the road, livestock noise, foul odors, improper storage of animal parts, and the presence of offal, blood, and animal waste in the streets. Additionally, steers escaped from the facility on three occasions; each time, a posse had to hunt the fugitive bovine through the streets of Black Earth and, ultimately, shoot it dead. The Village trustees increased enforcement of Village regulations, ordered BEM to propose an acceptable plan for relocating its slaughter activities, held several public meetings, and in July 2014, threatened litigation. It also denied BEM’s current owner, Kemper Durand Jr’s, motion declaring that slaughter was “permitted at the [BEM] facility as a legal, nonconforming use.” As a result of the Village’s threat of litigation, the U.S. Department of Agriculture (USDA) refused to guarantee a loan to BEM from the Bank of New Glarus. Shortly afterwards, BEM lost its financing, closed, and then sued the Village and the members of its Board. The district court granted summary judgment to the defendants.

As to the New Glarus financing and its liberty interest in the occupation of slaughter, BEM’s claim was essentially that the Board achieved ends it could have obtained through zoning with the threat of litigation. Because BEM’s financing agreement with New Glarus and its liberty interest in slaughter both represented interests independent of the property itself, the court found that they could be properly construed as (non-takings) procedural due process claims, and therefore ripe. On the merits of the due process claim, the court found that contrary to BEM’s contention, nothing the Village did actually forbade slaughter, and in not passing Durand’s motion, the Board merely declined to adopt his legal position. Moreover, even if the threat of litigation could in itself constitute a violation of due process and were a sufficiently direct cause of BEM’s alleged deprivations, there was no reason to think that the process accorded to BEM was inadequate.

Next, the court found that BEM’s class-of-one claim failed as a matter of law, as there no evidence of animus in this case. Specifically, there was no evidence that they were motivated by malice or animosity, but instead were responding to a outpouring of complaints from BEM’s neighbors about increased traffic, delivery trucks blocking the road, livestock noise, foul odors, improper storage of animal parts, and offal runoff, blood, and animal waste in the streets. Furthermore, BEM had not suggested a sufficiently similar comparator, as the tavern it provided did not engage in slaughter of livestock. Accordingly, the granting of summary judgment to the defendants on BEM’s procedural due process and its equal protection claims was affirmed.

Black Earth Meat Mkt., LLC v. Village of Black Earth, 2016 WL 4468085 (7th Cir. Aug. 24, 2016)

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