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Any Rational Basis Will Do in Failed Class-of-One Challenge

By Casey C. Sullivan, Esq. on May 05, 2015 | Last updated on March 21, 2019

When Stephanie Miller proposed a condo development in the Madison suburb of Monona, Wisconsin, she soon discovered how quickly small town politics could get in her way. After a falling out with a former mayor over another development, her proposed condos suddenly faced a very rocky approval process. Miller found herself subject to a slew of roadblocks.

Eventually she went to court, alleging that she had been discriminated against as a "class-of-one." Miller alleged that she was being selectively prosecuted and that city officials had singled her out for unfavorable treatment, without a rational basis, when compared to similarly situated persons, such as the former major's son, whose developments had gone ahead without a hitch.

Of course, the problems Miller faced weren't all imposed by city officials. Significantly here, her properties were full of asbestos. When she started to demolish and remove them, without proper permits, she faced an order to halt demolition due to the asbestos from state agencies, plus fines from the city for creating a partially demolished public nuisance. At one point, the city attorney ordered examiners to investigate whether the weeds had grown too tall.

When it comes to local land-use decisions, the rule that similarly situated individuals must be treated often falls before the individualized and discretionary nature of planning decisions. A class-of-one claim can only survive if there is no rational basis at all for the official's actions.

In an Asbestos-Filled Class of Your Own

A plaintiff can demonstrate that the planning decisions weren't rational by establishing a comparable person who, for no logical reason, was treated differently. However, according to the district court, there were no comparators to contrast her treatment with. The Seventh Circuit agreed. The difference in size between Miller's project and the mayor's son didn't prevent them from being compared. The fact that only Miller's development involved asbestos removal set her apart.

The lack of a comparator isn't fatal. Internal inconsistencies, such as issuing two contradictory citations, can demonstrate unfair treatment and a lack of rationality, since they demonstrate that there was no legitimate exercise of discretion.

Any Rational Basis Will Do

While Miller's experience was certainly frustrating, it did not reach the level facial illegitimacy needed. Her complaint, noting the actions taken to abate asbestos contamination, revealed a rational basis. She had, the Seventh Circuit noted, plead herself out of court. That her complaint alleged that actions were based on animus didn't matter. So long as there was any rational explanation, her challenge to the city's actions couldn't succeed.

The case is a reminder of the high deference afforded cities and states in local land use planning -- as well as the risks of getting on the wrong side of a small-town mayor.

Speaking of risks, the Seventh Circuit's panel opinion in this case deftly avoided deciding any of the tricky class-of-one issues created by the Seventh Circuit's previous split. In an en banc case from 2012, the court deadlocked, issuing three separate opinions, with only the dissent gaining a plurality.

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