Gilbert Purze and Jerome Purze v. Village of Winthrop Harbor

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-4155
Gilbert Purze and Jerome Purze,
Plaintiffs-Appellants,
v.
Village of Winthrop Harbor,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 8481--James B. Zagel, Judge.
Argued September 24, 2001--Decided April 9, 2002
Before Posner, Ripple, and Kanne, Circuit
Judges.
Kanne, Circuit Judge. Plaintiffs Gilbert
and Jerome Purze sued the Village of
Winthrop Harbor, Illinois ("the Village")
under 42 U.S.C. sec. 1983, alleging that
the Village denied them equal protection
of the laws by refusing to approve
several preliminary plats of a
subdivision plan. The district court
entered summary judgment in favor of the
Village, finding that the Purzes failed
to demonstrate that similarly-situated
property owners were treated more
favorably or to demonstrate that the
Village acted out of ill will. We affirm.
I. History
Beginning in January 1998, Gilbert and
Jerome Purze sought to develop property
that they owned in a rural subdivision of
the Village. Pursuant to the Village
Subdivision Code, in order to subdivide
property, a property owner must submit to
the Village Board ("the Board"), and have
approved by the Board, a preliminary plat
and a final subdivision plat. While the
Planning and Zoning Board of Winthrop
Harbor ("PZB") may make recommendations
to the Board regarding variance requests
and subdivision plats, all plats must
comply with the regulations contained in
the Subdivision Code. Interpretations of

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those regulations are reserved to the
Board and the Board reserves the right to
vary and make exceptions to the
regulations in cases of hardship,
provided that the variances or exceptions
are in substantial conformance with the
standards of design prescribed by the
Subdivision Code.
In addition to the Village Subdivision
Code, the Village also had a Zoning Code
in effect. The Purzes’ property was zoned
R-5 (rural zoning). The Purzes initially
requested that their property be re-zoned
from R-5 (rural zoning) to R-3
(residential zoning). However, at a
public hearing held by the PZB, citizens
in attendance strongly opposed the
requested re-zoning, voicing concern that
the rural nature of the existing
neighboring properties would be
negatively impacted by the requested re-
zoning. In light of the opinions voiced
at this public hearing, the PZB
recommended against re-zoning the Purzes’
property. The Board unanimously affirmed
its recommendation.
Following their failed attempt to get
their property re-zoned, the Purzes
retained an engineer, Joseph Hammer, to
help them prepare a resubdivision plat in
compliance with R-5 zoning. The Purzes
and Hammer developed a preliminary plat.
However, this first preliminary plat did
not fully comply with the Village
Subdivision Code. Specifically, this
preliminary plat contained lots with
double frontages that were expressly
prohibited by the Subdivision Code. While
presenting the plat to the PZB, Hammer
acknowledged the plat’s failure to comply
with the Subdivision Code, but he
explained to the PZB that he intended to
request a variance from the Board.
Hammer, however, never requested such a
variance. During this initial
presentation to the PZB, the PZB also
expressed concerns about water run-off
and detention area issues, traffic
issues, and exits out of and entrances
into the proposed development.
Eventually, the PZB recommended against
approval of the preliminary plat. The
Board agreed, further noting that the
preliminary plat did not comply with the
Subdivision Code in several other ways.
For instance, the width and square
footage of several lots were too small
and easements for maintenance vehicles

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were less than the required 20 feet.
The Purzes submitted a revised plat to
the PZB. This revised plat, however,
still contained two lots that were too
small and maintenance easements that were
less than 20 feet. Additionally, this
revised plat had a block in excess of
1,200 feet, in violation of the
Subdivision Code. Further, the Village’s
Fire Chief and Police Chief both
expressed concerns about access to the
proposed development and requested
consideration of a second exit. Despite
these concerns, the PZB voted to approve
the revised plat, subject to certain
stipulations: a north/south road was to
be added to the east end of the property,
five lots were to be redrawn, and a 20-
foot easement was to be added to the
plat. The Board, however, declined to
follow the PZB’s recommendation and was
not willing to approve the revised plat
even subject to the stipulations. The
Board did, however, agree to waive the
cost to the Purzes of submitting another
revised plat for further consideration.
The Purzes decided to submit a second
revised plat to the PZB. Several lots
were still too small, and the maintenance
easements were still less than the
required 20 feet, but the second revised
preliminary plat added the requested
north/ south road. This road, however,
created a new problem for the Purzes
because it was not in compliance with the
Subdivision Code. Specifically, the road
was offset and created a road jog of less
than 125 feet. While the PZB, on a
divided vote, approved the second revised
preliminary plat, the Board rejected the
PZB’s recommendation. In rejecting the
Purzes’ second revised preliminary plat,
the Board specifically noted that the
restriction regarding the required length
of a road jog had been strictly enforced
in the past, including against a Village
school.
Subsequently, the Purzes filed this
lawsuit against the Village alleging,
among other things, that they were denied
equal protection of the laws. The
district court granted summary judgment
in favor of the Village, explaining that
the Purzes failed to present "sufficient
evidence to allow a reasonable jury to
find that similarly-situated property
owners were treated more favorably than

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Plaintiffs." Furthermore, the district
court explained that the Purzes’
allegations of ill will or animus, "even
when taken together, do not come close to
the degree required . . . to state an
equal protection claim in a class of one
case." On appeal, the Purzes argue that
the district court improperly required
them to prove (1) that more than one
other similarly-situated person was
treated more favorably, and (2) that the
Village acted out of personal ill will.
Moreover, the Purzes claim that even if
they are required to show personal ill
will, the record sufficiently creates a
question of fact regarding the Village’s
ill will, precluding the entry of summary
judgment.
II. Analysis
We review a grant of summary judgment de
novo, viewing all of the facts, and
drawing all reasonable inferences
therefrom, in favor of the nonmoving
party. See Furnish v. SVI Sys., Inc., 270
F.3d 445, 448 (7th Cir. 2001). "[A]
complete failure of proof concerning an
essential element of the [nonmovant’s]
case necessarily renders all other facts
immaterial." Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S. Ct. 2548, 91 L.
Ed. 2d 265 (1986).
The Purzes proceed under a "class of
one" Equal Protection theory. See Village
of Willowbrook v. Olech, 528 U.S. 562,
564 n.*, 120 S. Ct. 1073, 145 L. Ed. 2d
1060 (2000) ("[T]he number of individuals
in a class is immaterial for equal
protection analysis."). To succeed on
their class of one claim, the Purzes must
demonstrate that they have been
"intentionally treated differently from
others similarly situated and that there
is no rational basis for the difference
in treatment." Cruz v. Town of Cicero,
275 F.3d 579, 587 (7th Cir. 2001)
(quoting Olech, 528 U.S. at 564).
Furthermore, "to make out a prima facie
case the [Purzes] must present evidence
that the defendant deliberately sought to
deprive [them] of the equal protection of
the laws for reasons of a personal nature
unrelated to the duties of the
defendant’s position." Hilton v. City of
Wheeling, 209 F.3d 1005, 1008 (7th Cir.
2000).
In order to succeed, the Purzes must

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demonstrate that they were treated
differently than someone who is prima
facie identical in all relevant respects.
See Ind. State Teachers Ass’n v. Bd. of
Sch. Comm’rs, 101 F.3d 1179, 1181-82 (7th
Cir. 1996). After reviewing the record,
we agree with the district court and find
that the Purzes failed to demonstrate
this essential element of their claim.
The Purzes rely on comparisons with three
other developments in the Village to
support their assertion that other
similarly-situated individuals were
treated more favorably. The allegedly
comparable individuals, however, are not
identically situated in all relevant
respects rationally related to the
government’s mission. See id. In Ciechon
v. City of Chicago, 686 F.2d 511, 522-24
(7th Cir. 1982), two paramedics were
considered by this court to be similarly
situated in all relevant respects. Both
paramedics had experienced the same set
of circumstances, and were equally
responsible for the assessment,
treatment, and the welfare of the
patient, yet only one paramedic was
disciplined after the death of a specific
patient. See id. Conversely, the
allegedly similarly-situated individuals
in this case requested different
variances than the Purzes requested;
submitted their plats during different
time periods; and had their plat requests
granted by different and previous Boards.
Cf. Radue v. Kimberly-Clark Corp., 219
F.3d 612, 618 (7th Cir. 2000) (finding
that "[d]ifferent employment decisions,
concerning different employees, made by
different supervisors, are seldom
sufficiently comparable to establish a
prima facie case of discrimination for
the simple reason that different
supervisors may exercise their discretion
differently").
For example, the Purzes claim that the
property directly east of their property,
the Oaks, used cul-de-sacs that do not
conform to the Subdivision Code and has a
block measuring in excess of 1,300 feet
in violation of the Subdivision Code. The
Purzes, however, cannot establish their
prima facie case by referring to a
development with variances from the
Subdivision Code of a kind not requested
by the Purzes and with variances that
were requested under circumstances very
different from the Purzes’ present situa
tion. The Purzes never requested

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variances for cul-de-sacs, as did the
Oaks. Additionally, the Oaks was
developed over 20 years ago and the
topography of the Oaks differs greatly
from the topography of the Purzes’
property. The Oaks needed to fashion its
plat around two ravines. The Purzes are
not contending with similar
circumstances.
As a second example, the Purzes’
comparisons with another subdivision, the
Covenant Cove Subdivision, also does not
establish that other similarly-situated
individuals were treated more favorably.
Although the Covenant Cove Subdivision
contains lots with double frontages, the
Purzes never actually requested a
variance for double frontages from the
Board. Hammer suggested that he was going
to make such a request, but no request
was ever submitted. Additionally, the
Purses’ preliminary plat, which contained
the double frontages, also failed to
comply with the Subdivision Code in
several other respects, for example,
several lots were too small and the
easements for maintenance vehicles were
too small.
III. Conclusion
For the foregoing reasons, we find that
the Purzes have failed to demonstrate
that similarly-situated individuals were
treated more favorably, and therefore, we
AFFIRM the judgment of the district court.

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