plausible reasons for its action which federal courts have recognized as legitimate. See Penn Cent.
Transp. Corp. v. City of New York, 438 U.S. 104, 129 (1978) (“[the] objective of preserving
structures and areas with special historic, architectural, or cultural significance is an entirely
permissible governmental goal”); Cohen, 8 F.3d at 494 (“[a] city may use zoning regulations as an
exercise of the police power to protect residents from the ill effects of urbanization, such as
crowding, encroachment of commercial business or industries, traffic congestion, and noise”).
Because the Designation Ordinance is rationally related to these objectives, the City is entitled to
summary judgment on Count LI].

B. Procedural Due Process

In Count IV, Northwestern claims the process uscd to design and adopt the Designation
Ordinance violated its right to procedural duc process. To prevail on this count, Northwestern must
show that it was deprived of a protected interest and that this deprivation occurred without
appropriate procedural safeguards. See Doherty v. City of Chicago, 75 F.3d 318, 322 (7" Cir. 1996).
We find that the procedures used to draft and adopt the Designation Ordinance complied with due
process requirements.”°

Legislative bodies like the City Council may enact generally applicable laws without granting
interested parties a public hearing. See Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S.
441, 445 (1915); Pro-Eco, Inc. v. Bd. of Comm'rs of Jay County, Ind., 57 F.3d 505, 513 (7th Cir.
1995). This is so for two reasons. First, since a generally applicable law “‘applics to more than a few
people, it is impracticable that everyone should have a direct voice in its adoption.” Bi-Metallic, 239

U.S. at 445. Second, “the across-the-board character” of a gencrally applicable law provides a

» The City argues that Northwestern does not have a protected property interest at stake in this case. Because
we find that Northwestern received all the process it was duc, we need not reach this issue.

-19-



equal protection cases.'* See FCC v. Beach Communications, 508 U.S. 307, 315 (1993) (noting that

“it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged
distinction actually motivated the legislature”). Thus, the City need not show that its actual
motivation for the modifications was rational. See id. at 315 (noting that “it is entirely irrelevant for
constitutional purposes whether the conceived reason for the challenged distinction actually
motivated the legislature”), Instead, the City must simply offer a hypothetical and “reasonably
conceivable state of facts that could provide a rational basis for the [modifications].” /d. at 313, This
the City has done. Accordingly, the City is entitled to summary judgment on Count IJ.

C. Vindictive Action Equal Protection

In Count I, Northwestem claims the City violated vindictive action equal protection standards
by intentionally targeting University property for inclusion in the Final Local District because of an
illegitimate animus toward the University, animus stemming from frustration with Northwestem’s
property-tax exemption and attendant refusal to make voluntary contributions for the provision of
City services. To establish a vindictive action cqual protection claim, “the plaintiff must demonstrate
that the government is treating unequally those individuals who are prima facic identical in all
relevant respects, and that the cause of the differential treatment is a ‘totally illegitimate animus
toward the plaintiff by the defendant.” Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th Cir.
2001) (quoting Olech, 160 F.3d at 388) (internal citations omitted). A vindictive action equal
protection claim, unlike its traditional counterpart, requires scrutiny of the Icgislaturc’s actual
subjective motivation. We find there are genuine issues of material fact as to the City’s motive in

designing the Final Local District which preclude summary judgment on this count.

4 An exception to this rule exists where the “subjective motivation was purposefully to discriminate along
lines that would warrant heightened scrutiny.” Women Involved in Farm Economics v. United States Dept.
of Agric. , 876 F.2d 994, 1005 n.8 (D.C. Cir. 1989).

-13-



property to the property-tax rolls. See Pl. SMF {| 231. Although the City denies that Drummer linked
these contributions to exclusion from the historic district, see Def. Resp. to Pl. SMF § 231,
Sunshine’s testimony to the contrary makes this a genuine issue of material fact. See Ex. 94 at | 12.

If Drummer’s proposal is as Northwestern claims, it represents the type of “out-and-out plan
of extortion” which the unconstitutional conditions doctrine prohibits, Nol/an v. California Coastal
Comm., 483 U.S. 825, 836 (1987). A local government simply cannot use its land-use powers to
coerce individuals or entities to surrender constitutionally protected rights in furtherance of policies
unrelated to land-use regulation. See id. at 837 (“the evident constitutional propriety disappears .. . if
the condition substituted for the prohibition utterly fails to further the end advanced as the
justification for the prohibition.”). Drummer’s proposal allegedly did just that — by conditioning
Northwestern’s exclusion from the historic district on the surrender of a property-tax exemption
granted by the State and protected by the Contracts Clause, in furtherance of a policy designed to
increase City revenues rather than to protect the architectural or residential nature of the local
community, the proposal violates the unconstitutional conditions doctrine.

For municipal liability to attach in this case, however, Drummer must have been acting as a
representative of the City in his negotiations with Sunshine. The City claims he was not, noting in
particular Drummer’s explicit denial. See Pl. Ex. 81 at 29-30. Llowever, Drummer acknowledged in
his deposition that he discussed the proposal with most of the members of the City Council. See Pl.
SMF { 243; Pl. Ex. 81 at 38-40. Drummer’s discussions with fellow aldermen could allow a
reasonable jury to conclude that he was acting as a representative of the City in subsequent
negotiations with Sunshine. Accordingly, Northwestern has established genuine issues of material

fact which preclude summary judgment on Count V.

-23-



submitted its written objections to the Proposed Local District in a letter dated April 12, 2000. See PI.
Ex. 208. Eugene Sunshine, Northwestem’s Senior Vice President for Business and Finance,
personally met with seven of the nine aldermen to express the University’s opposition to the
Proposed Local District. Nonctheless, on April 24, 2000, the Committee submitted to the full City
Council a draft ordinance approving the Proposed Local District.

Although the City Council was scheduled to consider the Proposed Local District on May 8,
2000, it returned the proposal to the Committee for consideration of potential boundary changes.
Two modifications to the Proposed Local District were subsequently made. The first modification
occurred on May 18, 2000 when the Committee moved the northern boundary south to Lincoln
Street. This removed a substantial amount of property owned by residents purportedly opposed to the
Proposed Local District, see Compl. Ex. F, and it also removed 7.05 acres of Universily property
which was not part of the Tl or T2 Districts.° The second modification occurred when the City
Council met to consider passage of the reviscd Proposed Local District on May 22, 2000. Prior to
consideration, Alderman Stephen Engelman proposed an amendment, subscquently approved, which
removed thirtcen additional properties south of Lincoln Street (the so-called “Lincoln 13”) from the
Proposed Local District, twelve’ of which contained “contributing” structures’ and none of which

were owned by the University.

© Northwestern’s T! and T2 District property is all south of Lincoln Street and was not affected by this
revision of the Proposed Local District. See Compl, Ex. A, G.

7 The remaining property is a vacant lot.

5 Under the Preservation Ordinance, a property or structure within a district has “contributing significance”
to the loca! district if “it contributes gencrally to the qualities that give the district historic, cultural,
architectural or archaeological significance as embodied in the criteria for designating the district.” Def. Ex.
36. The Preservation Ordinance defines as “non-contributing” those properties or structures which are “not
a representation of the qualities that give the district historic, cultural, architectural or archaeological
significance as embodied in the criteria for designating the district.” Def. Ex. 36.

“4.



“purely electoral” democratic check on legislative activity. Coniston, 844 F.2d at 469, However,

when a generally applicable law affects only a small number of people, an individualized hearing
may be required. See Londoner v. City & County of Denver, 210 U.S. 373 (1908); Coniston, 844 F.2d
at 469 (suggesting that the small size of a class “might support an argument that some type of
individualized hearing was required”), The number of people affected by a law, though, does not
determine whether a hearing is required; instcad, it is the nature of the legislative action that matters.
Where a legislative body’s action takes on an individualized character, it becomes more
“adjudicative” than “legislative” and therefore requires a hearing. See Bi-Metallic, 239 U.S. at 446
(suggesting that the right to a hearing depends on whcther the parties were “exceptionally affected, in
cach case upon individual grounds”); Coniston, 844 F.2d at 468 (discussing adjudicative-legislative
dichotomy). Whether Northwestern was entitled to a hearing thus depends on whether the
Designation Ordinance is more properly characterized as generally applicable legislation or an
adjudicatory act.

Two Seventh Circuit decisions provide guidance on this question. In Pro-Eco, Inc. v. Bd. of
Comm'rs of Jay County, the plaintiff challenged a county landfill moratorium on procedural due
process grounds. Pro-Eco, 57 F.3d at 513. The court conceded that the county likely acted as it did
“specifically because it saw Pro-Eco’s landfill coming.” Jd. Nonetheless, the court rejected the due
process claim, suggesting that the plaintiff was not even entitled to a hearing: “We do not believe that
a generally applicable prophylactic legislation provoked by the fear of one particular actor converts

an elected body’s legislative act into a quasi-judicial or administrative act that would require more

-20-



inclusion) other than Northwestem within the Final Local District, The prospectivity of the

Designation Ordinance is obvious — by its terms, it regulates the future use of property within the
Final Loca! District. Given its general nature and prospective application, the Designation Ordinance
must be classified as generally applicable legislation, and thus Northwestern was not constitutionally
entitled to a hearing before its adoption. Accordingly, the City is entitled to summary judgment on
Count IV,
1V. Unconstitutional Conditions

In Count V, Northwestem alleges the City conditioned the exclusion of University property
from the Final Local District on the University’s agreement to waive the right under its Charter to be
free from property taxation. Northwestern claims the City’s demand that it waive a contractual right
protected by the Constitution’s Contracts Clause in exchange for a discretionary benefit (e.g., the
University’s exclusion from the Final Local District) amounts to a violation of the unconstitutional
conditions doctrine. That doctrine prohibits the government from requiring that a person give up a
constitutional right in exchange for a discretionary benefit conferred by the government. See Dolan v.
City of Tigard, 512 U.S. 374, 385 (1994). The doctrine “is premised on the notion that what a
government cannot compel, it should not be able to coerce.” Libertarian Party of Ind. v. Packard,
741 F.2d 981, 988 (7th Cir. 1984). Northwestern maintains that because the City could not directly
compel the University’s payment of property taxes, it should not be able to coerce such payments
indirectly by conditioning exclusion from the historic district on payments to the City. We find there
are genuine issues of material fact which preclude summary judgment on this count.

Northwestern alleges Alderman Drummer presented a proposal to Northwestern Vice
President Sunshine which would have excluded some University property from the historic district in

exchange for various monetary contributions to the City, including the return of certain University

-22-



majority of the council members to subject the city to liability under section 1983.” Scort-Harris, 134
F.3d at 438. Moreover, the Seventh Circuit itself appears to have endorsed this logic. In Felton v. Bd.
of Comm'rs, 5 F.3d 198 (7th Cir. 1993), the contract of a Republican county employee was not
renewed and a Democrat was hired to replace him afler two new Democratic members were elected
to the previously all-Republican three-member Board of Commissioners. {n upholding a finding of
municipal liability for political retaliation, the court cmphasized that the evidence established the
discriminatory motive of beth Democratic commissioners, and thereby implicitly acknowledged that
the discriminatory motive of one member of a three member panel is insufficient to establish
municipal liability. /d. at 202 (finding the evidence “sufficient to support the [lowcr] court’s finding
that (at least) a majority of the Board was improperly motivated in its decision . . . .”).

To prevail on its vindictive action equal protection claim, then, Northwestern must show a
majority of the City Council acted solely out of illegitimate animus toward the University. We
believe Northwestern has offered sufficient evidence to survive summary judgment on this question.
Although Northwestern has presented direct evidence of illegitimate animus with respect to only four
of the six aldermen who voted for the Designation Ordinance, see Mem. in Opp’n at 48, the motives
of the remaining two aldermen remain unclear. Nonetheless, the circumstantial evidence suggests
that a rcasonable jury could find that these two aldermen werc also motivated by illegitimate animus.
As such, Northwestern has established genuine issues of material fact which preclude summary
judgment on Count L.

I. Duc Process

In Count III of the Amended Complaint, Northwestern alleges the City’s action was arbitrary,

capricious, and irrational and thereby violated its right to substantive due process. In Count IV,

Northwestern alleges the City violated its right to procedural due process by failing to conduct

-17-



Thus, Northwestern may proceed as a class of one under both the traditional and vindictive action
equal protection standards.

B._ Traditional Equal Protection

In Count II, Northwestern alleges the City violated traditional cqual protection standards by
manipulating the boundarics of the historic district in such a way that University property was
included but the property of other similarly-situated owners was excluded. To establish a traditional
equal protection violation, Northwestern must show that the City intentionally treated it differently
than other similarly-situated parties and that no rational basis cxisted for the differential treatment.
Olech, 528 U.S. at 564. Since the Designation Ordinance neither involves fundamental rights nor
classifies property along suspect lines, it must only pass the “deferential rational basis test.” Martin v,
Shawno-Gresham Sch. Dist., 295 F.3d 701, 712 (7th Cir. 2002). As the party challenging the
ordinance, Northwestem bears the burden of showing that there is no rational relationship between
the boundaries established by the measure and some legitimate governmental objective. See Heller v.
Doe, 509 U.S. 312, 320 (1993). To prevail, Northwestern “must surmount the presumption of
rationality in the city’s ordinances.” Hager v, City of West Peoria, 84 F.3d 865, 872 (7th Cir, 1996).
Because Northwestern has failed to offer sufficient evidence to rebut this presumption, the City is
entitled to summary judgment on this count.

Northwestern claims the City cannot offer any rational justification for its decision to exclude
certain property owned by those who objected to their inclusion in the historic district but not to
exclude property owned by the University. Northwestern points in particular to two modifications to
the Proposed Local District: (1) the City moved the northem boundary of the Proposed Local District

south to Lincoln Street, excluding more than 500 properties from the district, and (2) the City

excluded thirteen adjacent propertics located south of Lincoln Street (the Lincoln 13) after the



DISCUSSION

I. Standard of Review

Summary judgment is proper only when “there is no genuine issue as to any material fact and
the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A genuine issue
for trial exists when “the evidence is such that a rcasonable jury could retum a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). This standard places
the initial burden on the moving party to identify “those portions of the pleadings, depositions,
answers to interrogatorics, and admissions on file, together with the affidavits, if any, which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986) (citations and internal quotations omitted). Once the moving party has met this
burden of production, the nonmoving party “must set forth specific facts showing that there is a
genuine issue for trial.” Fed.R.Civ.P. 56(¢). In determining whether a genuine issue of material fact
exists, “we must construe all facts and draw all reasonable inferences in the light most favorable to
the nonmoving party.” Nelson v. Sandoz Pharmaceuticals Corp., 288 F.3d 954, 962 (7th Cir. 2002).
IL_ Equal Protection

In Count I, Northwestern alleges the City violated its right to equal protection by vindictively
including University property in the Final Local District in retaliation for the University's refusal to
make financial contributions to the City. In Count I, Northwestern maintains the City violated its
right to cqual protection by including University property but cxcluding property of similarly-
situated parties in a manner that was not rationally related to any legitimate government intercst. We

find the City is entitled to summary judgment on Count II, but Northwestern has established genuine

issues of matcrial fact which preclude summary judgment on Count I.



After these modifications, the City Council passed the ordinance (“Designation Ordinance”)
adopting the local historic district (“Final Local District”) by a 6-3 vote. Aldermen Arthur Newman,
Steven Bernstein, Gene Feldman, Ann Rainey, Joseph Kent, and Melissa Wynne voted for the
Designation Ordinance, while Aldermen Stephen Engelman, Dennis Drummer, and Edmund Moran
voted against it, Mayor Lorraine Morton then vetoed the Designation Ordinance, but the City Council
overrode her veto by an identical 6-3 vote.

Northwestern then filed this lawsuit against the City pursuant to 42 U.S.C. § 1983, alleging
that the City’s action violated a number of the University’s constitutional rights. Count I of the
Amended Complaint? alleges the Designation Ordinance violated Northwestern’s right to equal
protection because it was motivated by illegitimate animus toward the University. Count LI alleges
the City treated Northwestern differently than similarly-situated partics for no rational reason and
thereby violated the University’s right to equal protection. Count III alleges the City’s action was
arbitrary, capricious, and irrational and thercby violated Northwestern’s right to substantive due
proccss. Count IV alleges the City violated Northwestern’s right to procedural due process by failing
to conduct hearings on modifications to the Proposed Local District. Count V alleges the City
imposed an unconstitutional condition on the University’s right, guaranteed under its Charter, to be
free from property taxation. Count VI alleges the Designation Ordinance violated Northwestern’s
First Amendment right to conduct expressive activities on its property located within the Final Local

District. The City has moved for summary judgment on each of these counts.

° Northwestern, which filed its original complaint on ____, submitted an amended complaint on

-5-



hearings on modifications to the Proposed Local District. We find the City is entitled to summary
judgment on cach of these counts.

A. Substantive Due Process

In Count II, Northwestern claims the Designation Ordinance violates its right to substantive
due process. To prevail on this count, Northwestern must show that the City’s action was either (a)
an infringement of a fundamental liberty interest or (b) “arbitrary and unreasonable, having no
substantial relation to the public health, safety, morals, or general welfare.” Pro-Eco, 57 F.3d at 514.
Northwestern, a duly-authorized corporation under the laws of the State of Illinois, rightly refrains
from claiming an infringement of a fundamental right. See National Paint & Coatings Ass'n v, City
of Chicago, 45 F.3d 1124, 1129 (7th Cir. 1995) (“Corporations do not have fundamental rights; they
do not have liberty interests, period.”). Thus, Northwestern must show the ordinance fails the rational
basis test, that is, the ordinance was “arbitrary and unreasonable,” or, as the Seventh Circuit
interprets this phrase, “invidious or irrational.” Coniston Corp. v. Village of Hoffman Estates, 844
F.2d 461, 467 (7th Cir. 1988). Northwestern’s burden here is heavy — “‘governmental action passes
the rational basis test if a sound reason may be hypothesized. The government need not prove the
reason to a court’s satisfaction.”” Pro-Eco, 57 F.3d at 514 (quoting Northside Sanitary Landfill, Inc.
v. City of Indianapolis, 902 F.2d 521, 522 (7th Cir. 1990)).

Northwestern argues the Designation Ordinance was invidious or irrational because it was
designed to extort funds from the University. The City, on the other hand, claims the Designation
Ordinance was motivated by several legitimate goals, among them, historic preservation and the
protection of the neighborhood from institutional cxpansion. We need not decide, thougb, what
motivation the City actually had in passing the Designation Ordinance. See id. (to pass rational basis

test, defendant must offer sound hypothetical reason for its action). The City has offered several

~18-



position.” LHilton y. City of Wheeling, 209 F.3d 1005, 1008 (7th Cir. 2000). Despite this clear
statement, subsequent opinions in the Seventh Circuit have inconsistently identificd the standards

governing class of one equal protection claims."

For example, in Purze v. Village of Winthrop
Harbor, 286 F.3d 452, 455 (7th Cir. 2002), the Seventh Circuit, citing /fi/ton, required the plaintiff in
a class of one case to prove that the differential treatment was motivated by subjective ill will. In
Nevel v. Village of Schaumburg, No. 01-1966, 2002 WL 1729524, at *1 (7th Cir, July 26, 2002),
though, the Seventh Circuit held that to suceced under a class of one equal protcction theory,
plaintiffs “must show that they were (1) intentionally treated differently from others similarly
situated and that there is no rational basis for the difference in treatment or (2) that the government is
treating unequally those individuals who are prima facie identical in all relevant respects, and that the
cause of the differential treatment is a totally illegitimate animus toward the plaintiff by the
defendant.” Jd. (emphasis added) (internal quotations omitted) (citing 4/biero v. City of Kankakee,
246 F.3d 927, 932 (7th Cir. 2001)). While Purze suggests a class of one plaintiff can only bring a
vindictive action equal protection claim, Nevel indicates a class of onc plaintiff can pursue both a
vindictive action cqual protection claim and a traditional cqual protection claim.

We believe that Nevel, the Seventh Circuit’s most recent opinion on this subject, states the
proper standards goveming class of one equal protection claims. Nevel is more faithful to the
Supreme Court’s decision in Olech — it incorporates both the traditional equal protection standard
endorsed by the Supreme Court and the vindictive action equal protection standard recognized by the
Seventh Circuit. The Seventh Circuit’s subsequent attempts in Hilton and Purze to narrow the range

of options available to class of one equal protection plaintiffs simply cannot be squared with Olech.

'° See the Court’s reasoning in Olech v, Village of Willowbrook, No. 97-C-4935, 2002 WL 1058843, at *14-
16 (N.D.I. May 24, 2002).



V. Freedom of Expression

In Count VI, Northwestern claims the City violated its First Amendment rights by enacting
an historic district designed to freeze campus development and thus inhibit its expressive activities.
We find the City is entitled to summary judgment on this count.”

Content-neutral regulations* which imposc an indirect burden on expressive activitics may
pose First Amendment concerns. See Univ. of Pa. v. Equal Employment Opportunity Comm., 493
U.S. 182, 200 (1990) (citing Heffron v. Int'l Soc. for Krishna Consciousness, Inc., 452 U.S. 640
(1981) and NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958)). In this case, however,
Northwestern has failed to provide any evidence that the Designation Ordinance actually burdens
expressive activity. On the 18.84 acres of University property included in the Final Local District,
Norihwestern and its faculty and students may still engage in expressive activity impeded only by the
requirement that the University apply for a COA prior to modifying any of its structures. The
University, however, has not yet even applied for a COA under the Designation Ordinance, and has

offered no evidence to suggest why the mere application process itself burdens expressive activity.”

2 The City contends that Northwestern lacks standing to pursue this claim because the University itself does
not have First Amendment interests at stake; instead, the City maintains that the Designation Ordinance
arguably threatens only the expressive activity of the University’s faculty and students. Northwestern attempts
to evade this objection by arguing that it deserves the same constitutional protections as bookstores, theaters,
or cable television systems because it “acts as a conduit facilitating speech and related expressive activitics
of others.” Mem. in Opp’n at 53 (citing City of Renton v, Playtime Theatres, Inc., 475 U.S. 41 (1986) (adult
theater); Schad v. Borough of Mt. Ephraim, 452 U.S. 61 (1981) (same); Turner Broad. Sys., Ine. v. FCC, 512.
U.S. 622 (1994) (cable system)). Because we find that the City is entitled to judgment as a matter of law on
this count on other grounds, we need not resolve this issue.

2 Northwestern acknowledges that the Designation Ordinance is not content-based. See Mem. in Opp’n at
55.

%* Northwestern makes much of the City’s alleged illicit motivation for the Final Local District ~ the desire
to “freeze” campus development, The Supreme Court and the Seventh Circuit, however, have consistently
denied the relevance of legislative motive in evaluating First Amendment challenges to content-neutral,
generally-applicable laws affecting speech. See United States v. O’Brien, 391 U.S. 367, 383 (1968) (holding
in First Amendment context that courts may not “strike down an otherwise constitutional statute on the basis
of an alleged illicit legislative motive”); DiMa Corp. v. Town of Hallie, 185 F.3d 823, 828 (7th Cir. 1999)

-24-



‘Minute Order Form {06'97)

United States District Court, Northern District of Illinois

Mail AO 450 form.

Name of Assigned Judge 7 Sitting Judge if Other
or Magistrate Judge Marvin Aspen than Assigned Judge
CASE NUMBER 00 C 7309 DATE 9/11/2002
CASE Northwestern University vs. The City of Evanston
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (h) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
ag oa Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) Oo Answer brief to motion duc . Reply to answer brief due. :
(4) o Ruling/Hearing on set for at
(3) a Status hearing re-set for 10/3/2002 at 10:30 A.M..
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at.
(7) Oo Trial[set for/re-set for]on at
(8) oO [Bencl/Jury trial] [Hearing] held/continued to____aat
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CIFRCP4(m) Cl Local Rule 41.1 CFRCP41(a)(1)  ( FRCP41(a)(2).
ao wf [Other docket entry] | Enter Memorandum Opinion and Order: The City’s motion for summary
judgment(46-1) is granted with respect to Counts IJ, III, IV, and VI and denied with respect to Counts I
and V. The status hearing set for 9/12/02 is stricken.
(11) [For further detail see order attached to the original minute order,]
No notices required, advised in open court. ‘Dociiient ©
Number
No notices required. _rumber of notigns
wv | Notices mailed by judge's staff.

Notified counsel by telephone.

Docketing to mail notices.

Copy to judge/magistrate judge.

GL

Rs

courtroam. dace mailed notice

deputy’s

inige cL
initials

Date/time received in
central Clerk's Office

mailing deputy initiole



The City, however, offers several plausible justifications for its decision not to remove
University property, only one of which we need address here — the City suggests there is a greater
need for the protections secured by the Preservation Ordinance south of Lincoln Street, noting in
particular the danger posed by potential further University expansion in residential neighborhoods
west of Sheridan Road."? See Mem. in Support at 31-32. This alone provides a rational basis for the
City’s decision to exclude the Lincoln 13 but not University property — the control of institutional
expansion is a legitimate government objective, see Cohen v. City of Des Plaines, 8 F.3d 484, 494
(7th Cir. 1993) (holding that “{a] city may usc zoning regulations as an exercise of the police power
to protect residents from the ill effects of urbanization, such as crowding, encroachment of
commercial business or industries, traffic congestion, and noise”), and the Designation Ordinance,
which prevents demolition and construction without approval from the Commission, is rationally
related to this legitimate objective.

Of course, this justification implies Northwestern was, as it alleges, the “target” of the
ordinance, That Northwestern may have been the target of legislation, however, does not violate its

right to cqual protection. In Pro-Eco, Inc. v. Bd. of Comm'rs of Jay County, Indiana, 57 F.3d 505

” Northwestern argues that this rationale “can be refuted by the University’s authorized and long-standing
presence in the Tl and T2 Districts, and the City’s inclusion of Institutional Structures which are already west
of Sheridan Road, inherently institutional, and not single-family residential structures . . . . [f the City wanted
to preserve the homes on Orrington Avenue, it could have imposed the Final Local District only on those
properties rather than burdening the University’s properties.” Mem. in Opp’n at 53. The fact that
Northwestern already owns property in the T| and T2 Districts, however, does not explain away the City’s
concerns. The City fears two forms of potential institutional expansion: (1) Northwestern may purchase more
single-family residences in the T] and T2 Districts and convert these properties to institutional uscs, and (2)
Northwestern may demolish the single-family residences that it owns or in the future purchases and construct
larger buildings. These are both plausible concerns, Of course, as Northwestern points out, the City could
have addressed these coneems by designing a non-contiguous historic district, including in the Final Local
District only those structures originally built as single-family residences and excluding the University’s
Institutional Structures. However, while the Preservation Ordinance does permit the City to construct non-
contiguous historic districts, it does not require the City tu do so, and the City could have reasonably believed
that it was simply easier to design and publicize a contiguous historic district.

-)1-



property owners unanimously objected to their inclusion. See Am, Compl. ff] 95-96; Pl. SMF J 330-
31, 348-53. Northwestem, which also objected to inclusion, maintains that its property should have
been excluded from the historic district as well.

With respect to the City’s first modification, Northwestern’s claim is not viable.
Northwestern alleges that the owners of morc than 300 properties north of Lincoln Street signed a
petition opposing their inclusion in the historic district and that the City subsequently excluded all
property north of Lincoln Street. See Am. Compl. | 95. In so doing, however, the City also excluded
7.05 acres of University property located north of Lincoln Street. Def. SMF 4] 121. Thus,
Northwestern cannot complain of differential treatment with respect to this decision because it was
not in fact treated differently than other similarly-situated property owners — like other objecting
property owners north of Lincoln Street, its property in that arca was excluded from the Final Local
District.

With respect to the City’s second modification, Northwestern has failed to provide sufficient
evidence to prevail. The City’s decision to exclude the Lincoln 13 is easily explainable — when a
small, organized block of adjacent landowners opposes a zoning change, the block often gets its
way.'' The fact that the City’s only justification for removing the Lincoln 13 was their opposition to
inclusion does not make the resulting boundary irrational, at least in the constitutional sense of the
word, for “{t]he opinion of arca residents concerning neighborhood preservation is an appropriate
factor for consideration in zoning decisions.” Nelson v. City of Selma, 881 F.2d 836, 840 (9th Cir.
1989), Nonetheless, Northwestern complains that if opposition to inclusion explains the removal of

the Lincoln 13, its property south of Lincoln Street should also have been removed.

‘| See generally Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups 28-
29 (1971) (arguing that group size is inversely related to successful collective action).

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A. “Class of One” Equal Protection Claims

Before addressing thesc counts, we briefly address recent confusion over the standards
governing so-called “class of one” equal protection claims, that is, equal protection claims brought by
a single individual rather than a class of similarly-situated partics. In Village of Willowbrook v.
Olech, 160 F.3d 386 (7th Cir. 1998), a marricd couple alleged that city officials, in retaliation for a
lawsuit they had won against the city, demanded a 33-foot easement before connecting their home to
the city water supply, while requiring only 15-foot easements from other similarly-situated
homcowners. The Seventh Circuit held that the plaintiffs had stated a “vindictive action” cqual
protection claim, but noted that such cases “require[ | proof that the causc of the differential
treatment . . . was a totally illegitimate animus toward the plaintiff by the defendant.” Jd, at 388. The

Supreme Court affirmed, but on different grounds — the Court held that plaintiffs’ “allegations, quite
apart from the Village’s subjective motivation, are sufficient to state a claim for relief under
traditional equal protection standards,” and refused to rcach “the alternative theory of ‘subjective ill
will’ relied on” by the Seventh Circuit. Village of Willowbrook v, Olech, 528 U.S. 562, 565 (2000).
Thus, the Supreme Court indicated that an equal protection plaintiff may proceed as a class of one if
it alleges that it was intentionally treated differently than other similarly-situated parties and that no
rational basis existed for the differential treatment. Jd. at 564.

The Seventh Circuit, however, citing ambiguous language in the Supreme Court’s opinion
and the danger of involving the federal courts in the enforcement of “petty” state and local laws,
anounced in a subsequent case that it would continue to “gloss ‘no rational basis’ in the unusual
setting of ‘class of one’ cqual protection cases to mean that to make out a prima facie case the

plaintiff must present evidence that the defendant deliberately sought to deprive him of the cqual

protection of the laws for reasons of a personal nature unrelated to the dutics of the defendant’s

-7-



process.” /d, Although dicta,” this statement suggests the Designation Ordinance, even if specifically
targeted at the University, was a legislative act that did not require a hearing.

The court reached a similar conclusion in L C & S, Inc. v. Warren County Area Plan
Comm'n, 244 F.3d 601 (7th Cir. 2001). In that case, the county’s planning commission, responding
to rumors that the plaintiffs were planning to open a topless or gay bar, amended the zoning
ordinance without notice, forcing the plaintiffs to seck a special zoning exception for a building they
had already leased. After the exception was denied, the plaintiffs sued the commission, charging that
the amendment to the zoning ordinance was an adjudicative act because it was aimed solely at them.
Although the court acknowledged the plaintiffs were the “target” of the amendment, it denied that
this established that the amcndment was adjudicative rather than legislative, noting “[i]t is utterly
commonplace for legislation to be incited by concern over one person or organization,” /d. at 604.
“Not the motive or stimulus, but the generality and consequences, of an enactment determine whether
it is really legislation or really something else.” Jd. Where an enactment applies equally to all within
its reach and operates prospectively, it is bona fide legislation, Jd. at 605. The court held that the
generality and prospectivity of the amendment indicated it was legislation, and therefore no notice or
hearing was constitutionally required. Jd.

These cases indicate Northwestern was not entitled to a hearing, Even if the Designation
Ordinance was specifically targeted at the University, its generality and prospectivity suggest it was a
legislative rather than an adjudicatory act. The generality of the Designation Ordinance is

demonstrated by the inclusion of numerous property owners (some of whom objected to their

”) The court did not reach the question of whether Pro-Eco was entitled to a hearing because the company
admitted that it was aware of the public hearing scheduled to discuss and adopt the moratorium, that a
representative of the company attended the meeting, and that the company’s representative was not denied
an opportunity to speak. Jd. The court held that “{t]his was all ‘that due process in zoning could possibly be
thought to require.’” Jd. (quoting Coniston, 844 F.2d at 469).

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historic district (“Proposed Local District”) to the Preservation Commission. The Proposed Local
District expanded the boundaries of the National District, including (among other properties) 22
additional University tracts located within the T2 District.‘ Property located within a local historic
district requires a Certificate of Appropriateness (“COA”) from the Preservation Commission prior to
the commencement of any exterior alteration, construction, demolition, or relocation of affected
properties.’ Fearing hindrance of its ability to develop its property, Northwestern objected to the
inclusion of its T!] and T2 District property in the Proposed Local District.

The Preservation Commission conducted public hearings on the Proposed Local District, and
University officials were present at most, if not all, of the hearings. On January 13, 2000,
Northwestem submitted its objections to the inclusion of its properties within the Proposed Local
District in a five-page letter to Preservation Commission Chairwoman Jessica Deis and attached a 38-
page written report in opposition to the Proposed Local District prepared by an architectural expert.
Over these objections, the Preservation Commission submitted a report to the City Council
recommending the adoption of the Proposed Local District.

Following this recommendation, the City Council’s Planning and Development Committee

(“Committee”) also held public hearings on the Proposed Local District, The University again

4 As noted earlier, NEHDA excluded these T2 District properties trom the National District. NEHDA claimed
it excluded these properties because “the National Register does not allow the inclusion of discontiguous [sic]
properties .... and [the T2 District properties] were separated from the main body of the district by parking
lots or other non-residential uses.” Def. Ex. 40 (NEHDA’s Proposed Local District Nomination). The
Preservation Ordinance, on the other hand, docs not restrict the inclusion of non-contiguous properties in
local historic districts.

* Prior to the local historic district at issue in this case, Northwestern owned 33 properties containing 37
structures which were subject to the Preservation Ordinance. Def. SMF 14. Since 1994, the Preservation
Commission has approved at least seven University requests for a COA. Pl. Resp. to Def. SMF ¥ 18.
Northwestem maintains that these requests were for only “minor modifications” such as window
replacements, and that in two of these cases the Preservation Commission review process was “difficult” or
“lengthy.” 7d.

3.



The City advances several arguments for summary judgment. First, the City offers evidence
suggesting Northwestern was not singled out for differential treatment, an essential element of a
vindictive action equal protection claim. For example, the City maintains that Northwestern owns
only 56 of the 375 structures and approximately 21% of the acreage included in the Final Local
District.'> While Northwestern is not the only property owner affected by the Designation Ordinance,
it has offered prima facie evidence that its property, unlike that of others, was specifically targeted
for inclusion in the Final Local District. In particular, the late amendment which added the
University’s T2 District properties (most of which were non-contributing Institutional Structures) to
the Final Local District raises serious questions about the City’s motive.'*

Second, the City argucs that any aninws it may have toward Northwestern University is not
in fact illegitimate. The City suggests it is perfectly rational to harbor animus for an institution which
fails to pay for the provision of City services and which threatens to encroach on existing residential
neighborhoods. While the City’s frustration with the University is understandable, animus against an
entity which is merely exercising a right under its charter to be free from property taxation simply

cannot be described as legitimate.

‘5 Northwestem claims o own 62 structures and at least 30% of the acreage in the Final Local District. See
PI. Resp. to Def. SMF § 68; Pl. SMF 375.

‘6 Although this amendment also added non-University property to the Final Local District, this fact alone
does not establish that Northwestern was not singled out for differential treatment. If the amendment would
not have passed but for the inclusion of Northwestern’s T2 properties, then some University property was in
effect singled out for inclusion in the Final Local District

-14-



of precedent indicated that a “plaintiff must adduce evidence sufficient to show that a majority of the
members of the legislative body acted from a constitutionally proscribed motive before . , . municipal
liability can attach,” id. at 437 (citing United States v. City of Yonkers, 856 F.2d 444, 457-58 (2d Cir.
1988) and Church v. City of Huntsville, 30 F.3d 1332, 1343-44 (11th Cir. 1994)), while another line
of precedent, “principally in the areas of race and gender discrimination,” suggested municipal
liability would attach if a plaintiff could offer “evidence of both (a) bad motive on the part of at least
a significant bloc of legislators, and (b) circumstances suggesting the probable complicity of others.”
Scott-Harris, 134 F.3d at 437-38 (citing United States v. City of Birmingham, 538 F.Supp 819, 828
(E.D.Mich. 1982), aff'd, 727 F.2d 560 (6th Cir. 1984) and United States v. Yonkers Bd. of Educ., 837
F.2d 1181, 1221-23 (2d Cir. 1987)). The court held that, even under the more relaxed “significant
bloc” approach, the plaintiff's evidence with respect to two of nine council members was insufficient
to establish municipal liability.'”

The question before us, then, is this: what percentage of members of a legislative body must
be moved by a constitutionally impermissible motive before the municipality itself may be held liable
under § 1983 for the adoption of a facially neutral ordinance? Having been squarely presented this
question, we hold that to establish municipal liability based on the discriminatory motive of a multi-
member body, the plaintiff must show that a majority of its members acted with discriminatory
intent. This position is consistent with both the logic of municipal liability and the weight of
precedent, As the Scott-Harris court itself recognized, “because a municipal ordinance can become

law only by a majority vote of the city council, there is a certain incongmuity in allowing fewer than a

'? We note, though, that the court assumed the validity of the “significant bloc” approach without deciding
the question. Scort-Harris, 134 F.3d at 438 (“we assume for argument’s sake (but do not decide) that in a
sufficiently compelling case the requirement that the plaintiff prove bad motive on the part of a majority of
the members of a legislative body might be relaxed . . . .”). This important detail was somehow omitted from
Northwestem’s brief. See Mem. in Opp’n at 48.

-16-



fucled a long-running dispute with Evanston — Evanston believes Northwestern should make
voluntary financial contributions to offset the cost of services provided by the City, but the
University has refused to make such contributions, Northwestem alleges this dispute led the City to
include two large parcels of land containing numerous University properties in an historic
prescrvation district in an effort to pressure the University to make such contributions.

The effort to create an historic preservation district in Evanston began in 1997 when an ad
hoc citizens’ group, the Northeast Evanston Historic District Association (“NEHDA”), proposed the
designation of a portion of land in the northeast scction of the City as a National Historic District
(“National District”). Among the properties included in the National District were 26 University
properties located within the T] Transitional Campus District (“T1 District”). The National District,
however, did not include any University property within the T2 Transitional Campus District (“T2
District”).? Although the creation of the National District did not place any restrictions on University
property, Northwestern objected to the inclusion of its T1 District properties within ihe National
District. Despite Northwestern’s objections, the Evanston Preservation Commission (“Preservation
Commission”) and the Illinois Historic Preservation Agency recommended approval of the National
District, and on August 12, 1999, the United States Department of Interior approved the National
District and listed it on the National Register of Historic Places.

NEHDA next sought the designation of a local historic district under the City’s Preservation

Ordinance (“Preservation Ordinance”). On October 19, 1999, NEHDA submitted its proposed local

3 The T1 District is adjacent to a residential neighborhood running along Orrington Avenue. The University
propertics within the T] District contain structures originally built as single-family residences but which are
now mostly used as offices or research facilities. The T2 District is largely separated trom the Orrington
Avenue residential neighborhood by the T1 District. The University properties within the T2 District contain
some structures originally built as single-family residences as well as larger, institutional structures
(“Institutional Structures”) such as the Blomquist Recreation Center, the Transportation Center, the Foster-
Walker Undergraduate Housing Complex, and Searle Hall.

-2-



Even if Northwestem offered such evidence, we would find the alleged burden on expressive
activity here too speculative and attenuated to state a claim for relict. See Univ. of Pa., 493 U.S. at
200 (rejecting university’s First Amendment claim as “speculative” and “attenuated’”’), Assuming that
the COA requirement burdens expressive activity (in our opinion, an untenable assumption), any
alleged injury is purely speculative absent a denial of a COA, and Northwestern has not yet even
applied for a COA. Morcover, allowing this attenuated claim to proceed would threaten the City’s
efforts to enforce other generally applicable laws against the University. See id. As the Supreme
Court has noted, “a university cannot claim a First Amendment violation simply because it may be
subject to taxation or other government regulation.” /d, at 200. Thus, even if the Designation
Ordinance does have an incidental effect on Northwestern’s expressive activity, the City has the right
to enact generally applicable laws and to enforce them against the University. Accordingly, the City
is entitled to summary judgment on Count VI.

CONCLUSION
For the foregoing reasons, the City’s motion for summary judgment is granted with respect to

Counts H, II, IV, and VI and denied with respect to Counts I and V.

Of
7 On |

“MARVIN E. ASPBN___

United States District Judge

It is so ordered.

Dated i If oe

(“The actual motives of those who cnacted the ordinance are irrelevant to our First Amendment analysis”);
Grossbaum v. indianapolis-Marion County Bldg. Auth,, 100 F.3d 1287, 1290 (7th Cir. 1996) (“motive ofa
government body is irrelevant when it enacts a content-neutral rule that regulates speech in a nonpublic
forum”), Evidence of the City’s alleged illicit motives is therefore irrelevant to our judgment on this count.

-25-



UNITED STATES DISTRICT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
NORTHWESTERN UNIVERSITY, )
Plaintiff,
v. } No. 00 C 7309
THE CITY OF EVANSTON, }
Defendant. } D
MEMORANDUM OPINION AND ORDER OCKE TE

SEP 7
MARVIN E. ASPEN, Judge: “ 2002

Plaintiff Northwestern University (“Northwestern” or “University”) alleges that the City of
Evanston (“Evanston” or “City”) designed and enacted an historic preservation district which
wrongfully encompassed numerous University properties. Northwestern sued Evanston pursuant to
42 U.S.C. § 1983, claiming the City’s action imposed an unconstitutional condition on the University
and violated its rights to equal protection, duc process, and freedom of speech, Presently before us is
the City’s motion for summary judgment. For the reasons set forth below, the motion is granted in
part and denied in part.

FACTUAL BACKGROUND'

Northwestern currently owns approximately 240 actes of land in Evanston. Under the terms

of a charter (“Charter”) granted by the State of Illinois in 1851 and amended in 1855, this land is

exempt from property taxation.” Northwestem claims that its cxcmption from property taxation has

’ The following facts, unless otherwise specified, are taken from the City’s answer (Ans.) and the parties’
statements of undisputed material facts (SMF) required by Local Rule 56.1.

? Tllinois law also exempts all non-profit educational institutions from taxation on property used for school
purposes. See 35 TLCS 200/15-30.



(7th Cir, 1995), the county board, after leaming that Pro-Eco was preparing to develop a landfill,
adopted an ordinance banning landfills within the county. Pro-Eco sued, arguing the ordinance
violated its right to equal protection by singling it out for unfair treatment. The Seventh Circuit
rejected the claim, drawing a sharp distinction between cascs involving “enforcement” and
“enactment.” /d. at 515 (‘“Pro-Eco does not present us with a casc of enforcement; it presents us with
a case of enactment”), With respect to uncqual enforcement, the court acknowledged that an
“ordinance gencrally applicable on its face but enforced for no legitimate reason against only an
individual or a particular class may violate the Equal Protection Clause.” /d. (citing Yick Wo v.
Hopkins, 118 U.S. 356, 373-74 (1886) and Esmail v. Macrane, 53 F.3d 176, 179-80 (7th Cir. 1995)).
With respect to uncqual enactment, however, the court explained that “legislatures may enact
gencrally applicable legislation as a prophylactic to the danger posed by one particular actor as long
as the end of the legislation is legitimate and . . . the means are rationally related to the ends.” Jd.
Like the county ordinance in Pro-Eco, the City’s Designation Ordinance, although motivated by
concern over one particular actor, is generally applicable legislation which is rationally related to a
legitimate government objective. As such, it does not violate the Equal Protection Clause.
Northwestem contends, though, that the City’s institutional expansion argument is mere
pretext for its rcal motivation — the extortion of funds from the University. The Supreme Court,

however, has generally cschewed inquiry into a legislature’s subjective motivations in traditional

' The court did acknowledge that “an ordinance may contain language of general applicability and still
violate the Equal Protection Clause without a showing of unfair enforcement.” Pro-Eco, 57 F.3d at 5 iSn.11.
The court suggested that “whore |) the language of the statute, while not identifying any individual by name,
could apply only to one person, and 2) such a classification would not rationally relate to a legitimate
governmental end,” the legislation would essentially amount to an unconstitutional bill of attainder. /d. (citing
Falls v. Town of Dyer, Ind., 875 F.2d 146 (7" Cir, 1989)), In the present case, however, the language of the
Designation Ordinance does not apply to Northwestern alone - many other property owners are included in
the Final Local District it established — so the University may not take advantage of this exception.

-12-



Third, the City contends illegitimate animus is not the sole cause of the differential treatment,
citing numerous other possible motivations for the Designation Ordinance.'’ Northwestern, however,
has presented sufficient evidence to meet its burden of production on this issuc. In particular, a
reasonable jury could find that the sole cause of the late amendment which added Northwestern’s T2
District properties to the Final Local District was the City’s animus toward the University.

Finally, the City maintains that to establish municipal liability under § 1983, Northwestem
must prove that a majority of the members of the City Council supported the Designation Ordinance
based on an illegitimate motive. Although there is certainly evidence that some aldermen harbored ill
will toward the University, the City contends Northwestern has not shown that the council ay a whole
acted out of illegitimate animus. Since Northwestem has offered evidence of discriminatory intent
with respect to only four of the nine Council members," the City claims it is entitled to summary
judgment.

Northwestern insists it need only show that a “significant bloc” of aldermen were motivated
by discriminatory intent, citing Scott-Harris v. City of Fall River, 134 F.3d 427, 438 (1st Cir. 1997),
rev'd on other grounds, 523 U.S. 44 (1998). In that case, the plaintiff charged that she had been
terminated by the nine-member city council in retaliation for her cxercise of constitutionally
protected speech. The plaintiff provided evidence that two members of the council acted with a

retaliatory motive. The court acknowledged precedent supporting two competing positions - onc line

‘7 Northwestern suggests that the City’s illegitimate animus need only be a “controlling motivation” for it to
prevail. See Mem, in Opp’n at 29-30. This position, however, conflicts with the plain language of A/biero,
in which the Seventh Circuit held that a plaintiff must show that “[iJll will is the sole cause of the complained-
of action” to prevail. Albiero, 246 F.3d at 932 (emphasis added), Northwestern offers no persuasive reason
to disregard this clear rule

* Northwestern acknowledges it offered evidence of illegitimate animus for only four aldermen. See Mem.

in Opp’n at 48 (arguing that “a significant bloc of aldermen (Newman, Rainey, Bernstein and Feldman) have
repeatedly expressed illegitimate animus toward the University”).

-15-