Fiascone, Thayer, and Anglin in their individual and official
capacities.

Summary Judgment Standard

Summary judgment is appropriate where the record shows that
there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. Lexington Ins.
Co. v. Rugg & Knopp, 165 F.3d 1087, 1090 (7th Cir. 1999); Fed. R.
Civ. P. 56{c). I must construe all facts in the light most
favorable to the non-moving party and draw all reasonable and
justifiable inferences in favor of that party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). "The nonmoving party must
offer something more than a ‘scintilla' of evidence to overcome
summary judgment . . . and must do more than ‘simply show that
there is some metaphysical doubt as to the material facts.'" Roger
Whitmore's Auto. Servs. v. Lake County, Iil., 424 F.3d 659, 667
(7th Cir. 2005) (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)).

Analysis

Plaintiffs argue that the denial of a second permit to Bernard

denied them equal protection of the law because Petar Scopu

received two permits to build on similarly situated property.’

?Bernard has argued and set forth facts showing that Scopu’s
property was similarly situated to his property. Defendants have
not disputed these assertions or argued that the two properties
are not similarly situated. Therefore, for the purposes of this
motion, I will accept Bernard’s assertions and assume that the

5


statutory duty, although a violation of the statute, is not without
more a denial of the equal protection of the laws.”); Sioux City
Bridge Co. v. Dakota County, 260 U.S. 441, 447 (1923) (cited by
Olech and stating “mere errors of judgment do not support a claim
of discrimination, but that there must be something more --
something which in effect amounts to an intentional violation of
the essential principle of practical uniformity.”); Ciechon v.
City of Chicago, 686 F.2d 511, 522 (7th Cir. 1982) ("error or
mistake in the application of the law [does not by itself] give
rise to an equal protection claim"). The decision denying Bernard
a second permit was made in reliance on the ZBA affirmation of
Proczko’s staff interpretation finding that Bernard’s property was
a single zoning lot. Proczko’s interpretation was detailed,
reasoned, and made in consultation with a village attorney. The
deposition and affidavits of Proczko, Thayer, Anglin, and Fiascone
all state that their decisions were based upon an attempt to apply
the zoning code to the situation and nothing more. Bernard and his
attorney did raise the issue of the Scopu property at the hearing,
but the ZBA was counseled that the situation was distinguishable.
Under these circumstances, there is no evidence to support a
conclusion that defendants were attempting to treat Bernard worse
than Scopu. See Tuffendsam, 385 F.3d at 1127.
Bernard has failed to show that there is a genuine issue of

material fact as to whether defendants intentionally discriminated

10


requirement in an equal protection claim, the Seventh Circuit
stated:

[I]ntentionality is an ambiguous concept, shading at one

end into mere knowledge of likely consequences and at the

other into a desire for those consequences. The county

health board ‘intentionally’ treated the plaintiff worse

than it treated her predecessors and neighbors in the

sense that it knew--it had to know--that its pattern of

enforcement was uneven. But it did not ‘intentionally

treat the plaintiff worse in the sense of wanting her to

be made worse off than those others. And it is the latter

sense in which a ‘class of one’ case requires a showing

that government ‘intentionally’ treated the plaintiff

worse than others. In other words, we don't think the

Supreme Court in Olech intended to overrule Personnel

Administrator of Massachusetts v. Feeney, which holds

that an official ‘intends’ a consequence when he acts

because rather than in spite of it.

Tuffendsam v. Dearborn County Bd. of Health, 385 F.3d 1124, 1127
(7th Cir. 2004) (citations omitted); See also Snowden v. Hughes,
321 U.S. 1, 8 (1944) (“The unlawful administration by state
officers of a state statute fair on its face, resulting in its
unequal application to those who are entitled to be treated alike,
is not a denial of equal protection unless there is shown to be
present in it an element of intentional or purposeful
discrimination.”).

Based on the assumption that Bernard’s property and Scopu’s
property are similarly situated, the events in this case can be
characterized in one of two ways. If both properties constitute
single zoning lots, defendants properly denied Bernard a second

permit and improperly granted one to Scopu. Conversely, if both

properties consist of two zoning lots, defendants improperly denied

7


Because plaintiffs do not claim membership in a protected class,
this action is a class of one equal protection claim. Defendants,
quoting Hilton v. City of Wheeling, argue that summary judgment is
appropriate because a class of one equal protection claim requires
a showing that defendants “deliberately sought to deprive him of
equal protection of the laws for reasons of a personal nature

” 209 F.3d 1005, 1008 (7th Cir. 2000). Plaintiffs concede an
absence of evidence of ill will in this case, but correctly point
out that they alternatively may establish a class of one equal
protection claim by showing that they “ha[ve] been intentionally
treated differently from others similarly situated and there is no
rational basis for the difference in treatment.” Willowbrook v.
Olech, 528 U.S. 562, 564 (2000); See also Lauth v. McCollum, 424
F.3d 631, 634 (7th Cir. 2005) (explaining the two different methods
of establishing an equal protection claim).

In stating their claim under the Olech standard, plaintiffs
argue that the evidence supports a finding of intentional
discrimination because “it is clear that the Village and its
officials were acting intentionally when they issued Mr. Scopu or
his successor in interest two building permits and when they denied
Mr. Bernard the right to build on his lot 20.” A showing of
intentional discrimination under the equal protection clause

requires more, however. In a case explaining the intentionality

two properties are similarly situated.

6


otherwise, if government decisionmakers ‘erroneously applied [a
statute] in a single case, they could never again apply it
correctly without violating equal protection.’”) (citations
omitted) (quoting E & T Realty, 830 F.2d at 1114). The issue of
whether the two lots that comprised Scopu’s property constituted a
single zoning was not raised at any point when Scopu applied for
the two permits.‘ The defendants’ failure to recognize and
adjudicate this issue in Scopu’s case, however, does not entitle
Bernard to the same failure and the same result.

Alternatively, assuming that defendants erroneously denied
Bernard a second permit, there is also no evidence of an equal
protection violation in this case. Plaintiffs have not brought
forth any evidence (and I have found none in the record) that
indicates that defendants’ decisions were not made in good faith.
When a government official makes an error of judgment that leads to
differential treatment in the application of a law, that mistake
alone does not constitute intentional discrimination under the
equal protection clause. See Snowden, 321 U.S. at 8 (“where the
official action purports to be in conformity to the statutory

classification, an erroneous or mistaken performance of the

‘ The fact that defendants never addressed the issue of
whether Scopu’s property was a single zoning lot is arguably
evidence that the Bernard and Scopu were not similarly situated
individuals for purposes of equal protection analysis. That issue,
however, has not been raised by defendants as a grounds for summary
judgment.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOHN A. BERNARD, and DELAVAN
HOMES, INC., an Illinois
corporation,

Plaintiffs,

v. No. 03 C 8645
VILLAGE OF HINSDALE, an
Illinois municipal corporation;
BOHDAN J. PROCZKO, individually
and as Village Manager of
Defendant VILLAGE OF HINSDALE;
CHARLES F. SCHMIDT,
individually and as Building
Commissioner of Defendant
VILLAGE OF HINSDALE; MATTHEW
FIASCONE, individually and as
Member of the Zoning Board of
Appeals of Defendant VILLAGE OF
HINSDALE; STEVEN THAYER,
individually and as Member of
the Zoning Board of Appeals of
Defendant VILLAGE OF HINSDALE;
and PAUL ANGLIN, individually
and as Chairman and Member of
the Zoning Board of Appeals of
Defendant VILLAGE OF HINSDALE,

Defendants.

MEMORANDUM OPINION AND ORDER
In their complaint, the plaintiffs, John Bernard (“Bernard”
and Delavan Homes, Inc., allege that they were denied equal
protection of the law when the Village of Hinsdale (the “village”)
denied them a permit to build a second residence on Bernard’s

property. Bernard purchased property at 640 Mills Street (the

—_


against him. Therefore, I grant defendant’s motion for summary

judgment.

ENTER ORDER:

2, 7 f
Loire t Bathe
Elaine E. Bucklo

United States District Judge

Dated: January3/_, 2006

11


Bernard a second permit and properly granted one to Scopu. Under
either scenario, however, plaintiffs have not shown any evidence
that could support a finding of intentional discrimination in this
case.’

Assuming that Scopu was incorrectly granted a second permit,
plaintiffs have brought forth no evidence (and I have found none in
the record) that suggests this decision was not made in good faith
or that defendants intentionally ignored the zoning code so that
Scopu or anyone else could receive a permit. If defendants in good
faith erroneously granted a Scopu a permit, the equal protection
Clause does not mandate that they repeat that mistake for Bernard.
See e.g. E & T Realty v. Strickland, 830 F.2d 1107, 1114 (11 Cir.
1987) ("The requirement of intentional discrimination prevents
plaintiffs from bootstrapping all misapplications of state law into
equal protection claims.”); Kendrick v. Carlson, 995 F.2d 1440,
1447 (8th Cir. 1993) (“[A] plaintiff asserting an equal protection
violation based on unequal application of a facially neutral

statute must show intentional discrimination... . Were the rule

> Although Bernard argues that the finding that his property
was a single zoning lot is incorrect, I have found nothing in the
record to support this argument. Rather, what evidence there is in
the record supports the conclusion that this issue was correctly
decided by Proczko and the ZBA and that Scopu also should have been
denied a second permit. For purposes of this motion, it is
unnecessary to resolve this issue, however, because whether the
decision to deny Bernard a second permit was correct or incorrect,
a failure to show intentional discrimination is fatal to Bernard’s
claim.


the Chairman of the ZBA, Paul Anglin, voiced their opinion that the
Scopu case was both procedurally and substantively distinguishable
from the question before the ZBA at Bernard's hearing.

The ZBA voted 3-2 to affirm Proczko’s interpretation and
issued a decision on April 29, 2002. The three affirming votes
were cast by defendants Paul Anglin (“Anglin”), Steven Thayer
(“Thayer”), and Matthew Fiascone (“Fiascone”). The ZBA’s decision
stated that “[{a]fter consideration of all of the evidence... and
after careful and thorough analysis of the applicable provisions of
the Hinsdale Zoning Code the [ZBA] finds . . . that the Village
Staff correctly interpreted and applied the provisions of the
Hinsdale Zoning Code to the applications made by the Applicant.”

Bernard did not seek administrative review of the ZBA
decision. Plaintiffs filed a complaint in this court alleging a
violation of the Equal Protection Clause of the Fourteenth

Amendment against the Village of Hinsdale, and Proczko, Schmidt,

held on January 19, 2000 concerning Scopu's request for a
variation. The record of the proceeding indicates that the issue
of whether Scopu's property was a single zoning lot was not raised
at any point and the hearing proceeded under the assumption that
the individual lot for which he sought a permit was itself a zoning
lot. The ZBA voted 7-0 to grant Scopu's request. The ZBA minutes
state that Scopu's attorney instructed the ZBA that "the requested
variation request is considerably less than the permitted reduction
and that the proposed home will comply with all applicable
standards of the Zoning Code.” As a result, "[m]lembers of the
(ZBA] concurred that the variation request met the standards for
variation.” Defendants Fiascone and Anglin voted to grant Scopu
a variation. Defendant Thayer was not a member of the ZBA at that
time.


only entitled to build one residence on the property. In drafting
the letter, Proczko consulted in detail with one of the village’s
attorneys, Barbara Adams.

Despite Proczko’s staff interpretation, Bernard applied for a
permit to build a second residence on his property. That request
was denied in a letter from Building Commissioner Charles Schmidt
(“Schmidt”) on November 29, 2001. Schmidt’s letter stated that
the basis for the denial was Proczko’s earlier ruling finding that
his property constituted a single zoning lot. After being denied
the second permit, Bernard appealed Proczko’s staff interpretation
to the Hinsdale Zoning Board of Appeals (the “ZBA”). A public
hearing took place on March 20, 2002. At the hearing, Bernard was
represented by an attorney and the village was represented by a
village attorney.

At the hearing before the ZBA, Bernard and his attorney argued
that another individual, Petar Scopu, had received permits to build
two residences on property that was substantially similar to that
of Bernard. Similar to Bernard, Scopu owned property in the
village that consisted of two lots of record with an existing house
and driveway that extended on to both lots. Scopu, however, had
applied for and received permits to build two residences on his

property.! The village attorney, Mark Burkland (“Burkland”), and
Y

' In connection with one of the two permits, Scopu had applied
for a variation that would allow him to build a residence on a lot
that was approximately 6,700 square feet. A public hearing was

3


“property”) in the village in July, 1999. The property consisted
of two lots of record, Lots 20 and 21. A single one-story house
existed on the property at the time of purchase. It was Bernard’s
intention to tear down the existing residence and build a new
residence on each of the two lots of record that comprised the
property.

On October 15, 1999, Bernard received a single building permit
for construction of a single family residence on the property.
Bernard tore down the existing residence and laid the foundation
for the new residence that was to be located exclusively on Lot 21.
Thereafter, a dispute arose between Bernard and the village as to
whether the property constituted a single zoning lot (upon which
only one residence could be built) or two separate zoning lots
(upon which a residence could be built on each of the lots of
record).

On January 28, 2000, Bernard’s attorney sent a letter to the
village outlining his position in the dispute. The letter argued
that both Lots 20 and 21 were zoning lots. Bernard’s letter was
reviewed by the Assistant Village Manger / Director of Public
Services, Bohdan Proczko (‘“Proczko”). On March 6, 2000, Proczko
issued a staff interpretation in a letter to Bernard. Proczko’s
letter explained in detail the reasons why the property constituted
a single zoning lot under the Hinsdale Zoning Code (the “zoning

code”). Because the property was a single zoning lot, Bernard was