Agenda - Planning Commission - 01/05/2017

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i€ October 25, 2016 1 Volume 10 1 Issue 20 Zoning Bulletin sued the Village. Among other things, BEM alleged that the Village violated BEM's procedural due process rights under the 14th Amend- ment to the United States Constitution when, instead of rezoning the F property and actually executing a taking, the Village threatened to sue, thus, "indirectly depriv[ing] BEM of financing and forc[ing] it to shut down." (The Due Process Clause of the 14th Amendment provides that no"State"shall "deprive any person of life,liberty, or property,without due process of law . . .") BEM also alleged that the Village violated its equal protection rights in that the Village intentionally and arbitrarily k discriminated against BEM. (The 14th Amendment's Equal Protection Clause provides that no state shall deny to any person within its juris- diction"the equal protection of the laws.") Finding there were no material issues of fact in dispute, and deciding the matter on the law alone,the district court issued summary judgment in favor of the Village on BEM's procedural due process and equal protection claims. BEM appealed. DECISION:Affirmed. The United States Court of Appeals, Seventh Circuit, concluded that BEM's procedural due process and equal protection claims both failed. In so holding, the court explained that in determining whether the Village deprived BEM of its procedural due process rights, the court would look at: (1) whether BEM was deprived of a protected liberty or property interest;and(2)if so,whether the deprivation occurred without due process.Here,BEM had asserted two interests were deprived: a lib- erty interest in the occupation of slaughter and its interest in its financ- ing agreement with the bank. The court acknowledged that those were interests protected under the due process clause of the 14th Amendment. However, the court found that the Village's actions did not actually deprive BEM of those protected interests. The court found none of the Village's actions were "more than a threat of litigation;"the Village did not actually forbid slaughter operations. Any causal link was far removed by many steps between the Village's threat of litigation and the deprivations,found the court. Moreover, the court explained that a statement by the Village that BEM's actions were in violation of the law and the Village's threat of litigation did not amount to a deprivation of BEM's protected interests without notice and an opportunity to be heard. The statement of viola- tion and threat of litigation was the"provision of notice,"said the court. The ensuing litigation would have been the opportunity to be heard. In general,reiterated the court, "a threat to sue cannot qualify as a depriva- tion of procedural due process." Still, "[elven if the threat of litigation could in itself constitute a violation of due process and were a suf- ficiently direct cause of BEM's alleged deprivations," here the court 4 ©2016 Thomson Reuters r E