Roughly 90 miles west of Milwaukee lies the small town of Black Earth, Wisconsin. For years, a butcher shop operated on the plot located at 1345 Mills Street. While the property is not zoned for slaughtering livestock, the activity had long been permitted as a legal nonconforming use. In 2001, Black Earth Meats (BEM) purchased the property. Sometime after 2009, the volume and frequency of slaughter increased. By 2011, neighbors were complaining about' increased traffic, delivery trucks blocking the road, livestock noise, foul odors, improper storage of animal parts, and the presence of offal, blood, and animal waste in the streets. Steers escaped from the facility on three occasions; each time, a posse had to hunt the fugitive bovine through the streets of Black Earth and, ultimately, shoot it dead.'
In 2013, the Village trustees decided to do something about the renegade slaughterhouse. It increased enforcement of Village regulations, ordered BEM to propose an acceptable plan for relocating its slaughter activities, held several public meetings, and in July 2014, threatened litigation. As a result of the Village’s threat of litigation, the U.S. Department of Agriculture (USDA) refused to guarantee a loan to BEM from the Bank of New Glarus. Shortly afterwards, BEM lost its financing, closed, and then sued the Village and the members of its Board. The district court granted summary judgment to the defendants. BEM appeals, and we affirm.
I
In 2001, Black Earth Meats purchased the property located at 1345 Mills Street, in the Village of Black Earth, Wisconsin. For the previous 60 years, the plot had been used as a slaughterhouse and retail butcher shop. While the land was zoned as “B-l General Commercial” — a designation that did not allow the operation of a slaughterhouse — BEM’s slaughtering operation constituted a legal nonconforming use and thus was permitted under the zoning law in effect at the time. BEM’s current owner, Kemper Durand, Jr., acquired the company and property in 2008.
About a year after Durand acquired the property, the slaughter operations increased in both volume and frequency. This led to a crescendo in complaints from the neighbors. In response to these com
Neighbors continued in 2012 to lodge the same kinds of complaints about the effects of BEM’s slaughterhouse operations. And their complaints were heard: the Village President, Patrick Troge, wrote a letter to BEM warning that if the problems continued, the Village would take action, potentially including a nuisance abatement action or fines.
On May 2, 2012, a Red Angus steer escaped from BEM and was pursued by 12 BEM employees, one of them armed with a rifle, through the village. Three Dane County deputies eventually arrived on scene and cornered the animal. The showdown ended in a hail of gunfire; after the deputies pumped six shotgun slugs, seven rounds from an M16, and three .22 rifle rounds into the steer, it fell dead in the streets of Black Earth. This was not the first renegade beast cut down in the Village: steers had escaped from BEM on two previous occasions since 2009. Each fugitive had occasioned a similar response, and met a similar end.
In the meantime, Durand was looking for new financing for BEM’s operations. In 2013, after a search lasting more than a year, Durand approached the Bank of New Glarus. New Glarus agreed to loan BEM approximately $1.3 million. But the loan came with strings: BEM was required to raise $525,000 on its own, and to obtain a loan guarantee from the USDA’s Office of Rural Development. The USDA guarantee would cover 80 percent of the loan amount. While he initially opposed the loan guarantee condition, Durand eventually acquiesced; he finalized the loan agreement in August 2013. The USDA provided New Glarus with a “conditional commitment,” which would convert into the required loan guarantee upon the meeting of certain prerequisites. One of those prerequisites was a certification that there were “[n]o ... suits ... pending or threatened that would adversely affect the collateral when the security instruments are filed.” Similarly, BEM was required to certify that “there are no actions, suits or proceedings pending or, to the knowledge of the [BJorrower/guarantors, threatened against the Borrower/guarantors that may result in any material adverse change in the business operations ... of the Borrower/guarantors.”
The complaints about BEM continued unabated throughout 2013. (Over the course of the year, BEM was the cause of 40 requests for police service.) On July 10, 2013, the Village trustees met with the Village’s attorney to discuss BEM’s ordinance violations and potential zoning issues. At first, the trustees considered drafting or amending ordinances specifically addressed at BEM. They ultimately rejected this course of action out of concern about the propriety of addressing ordinances toward one specific business. In
As a result of the increased enforcement, BEM received nine citations between October 1, 2013, and January 3, 2014. The citations had no effect on BEM’s behavior, however, and the complaints continued. On December 10, 2013, the Village Board held a public meeting “regarding nuisance and zoning violations associated with Black Earth Meats.” The agenda included time for remarks by law enforcement, the Village’s building inspector, a BEM representative, and the public. The agenda also advised that the trustees would discuss and vote on a “strategy to be adopted by the [Village] with respect to litigation in which it is or likely to become involved regarding [BEM].” Notice of the meeting was published. Durand spoke on behalf of BEM. At the conclusion of the-meeting, the trustees passed a motion giving BEM 120 days to present an acceptable plan for relocating its slaughter operation. If BEM failed to meet that deadline, it said, the Village would “take legal action to remove the slaughter operation.”
Troge sent the promised notice to BEM the following day. His letter noted that BEM’s slaughter operation had “increased to such a degree that it is now a much more intensive commercial slaughtering operation” and had bec.ome a “nuisance.” It directed BEM to relocate within a reasonable period and advised that if BEM failed to present an acceptable plan for doing so within 120 days, the Village “in-tendfed] to commence legal action to abate the nuisance and secure a court order enjoining slaughter operations.”
On December 23, 2013, BEM responded to Troge’s letter with a notice of claim. The notice alleged that.“as a direct result of the Village’s Complaints, Citations, Resolutions and Statements,” the USDA had refused to guarantee a loan from the Bank of New Glarus to BEM. It noted that without the guarantee, it might not be able to obtain the loan from New Glarus, which would in turn affect its financing. The Village denied the claim on January 7, 2014.
The Village then extended BEM’s deadline for presenting its relocation plan. The plan was supposed to be presented at a Board meeting held on June 26, 2014, at the conclusion of the extended time period. Instead of the requested plan, however, BEM presented a consultant’s report detailing four options for mitigating the problems its slaughtering created. Only one of those options involved relocating the operation to a new facility. The trustees took no action at the meeting.
The Board held another meeting one week later. Appearing as BEM’s representative, Durand informed the trustees of the financing problems BEM had experienced because of the Board’s December 10, 2013 motion. He explained that BEM needed the New Glarus loan to continue operating, and that if the Board did not pass another motion authorizing slaughter at the location, the loan would not be forthcoming. He asked the Board to pass a motion he had prepared. The proposed motion declared that slaughter was “permitted at the [BEM] facility as a legal, nonconforming use”; that it “shall be permitted to continue”; and that BEM’s “normal operation ... is not a public nuisance.” Troge advised Durand that the Board could not vote on Durand’s motion until the Village’s lawyer reviewed it. The plaintiffs, Durand and BEM, filed this lawsuit that day.
A week later, the Village held another meeting to discuss its “strategy ... with respect to litigation” regarding BEM. Du-rand was present and was offered the
BEM’s lawsuit continued. At the end of discovery, the parties filed cross-motions for summary judgment. The district court granted summary judgment to the defendants on BEM’s procedural due process and equal protection claims, dismissed BEM’s takings claims as unripe, and remanded BEM’s state-law claims to the Circuit Court for Dane County, Wisconsin. BEM timely appealed the district court’s dismissal of its procedural due process and equal protection claims, to which we now turn.
II
We review the district court’s rulings on summary judgment de novo. Advance Cable Co., LLC v. Cincinnati Ins. Co.,
A
Although our appellate jurisdiction is secure, we have noticed a question about the district court’s jurisdiction that we must address. Wisconsin Central, Ltd. v. Shannon,
1
Under Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City,
We have construed Williamson broadly, holding that “[a] property owner may not avoid Williamson by applying the label ‘[procedural] due process’ to the claim.” Forseth v. Vill. of Sussex,
There is some question whether BEM’s remaining claims are properly understood as takings claims. BEM’s briefs can be read to suggest as much. With regard to the New Glarus financing and its liberty interest in the occupation of slaughter, BEM’s claim is essentially that the Board achieved ends it could have obtained through zoning with the threat of litigation. Instead of rezoning the property and actually executing a taking, the Village threatened to sue. This was an action that, because of BEM’s financing needs, indirectly deprived BEM of financing and forced it to shut down. If the Village could have achieved the same result through an actual taking, the most logical response might be to see if a state court would construe it retroactively as a taking, provide or decline to provide compensation, and thereby provide all the process that was due. If BEM still had complaints when that process was Over, it could then sue under 42 U.S.C. § 1988 and its claims would be ripe.
But BEM’s financing agreement with New Glarus and its liberty interest in slaughter both represent interests independent of the property itself. We think that they may be properly construed as' (non-takings) procedural due process claims, and therefore as ripe. We thus proceed to the merits.
2
In determining whether a deprivation of procedural due process has taken place, we ask two questions: first, whether the plaintiff has been deprived of a protected liberty or property interest; second, if so, whether the deprivation occurred without due process. Pro’s Sports Bar & Grill, Inc. v. City of Country Club Hills,
BEM’s theory suffers from several fatal flaws. First, none of these actions was more than a threat of litigation — that is, notice that the Village intended to seek enforcement of its rights. Contrary to BEM’s contention, nothing the Village did actually forbade slaughter, and in not passing Durand’s motion, the Board merely declined to adopt his legal position. We are hard-pressed to imagine when notice itself can be considered a deprivation of due process, and this is certainly not such a case.
In Hussein v. City of Perrysburg, the Sixth Circuit held that where “a state official states his view that a citizen’s actions are in violation of the law and threatens litigation, this is not a deprivation of the citizen’s interest without notice and an opportunity to be heard.”
We find this logic sound. In general, a threat to sue cannot qualify as a deprivation of procedural due process. If the actual abatement of a nuisance is not a deprivation of due process, mere notice that a governmental actor will pursue a nuisance action in an adversary proceeding cannot constitute a due process violation. See Pierce v. Vill. of Divernon, Ill.,
To state a claim against a municipality under section 1983, “a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.” Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown,
BEM argues that Reed v. Village of Shorewood,
BEM points us to Baer v. City of Wauwatosa,
Finally, Backpage.com, LLC v. Dart,
Even if the threat of litigation could in itself constitute a violation of due process and were a sufficiently direct cause of BEM’s alleged deprivations, there is no reason to think that the process accorded to BEM was inadequate. Procedural due process generally requires only “notice and an opportunity to be heard.” Dusenbery v. United States,
BEM’s attempt to answer that question is largely nonsensical. The only additional process it identifies seems to be more specific notice. (It treats the December 10 and July 10 motions as notice; that concession disposes of any claims that these motions constituted an official deprivation.) It contends that the “language of the Motions do [sic] not inform” BEM “that they have an opportunity to object nor does it include any information relating to specifies of the plan that must be presented in order to avoid such ‘legal action.’ ” It also contends that there was “no clear indication of what ‘legal action’ [would] be taken.” But the record leaves no doubt that BEM knew it had the opportunity to object: it did so at several meetings. It presented alternate motions. And the Village stated clearly what legal action it intended to take: an action for nuisance abatement. Even if
B
BEM’s last hurrah is a “class of one” equal protection claim. In order to proceed, it must show that it was “intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech,
The law on that point is up in the air, see Del Marcelle v. Brown Cnty. Corp.,
BEM’s problem is that there is no evidence of animus in this case. While the Village trustees made no secret of their intent to force BEM to move its slaughterhouse operations (and were happy once it shut down), there is no evidence that they were motivated by malice or animosity. They were responding to a drumbeat of complaints from BEM’s neighbors about increased traffic, delivery trucks blocking the road, livestock noise, foul odors, improper storage of animal parts, and offal runoff, blood, and animal waste in the streets. They responded more forcefully from 2011 onward to BEM than they had in the past because BEM’s new owner significantly increased slaughter activities. In directing deputies to “feel free to write a citation” if they “s[aw] a violation,” the trustees were at most building a record in anticipation of a nuisance abatement suit.
As a result, although the Village pursued a campaign against continued slaughter activities by BEM at its current location, it had a rational basis for doing so. See Geinosky v. City of Chicago,
Lastly, BEM has not suggested ‘ a sufficiently similar comparator. It needed to find someone (or something) that shared with it all the principal, pertinent characteristics. Swanson,
Ill
The district court correctly granted summary judgment to the defendants on BEM’s procedural due process and its equal protection claims. We therefore Af-piRM its judgment.