                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 06-1621

JOHN G. R EGET,
                                              Plaintiff-Appellant,
                               v.

C ITY OF L A C ROSSE, JOHN M EDINGER,
L ARRY K IRCH, et al.,
                                           Defendants-Appellees.


           Appeal from the United States District Court
               for the Western District of Wisconsin.
           No. 05-C-238—Barbara B. Crabb, Chief Judge.



    A RGUED JANUARY 12, 2009—D ECIDED F EBRUARY 8, 2010




   Before E ASTERBROOK, Chief Judge, and W ILLIAMS and
S YKES, Circuit Judges.
  S YKES, Circuit Judge. The City of La Crosse and John
Reget have had a long, acrimonious relationship
stemming from Reget’s operation of a business that
doubles as a body shop and an automobile-restoration
company. The City’s junk-dealer ordinance required
Reget to comply with certain building and safety-code
2                                               No. 06-1621

provisions and to fence his outdoor auto storage from
the view of his surrounding residential neighbors. Reget
claims the City singled him out for enforcement of this
ordinance and also that it discriminated against him in
connection with a proposed rezoning plan, all in viola-
tion of his rights under the Equal Protection Clause of
the Fourteenth Amendment. He filed this lawsuit
seeking damages and injunctive relief, but the district
court granted the defendants’ motion for summary judg-
ment. Because Reget has not shown that the City has
treated him differently than other similarly situated
businesses, we affirm.


                      I. Background
   Reget has operated John’s Auto Body in the City of
La Crosse, Wisconsin, since 1975. The conflict between
Reget and the City dates back to 1980, when the City
condemned his old building, compensated him for a
move to his present location, and gave him an addi-
tional $14,000 to remodel his current building. On
receipt of this compensation, Reget signed a release
waiving all claims against the City arising from the con-
demnation and relocation. Since then, however, Reget
is convinced the City is trying to drive him out of business.
In the district court, Reget made numerous claims of
mistreatment at the hands of city officials, but on appeal
he limits his argument to three: He claims that the
City selectively enforced its junk-dealer ordinance
against him, targeted him for rezoning in a discrim-
inatory fashion, and selectively enforced its noise reg-
ulations.
No. 06-1621                                                 3

   The dispute between Reget and the City flared up in the
early 1990s, when the City cited Reget several times for
violating the junk-dealer ordinance. This ordinance
imposes a variety of obligations on junk dealers. It re-
quires, among other things, that junk dealers obtain a
license; it also imposes certain building and safety re-
quirements on junk dealers, and limits when and where
they can operate. See L A C ROSSE, W IS., C ODE § 20.12. Most
important for purposes of this litigation, the ordinance
requires that any junk dealer who stores two or more
junked vehicles outdoors for more than 30 days build
an opaque fence shielding the vehicles from public
view.1 Id. § 20.12(F). Reget was cited three times between
1991 and 1994 for violating the junk-dealer ordinance.
The parties have not told us which provisions of the
ordinance Reget allegedly violated, but it is undisputed
that all three citations were eventually dismissed.
  The next dispute between the parties arose in 1995-1996
when the City attempted to rezone Reget’s property
from “heavy industrial” to “commercial,” a move that
would have forced Reget to relocate his business yet


1
   It is unclear exactly when this fence requirement was added
to the ordinance. Reget claims it was passed in 1991 in a
resolution he says city officials nicknamed the “Reget Resolu-
tion.” The City disagrees but does not specify when the fence
requirement was adopted. The district court thought the
ordinance was passed in 1993, but we cannot locate any
record evidence supporting that statement. Whether it was
adopted in 1991 or 1993, it is undisputed that Reget never
complied with the ordinance’s fence requirement.
4                                               No. 06-1621

again. The proposed reclassification of Reget’s property
was part of a comprehensive rezoning of the City’s north
side, and in connection with this project, more than
100 properties were rezoned. Reget contends, however,
that his property was the only heavy industrial property
targeted for rezoning. He complained, and the City eventu-
ally agreed to abandon its attempt to rezone Reget’s
property in exchange for his agreement to abide by the
junk-dealer ordinance. More specifically, in a covenant
signed in 1997, Reget promised to install a fence on
several sides of his business to hide his outdoor auto
storage from the view of nearby residences. He also
agreed to abide by the City’s noise restrictions by limiting
his nighttime operations. The City, in turn, agreed
that Reget’s property would remain zoned for heavy
industrial use. In addition, to allay Reget’s persistent
complaints that the City was selectively enforcing its
ordinances, the City agreed to enforce any ordinance
violations committed by Reget’s neighbors.
  Reget never installed the fence. He says he was
excused from doing so because the City failed to live up
to its agreement to enforce ordinance violations—in
particular, noise violations—that he claimed his
neighbors were committing. In 2003 Reget received a
fourth citation, this time for violating a building-code
provision of the junk-dealer ordinance. Again, the
parties compromised. The City agreed to install a fence
on Reget’s property itself, and Reget agreed to repay
the City for the cost of the fence over a period of fifteen
years. Based on this agreement, the 2003 citation was
dismissed.
No. 06-1621                                               5

  In 2006 Reget filed this lawsuit alleging, among other
claims, that the City and various city officials violated
his equal-protection rights by selectively enforcing its
ordinances against him and by targeting him for
rezoning. The defendants moved for summary judg-
ment. The district court granted this motion, holding
that Reget had failed to submit evidence showing that
similarly situated junk dealers received more favorable
treatment from the City. This appeal followed.


                      II. Discussion
  We note first that although most of the events at issue
in this dispute are quite dated, the defendants did not
assert a statute-of-limitations defense. This surprises us.
Under the applicable statute of limitations supplied by
Wisconsin law, Reget had six years to bring a claim. See
W IS. S TAT. § 893.53 (governing actions to recover for
violations of injuries to noncontractual rights); Gray v.
Lacke, 885 F.2d 399, 409 (7th Cir. 1989) (applying section
893.53 to § 1983 equal-protection claims filed in Wiscon-
sin). Reget filed this lawsuit in 2006, but nearly all of
the events in this case occurred in the early and mid-
1990s. The only event falling within the statute of limita-
tions was the 2003 citation, and this citation was dis-
missed when the City and Reget agreed that the City
would install a fence around Reget’s property and assess
him for the cost in installments spread over fifteen years.
However, a statute-of-limitations defense is waived if it
is not raised, see Perry v. Sullivan, 207 F.3d 379, 382 (7th
Cir. 2000), so we will proceed to the merits.
6                                                No. 06-1621

   The district court granted the defendants’ motion for
summary judgment, holding that Reget failed to estab-
lish that a similarly situated business was treated more
favorably. Our review is de novo, see Woodruff v. Mason,
542 F.3d 545, 550 (7th Cir. 2008), and summary judgment
is appropriate if “the pleadings, the discovery and dis-
closure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law,”
F ED. R. C IV . P. 56(c). We construe all facts in the light
most favorable to Reget and draw all reasonable infer-
ences in his favor. See McKinney v. Cadleway Props., Inc.,
548 F.3d 496, 499-500 (7th Cir. 2008). However, when
the nonmoving party bears the burden of proof, as
Reget does here, he must demonstrate the existence of a
genuine issue of material fact to defeat summary judg-
ment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-26 (1986).
   The Equal Protection Clause of the Fourteenth Amend-
ment prohibits state action that discriminates on the
basis of membership in a protected class or irrationally
targets an individual for discriminatory treatment as a so-
called “class of one.” See Engquist v. Oregon Dep’t of Agric.,
128 S. Ct. 2146, 2153 (2008); Vill. of Willowbrook v. Olech,
528 U.S. 562, 564 (2000). The class-of-one theory of equal
protection “presupposes that like individuals should
be treated alike, and that to treat them differently is to
classify them in a way that must survive at least ra-
tionality review.” Engquist, 128 S. Ct. at 2155. A plaintiff
alleging a class-of-one equal-protection claim must estab-
lish that (1) a state actor has intentionally treated him
differently than others similarly situated, and (2) there
No. 06-1621                                                   7

is no rational basis for the difference in treatment. Olech,
528 U.S. at 564; Srail v. Vill. of Lisle, 588 F.3d 940, 943 (7th
Cir. 2009).
   Some of our cases have also required proof that the
state action was motivated by illegitimate animus
against the plaintiff, while others have treated illegiti-
mate animus as an alternative basis for class-of-one
liability. See Srail, 588 F.3d at 944 (comparing our “diver-
gent class-of-one precedent”); Hanes v. Zurick, 578 F.3d
491, 494 (7th Cir. 2009); United States v. Moore, 543 F.3d
891, 898 (7th Cir. 2008) (collecting cases). We need not
reconcile the conflict here. Reget’s class-of-one claim
fails at the first step in the analysis. To be similarly
situated for purposes of a class-of-one equal-protection
claim, the persons alleged to have been treated more
favorably must be identical or directly comparable to the
plaintiff in all material respects. Srail, 588 F.3d at 945;
Racine Charter One, Inc. v. Racine Unified Sch. Dist., 424
F.3d 677, 680 (7th Cir. 2005). While this is not a “precise
formula,” it is nonetheless “clear that similarly situated
individuals must be very similar indeed.” McDonald v.
Vill. of Winnetka, 371 F.3d 992, 1002 (7th Cir. 2004). We
agree with the district court that Reget has failed to
show that a similarly situated auto-salvage business
was treated more favorably.
  We begin with Reget’s claim that the City singled him
out for enforcement of the junk-dealer ordinance. That
ordinance requires, among other things, that “[t]he prem-
ises of a junk dealer” be enclosed by a “proper fence.” L A
C ROSSE, W IS., C ODE § 20.12(F). The ordinance applies to
8                                             No. 06-1621

a junk dealer who stores two or more junked auto-
mobiles outside of any building for more than 30 days. Id.
§ 7.01(V) (Regulations for Storage of Junked Automobiles
and Parts). Reget maintains that the City intentionally
targeted him for enforcement of this ordinance by:
(1) citing him three times between 1991 and 1994 for
violating the ordinance (the specific nature of these
violations is unclear); and (2) “requiring” him to fence
his property in exchange for settlement of the zoning
dispute. Reget has failed, however, to establish that he
was treated differently than a similarly situated junk
dealer.
  In his deposition testimony, Reget identified several
other auto-repair shops in La Crosse that he claimed
were not cited for violating the junk-dealer ordinance.
But he did not establish that these businesses had
actually violated the ordinance. That is, he did not
produce evidence that any of the comparator businesses
engaged in the outdoor storage of two or more junked
vehicles for more than 30 days and failed to comply
with the fence requirement in the junk-storage ordinance.
Nor did he produce evidence that the comparator junk
dealers violated the ordinance in some other way yet
were not cited. Moreover, the City’s three citations
against Reget were for unspecified violations of the
ordinance and were ultimately dismissed; this
makes comparison with other junk dealers in the City
impossible. Finally, Reget voluntarily agreed to build
a fence around his property as a part of the 1997 settle-
ment of his rezoning dispute with the City. We cannot
see how a voluntary agreement can support a claim of
class-of-one equal discrimination.
No. 06-1621                                            9

  Reget also contends that the City singled him out for
rezoning, but the record does not support this conten-
tion. The City rezoned more than 100 properties as
part of a rezoning project encompassing the City’s north
side. Reget argues that none of his immediate neighbors
were targeted for rezoning and that his was the only
property in the rezoning initiative that was slated to
be reclassified from a heavy industrial to a commercial
use. We cannot see how either point matters. Even if
he was the only property owner in his immediate neigh-
borhood affected by the City’s rezoning effort, Reget can
hardly claim he was targeted for discriminatory treat-
ment when 100 properties were ultimately rezoned.
Regardless, he has not identified a similarly situated
comparison property—in his immediate neighborhood
or otherwise—that was treated more favorably. Reget
simply asserts, without evidence, that his was the
only property that city planners wanted to move
from a heavy industrial to a commercial use. There is
no evidence in the record regarding the prior zoning
classifications of the 100 properties that were slated
for rezoning.
  Moreover, and significantly, Reget’s property was
never rezoned. The City abandoned its effort to
reclassify Reget’s property in exchange for his agreement
to build a fence and abide by the City’s noise ordinance.
Reget does not identify—and we have not found—any
cases suggesting that a class-of-one equal-protection
claim premised on an allegation of discriminatory
zoning can be maintained when the plaintiff’s property
is never in fact rezoned. Cf. Barstad v. Murray County,
10                                             No. 06-1621

420 F.3d 880, 884 (8th Cir. 2005) (finding no equal-protec-
tion violation when county reversed a recent rezoning).
  Finally, Reget argues that the City discriminated against
him by “requiring” him to comply with the noise ordi-
nance while refusing to enforce the ordinance against
his neighbors. Again, the basis of this claim is the 1997
covenant in which Reget agreed to reduce his nighttime
operations in order to comply with the City’s noise ordi-
nance and the City, in turn, agreed to enforce ordinance
violations committed by Reget’s neighbors. Reget says
he complained to the City about numerous noise viola-
tions from trucks idling at a neighboring motel and that
the City refused to cite the motel. This argument has
things backward. To establish a claim of selective en-
forcement, Reget had to show that he was cited under
the ordinance and a similarly situated ordinance violator
was not. But he has no such evidence. The 1997 covenant
does not establish that the City selectively enforced
the ordinance against him. Reget had an obligation to
comply with the City’s noise ordinance regardless of the
promises he made in that settlement; the 1997 agreement
imposed no new obligations on either party and seems
designed simply to encourage Reget’s compliance with
the City’s ordinances.
  Accordingly, the district court properly entered sum-
mary judgment for the defendants, and the judgment
dismissing Reget’s claims is A FFIRMED.



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