deprived the plaintiffs of their land; rather, it had only limited the plaintiffs' use of it. The court distinguished limited incursions such as that of Hoffman Estates from outright deprivations of property rights, holding that the former did not implicate the Constitution's guarantees of substantive due process. See id. at 465-66.
If the plaintiffs in Coniston did not state a claim of deprivation of their right to substantive due process, then Minx surely has not stated such a claim here. He does not allege that Flossmoor took his driveway, or that it occupies it. Rather, Flossmoor only prevents him from parking his pick-up -- assuming he has an A or B license plate -- on his driveway while he is not engaged in loading or unloading it. He can put his driveway to any other use,
ranging from playing basketball or barbecuing on it to parking a passenger automobile or van.
The court thus dismisses Count 1 for failure to state a claim upon which this court can grant relief. In Count 2, Minx asserts that Flossmoor has denied him equal protection of the laws. Both parties argue vehemently over the meaning of Muckway v. Craft, 789 F.2d 517 (7th Cir. 1986), each citing it for why or why not Minx has a claim. The court wonders why the parties bothered. In Muckway, Norman and Irene Muckway sued various officials of LaPorte County, Indiana, for the county's allegedly arbitrary and invidious refusal to enforce a county zoning ordinance. The Seventh Circuit noted that because of constitutional standing requirements, plaintiffs in such cases have to overcome many obstacles in order to bring, let alone state, claims of invidious discrimination in violation of the Fourteenth Amendment. See id. at 520-23. Much of what underlies the Muckway opinion are the unique problems raised in cases involving municipal decisions not to enforce laws. By contrast, according to Minx's complaint,
this case centers on the irrationality of a statute which Flossmoor is enforcing, one which distinguishes between residents who own personal-use pick-up trucks and residents who own other types of personal-use vehicles.
Neither party views Minx's complaint in this light. Flossmoor puts forth no arguments why Minx has not stated a claim in Count 2, beyond dicta from various cases which eschews federal court supervision of municipal zoning regulations. While challenges to municipal zoning laws are rarely successful, even under the Equal Protection Clause, a low probability of success is not the same as an outright failure to state a claim upon which this court can grant relief -- the sole basis for dismissing a claim under Rule 12(b)(6). As the Supreme Court noted in Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439-40, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985) (citations omitted), "The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." Minx's complaint is that Flossmoor does not treat similarly situated persons alike. While he will have many hurdles to overcome in challenging Flossmoor's ordinance -- as Cleburne notes, see id. at 440, the Equal Protection Clause gives the State "wide latitude" in social or economic legislation -- Flossmoor has offered no arguments why Minx cannot clear these hurdles from what Minx has said in his complaint. The court thus sees no reason to dismiss Count 2 under Rule 12(b)(6).
For the reasons stated above, the court dismisses Count 1 of Minx's First Amended Complaint under Rule 12(b)(6). The court denies Flossmoor's motion to dismiss Count 2.
DATE: November 9, 1989