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November 9, 1989

JAMES MINX, Plaintiff,
VILLAGE OF FLOSSMOOR, an Illinois municipal corporation, Defendant

Brian Barnett Duff, United States District Judge.

The opinion of the court was delivered by: DUFF


 The Village of Flossmoor has moved to dismiss the First Amended Complaint of James Minx, a Flossmoor property owner and resident. In that complaint, Minx charges that a Flossmoor ordinance regulating off-street parking in residential districts of Flossmoor violates his rights to substantive due process and equal protection of the laws under the Fourteenth Amendment. *fn1" In evaluating Minx's claims, this court must treat all of his allegations of fact as true, and draw all reasonable inferences in his favor. See Rutan v. Republican Party of Illinois, 868 F.2d 943, 954 (7th Cir. 1989). The court may not consider materials not contained in or attached to the complaint contrary to the suggestions of both parties. See Doe v. First Nat. Bank of Chicago, 865 F.2d 864, 873 (7th Cir. 1989).

 Accordingly, these are the facts: Flossmoor passed its ordinance on April 17, 1989, amending § 23-101.2.6 of its Zoning Code. The ordinance states:

Off-street parking facilities accessory to residential use and developed in any residential district . . . shall be used solely for the parking of passenger automobiles, personal use trucks bearing an A or B State license plate . . ., and vans owned or primarily used by occupants of the dwelling structures to which such facilities are accessory or by guests of said occupants.

 It provides further that persons may park personal use trucks with A or B licenses in an enclosed garage only, except when (1) immediately loading or unloading, (2) engaged in delivering a product, or (3) engaged in providing a service.

 Minx owns a personal use truck, although his complaint is silent about whether his truck bears an A or B license plate. In Count 1 of his First Amended Complaint, Minx contends that Flossmoor's ordinance violates his right to substantive due process by denying him the right "to park his personal use pick-up in his driveway or upon the public street in front of his residence." This allegation does not state a violation of Minx's right to due process. First, Flossmoor's prohibition of parking of certain trucks on the street in front of Minx's home does not constitute an infringement of Minx's liberty or his property rights. Minx has cited no authority (and the court has not found any) for the proposition that the right to park one's pick-up truck on a public street is one of the liberties protected by the Fourteenth Amendment. As for infringement on Minx's property rights, Minx alleges that the street is a public street. It is not Minx's street, and thus Minx cannot claim that this action of the city deprived him of his right to enjoy his property.

 The other half of Minx's claimed violation of substantive due process comes closer to stating a sufficient claim -- the City is preventing him from parking his pick-up on his own property -- but it is not close enough, at least in this circuit. In Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461 (7th Cir. 1988), the plaintiffs owned several hundred acres of land, upon which they wished to develop a 17-acre commercial office complex. The Village of Hoffman Estates rejected the plan, citing only a glut of office space in the area. The plaintiffs filed suit, charging among other things that the Village denied them substantive due process. While noting that substantive due process was an "embattled concept," the Coniston court did not rule out the possibility that a government's infringement on property rights could violate the Constitution's due process guarantees in substance. The court held, however, that the plaintiffs' case was "remote from a plausible violation of substantive due process . . . ." The court determined that Hoffman Estates had not 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, *fn2" 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, *fn3" 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, ...

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