The opinion of the court was delivered by: Reagan, District Judge
I. Introduction and Procedural Overview
In July, 2006, Plaintiffs Joseph E. Osborn, Donald P. Osborn and Osborn Homes, Inc., (collectively, "the Osborns") filed a complaint for damages against City of Collinsville ("the City") and Paul W. Mann ("Mann"), the Community Development Director of the City of Collinsville. The Osborns seek monetary damages for alleged violations of their constitutional rights, pursuant to 42 U.S.C. § 1983. The Osborns allege that the City wrongfully failed or refused to act upon or approve the Osborns' proposed subdivision plat for Phase I of Parkside Commons. The Osborns also allege that Mann approved and actively participated in the violations of the Osborns' rights.
On August 22, 2006, before the City was served with process, Mann removed this action from the Circuit Court of the Third Judicial Circuit, Madison County, Illinois, to the United States District Court for the Southern District of Illinois. Before the Court are Mann's Motion to Dismiss (Doc. 4) and the City's Motion to Dismiss (Doc. 12).*fn1
According to the Osborns' complaint, in October, 2002, the City adopted Resolution No. 4475, giving preliminary plat approval for the portion of the Osborns' proposed subdivision known as Phase I of Parkside Commons. Plaintiff's Complaint, Exhibit A. The Osborns allege that they submitted a proposed subdivision plat of Phase I for final approval in January, 2003. They further allege that, on or about May 7, 2004, the City filed suit against them in state court, seeking, among other things, removal of improvements made by the Osborns on Parkside Commons under the improvement plans previously approved by the City. The Osborns state that, on July 14, 2004, they filed suit against the City seeking approval of the proposed subdivision plat of Phase I. According to the Osborns, the state court entered an order in their suit against the City requiring the Madison County Recorder to record the proposed subdivision plat of Phase I without the City's approval and declared the plat, as so recorded, to have the same force and effect is if it had been approved by the City. The Osborns assert that the plat of Phase I was recorded on March 16, 2005. They state that certain lots of Phase I are situated within the R-1 zoning district of the City (single-family dwellings), and certain lots are situated within the R-3 zoning district (multi-family dwellings). The Osborns allege that the City denied all of their applications to construct dwelling units. The Osborns state that they appealed the City's denial to the City's Board of Zoning Appeals, which dismissed the appeal. The Osborns assert that they then appealed the dismissal of the zoning appeal to the City Council. They state that the City did not act on the appeal and that they filed a mandamus action in state court for approval of the building permits. Ultimately, the permits were issued.
The Osborns allege that these actions by Mann and the City violated their due process and equal protection rights under the Fifth and Fourteen Amendments of the United States Constitution.
II. Applicable Legal Standards
Federal notice pleading requires a plaintiff to set forth in his complaint "a short and plain statement . . . that will provide the defendant fair notice of the claim." Scott v. City of Chicago, 195 F.3d 950, 951 (7th Cir. 1999) (citing Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993)). In deciding whether to grant a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court accepts as true all well-pled allegations and resolves in favor of the plaintiff all reasonable inferences. Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000).
Dismissal under Rule 12(b)(6) is proper only if the plaintiff can prove no set of facts that would entitle him to relief. Id. (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Accord Gould v. Artisoft, Inc., 1 F.3d 544, 548 (7th Cir. 1993). As the Seventh Circuit has remarked, motions to dismiss for failure to state a claim "must receive careful scrutiny." Sidney S. Arst Co. v. Pipefitters Welfare Educ. Fund, 25 F.3d 417, 420 (7th Cir. 1994).
In the case at bar, Mann moves to dismiss the Osborns' complaint on the grounds that the Osborns have failed to show a constitutional deprivation by Mann, have no protectable property right to the issuance of building permits or plat approval, have adequate state law remedies and received due process in spite of the delay in development.
Section 1983 creates a federal cause of action for the deprivation, under color of state law, of a citizen's rights, privileges, or immunities secured by the United States Constitution or federal laws. 42 U.S.C. § 1983. Section 1983 is not, in itself, a source of substantive rights, but merely provides "a method for vindicating federal rights elsewhere conferred." Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997); Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).
A. Whether the Osborns Properly Allege a § 1983 Violation
A substantive due process claim does not require proof that all use of the property has been denied, see, e. g., City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 701, 119 S.Ct. 1624, 1634 (1999), but rather that the interference with property rights was irrational or arbitrary. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 2892 (1976). "[A] substantive due process claim based on a state-created property interest is cognizable where a plaintiff claims either a violation of some other ...