Muckway v. Craft, 85-1281

• Decision Date: 23 April 1986
• Docket Number: No. 85-1281,85-1281
• Citation: 789 F.2d 517
• Parties: Norman MUCKWAY and Irene Muckway, Plaintiffs-Appellants, v. Vance CRAFT, Building Commissioner of LaPorte County, Indiana; James Blint, President; LaPorte County Plan Commission; LaPorte County Board of Zoning Appeals; Charles Ackerman; Kenneth Swanson; Charles Hendricks; Ned Kolb; Elvin Rogers; Robert Johnson; Lee H. Reinfurth; and William Campbell, Commissioners; the County of LaPorte, Indiana, and Turnpike Auto Wrecking, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 517

789 F.2d 517

Norman MUCKWAY and Irene Muckway, Plaintiffs-Appellants, v. Vance CRAFT, Building Commissioner of LaPorte County,

Indiana; James Blint, President; LaPorte County Plan

Commission; LaPorte County Board of Zoning Appeals;

Charles Ackerman; Kenneth Swanson; Charles Hendricks; Ned

Kolb; Elvin Rogers; Robert Johnson; Lee H. Reinfurth;

and William Campbell, Commissioners; the County of LaPorte,

Indiana, and Turnpike Auto Wrecking, Defendants-Appellees.

No. 85-1281.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 27, 1985.

Decided April 23, 1986.

Richard J. Troy, Sneider & Troy, Chicago, Ill., for plaintiffs-appellants.

Robert M. Edwards, Jr., Jones, Benchain, Ford, Pankow & Lewis, South Bend, Ind Martin W. Kus, Newby, Lewis, Jaminski & Jones, LaPorte, Ind., for defendants-appellees.

Before BAUER and COFFEY, Circuit Judges, and GORDON, Senior District Judge. ^*

COFFEY, Circuit Judge.

The plaintiffs, Norman and Irene Muckway, appeal the district court's dismissal, for failure to state a claim upon which relief can be granted in a federal court proceeding. Their complaint alleged that the defendants' failure to enforce a zoning ordinance denied them equal protection of the law. We affirm.

I.

According to the plaintiffs' complaint, the plaintiffs purchased land in LaPorte County, Indiana and constructed a house on the land in 1951. At the time of the plaintiffs' purchase and construction, LaPorte County did not have a comprehensive zoning or land use plan and the land surrounding the Muckway's property was used for agriculture or single-family purposes. Three years later, in 1954, the defendant Turnpike Auto Wrecking ("Turnpike") began operating a junkyard on land adjoining the Muckway's property.

In 1956, the Board of Commissioners of LaPorte County passed a zoning ordinance restricting the plaintiffs' and Turnpike's property to single-family and two-family purposes. According to the complaint, Turnpike's operation was a "nonconforming use," which, under the ordinance, was to be discontinued within five years. The ordinance's enforcement section provided:

"Section 7.4 Enforcement

(a) Any person may, by suit in the Circuit Court of the County, enjoin the violation of this ordinance.

(b) The commission or the Board may, by mandatory injunction in the Circuit Court of the County, require the removal of a structure erected in violation of this ordinance.

(c) A use that violates this ordinance shall be treated as if it were a common nuisance, and it may be abated in the same manner as such a nuisance."

The Indiana nuisance statute, Ind.Code 34-1-52-1 et seq., defines a nuisance as "Whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to free use of property, so as essentially to interfere with the comfortable enjoyment of life or property." A suit to "enjoin or abate the nuisance or to recover damages" may be brought by "any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance." Id.

Even though the ordinance required Turnpike to cease operations by 1961, Turnpike continued to operate a junkyard on its property and, in 1961 and 1963 purchased three adjoining lots to expand its operations. From 1962 to 1979 Norman Muckway lodged numerous complaints with the LaPorte Plan Commission ("Plan Commission") about Turnpike's conducting a junkyard business in a residential zone. Despite Mr. Muckway's complaints, the Plan Commission failed to institute legal action to enjoin Turnpike's use of the land as a junkyard.

The plaintiffs filed suit in the United States District Court for the Northern District of Indiana in 1980 alleging that the Plan Commission's failure to file an action against Turnpike violated the Muckways' rights to due process and equal protection. Specifically, the complaint, naming the Building Commissioner, the president of the LaPorte County Plan Commission, the commissioners of the LaPorte County Plan Commission, LaPorte County and Turnpike Auto Wrecking, alleged:

"The intentional, deliberate and willful refusal of the Defendants (other than TURNPIKE AUTO WRECKING) to enforce the Zoning Ordinances of LaPorte County has denied Plaintiffs their right to equal protection under law as secured by the Fourteenth Amendment to the Constitution of the United States in that Plaintiffs are entitled to benefits of the Zoning Ordinance of LaPorte County, i.e. protection from noxious uses in a residential zone and the right to a relatively dust-free, smoke-free, quiet environment. The conduct of said Defendants is under color of the Zoning Ordinanc e of the County of LaPorte and the laws of State of Indiana. The refusal to enforce the law, where even the attorney for the Zoning Board of Appeals found a patent violation, is a denial of the Plaintiffs' rights, privileges and immunities secured by the Constitution of the United States and is, therefore, actionable under the provision of Sec. 1983, Title 42, U.S.C.A."'

The complaint contended that because the county attorney for LaPorte County, Frank J. Lanigan, also represented Turnpike, "recourse to the Board of Commissioners of LaPorte County would be fruitless." The complaint alleged that "the Defendant, TURNPIKE AUTO WRECKING COMPANY, and other Defendants have acted in concert to deprive Plaintiffs of their rights, which actions constitute constructive fraud." The Muckways requested compensatory and punitive damages from the defendants and an order enjoining and restraining Turnpike from "operating the illegal junkyard and ordering the removal forthwith of all autos, trucks, spare parts, tires, junk and any and all vestiges of the junkyard."

On April 13, 1981 the district court abstained under the doctrine of Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), until Indiana state courts had an opportunity to decide, "whether Turnpike's nonconforming use was an 'open use' which it would have to be in order for the ordinance to require its discontinuance, whether the zoning ordinance in question was authorized and proffered under a myriad of state statutory and constitutional provisions, and whether the defendant officers were acting within their discretionary authority in failing to prosecute Turnpike." No further action was taken either in federal or state court until May 23, 1984 when the district court sent notice to the parties that the case would be dismissed unless good cause was shown. Plaintiffs filed a Motion to Permit Cause to Remain on the Court Docket and for Leave to File an Amended Complaint Instanter alleging that the interim decision of the Indiana Supreme Court in Ailes v. Decatur County Area Planning Commission, 448 N.E.2d 1057 (Ind.1983) held that local governments could not disallow nonconforming uses in existence before the passage of the zoning ordinance, such as Turnpike's. However, the plaintiffs argued that Ailes held that local governments could enjoin expansions of preexisting nonconforming uses, like those made by Turnpike in 1961 and 1963. The district court dismissed both the complaint and the amended complaint for failure to state a claim upon which relief can be granted. The district court dismissed the plaintiffs' due process claim ruling that they had failed to allege a deprivation of life, liberty, property or constitutional right. The court also held that the plaintiffs' right to seek an injunction under Sec. 7.4 of the zoning ordinance and their rights to seek an injunction or abatement of a nuisance and damages under the Indiana nuisance statute were sufficient to satisfy due process. The court dismissed the equal protection claim holding that "[t]he plaintiffs have not alleged that they were discriminated against in a vicious or irrational fashion and as the Seventh Circuit Court of Appeals stated in Jackson v. City of Joliet, 715 F.2d 1200 (7th Cir.1983), only deliberate discrimination violates equal protection." The plaintiffs appeal only the dismissal of their equal protection claim.

II.

The equal protection clause "protects against intentional invidious discrimination by the state against persons similarly situated." Ciechon v. City of Chicago, 686 F.2d 511 (7th Cir.1982). A law making no impermissible classification (a facially neutral statute) may violate the equal protection clause if it is applied in such a way to create an impermissible classification. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886).

"A plaintiff 'must demonstrate intentional or purposeful discrimination' to show an equal protection violation. ' "Discriminatory purpose," however, implies more than intent as volition or intent as awareness of consequences.' It implies that the decisionmaker singled out a particular group for disparate treatment and selected his course of action at least in part for the purpose of causing its adversive effects on the identifiable group. An administrative decision which misinterprets or distorts a valid state law can result in a denial of equal protection if there is such a design or intent to discriminate."

Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir.1982) (emphasis in original) (citations omitted).

The plaintiffs allege that they were denied their "benefits of the zoning ordinance of LaPorte County, i.e. protection from noxious uses in a residential zone and the right to a relatively dust-free, smoke-free, quiet environment," because of "the intentionally, deliberate and willful refusal of the public official Defendants to do their duty, acting in concert with the Defendant TURNPIKE AUTO WRECKING." Initially we note that this suit against a state agency challenging its refusal to take an enforcement action raises a question of standing. "The party who invokes [judicial] power must be able to show ... that he has sustained or is immediately in danger of sustaining some direct injury as the result of [a statute's] enfor...