Posted by: Patricia Salkin | December 17, 2015

MS Appeals Court Dismisses Equal-Protection and Due-Process Claims Arising From Special Exemption to Build a House

Paul Johnson’s father, Malcolm Johnson, owned a duplex on East Dinkins Street in Canton. Johnson bought the land behind Malcolm’s duplex and cleared the lot in preparation to build a home. The City initially granted him a building permit, but issued a stop-work order before the foundation was poured. The City told him to cease construction was because it learned through Johnson’s “backyard” neighbor, Alderman Charles Weems, that Johnson’s lot had no access to a city street; the only way to get from Johnson’s lot to East Dinkins Street was to use an easement across his father Malcolm’s driveway. The Board denied his request for a special exemption to build a house on what the Zoning Commission deemed a noncompliant, landlocked lot, and Johnson filed a “section 1983” suit in the Madison County Circuit Court. He alleged the City, through its Board and Zoning Commission, violated his equal-protection and due-process rights by making a racially discriminatory and arbitrary and capricious decision. Paul Johnson now appeals the circuit court’s grant of summary judgment in favor of the City of Canton, Mississippi; its Board of Aldermen;and its Zoning Commission.

Despite Johnson’s contention that the circuit court granted summary judgment in the City’s favor because the City was immune from a section 1983 claim, the court found that summary judgment was granted because Johnson failed to establish triable 1983 claims. As to Johnson’s equal protection claim, the court found that he failed to present any evidence to establish he was treated differently from any other similarly situated landowner in Canton. The City presented evidence that all homeowners Johnson listed as being treated differently built their homes at least three decades or more prior to Johnson’s building request. These homes were built before the City adopted the present version of its Unified Development Code, the code containing the ordinance mandating homes have convenient access to a public street, and were therefore not similarly situated.

As to the due process claims, the court found Johnson’s loss of use and enjoyment of real property was a recognized property interest. Here, the court found it was at least debatable that the Board’s decision to deny Johnson a building permit was rationally related to a legitimate government interest. The ordinance was designed to promote the welfare and safety of Canton residents by ensuring that fire trucks and other emergency and service vehicles could access the City’s homes and buildings. Accordingly, Johnson’s due-process claim also failed and was likewise found to be properly dismissed on summary judgment.

Johnson v City of Canton, 2015 WL 7444388 (MS App 11/24/2015)

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