Posted by: Patricia Salkin | July 26, 2016

MS Appeals Court Holds Denial of Special Exemption to Permit Construction of Home on Noncompliant Lot Did Not Violate Equal Protection or Substantive Due Process

Paul Johnson’s father, Malcolm, owned a duplex on East Dinkins Street in Canton. Johnson bought the land behind Malcolm’s duplex, and in November 2005, he cleared the lot in preparation to build a home. The City initially granted him a building permit. But soon after, it issued a stop-work order before the foundation was poured. The reason 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. Johnson brought suit under § 1983 against city, based on a claim that city’s denial, through Zoning Commission and Board of Aldermen, violated equal protection and due process. The Circuit Court entered summary judgment in favor of the city.

On appeal, Johnson did not contest that Board and Zoning Commission members, in their individual capacities, were immune, but insisted that his claims were against the City of Canton. This was a nonissue, since the circuit court’s reason for granting summary judgment in the City’s favor was not that the City was immune from a section 1983 claim. As to his Equal Protection claim, Johnson presented no evidence to establish he was treated differently from any other similarly situated landowner in Canton apart from the mere alleges nine white property owners had “houses behind houses.” Accordingly, the court affirmed the circuit court’s grant of summary judgment on Johnson’s equal-protection claim.

Johnson’s due process claim was that by deeming his lot noncompliant, the City deprived him of the use and enjoyment of his property. Here, 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. Thus, the Board’s decision was rationally related to a conceivable legitimate objective. The court therefore affirmed the dismissal of Johnson’s due process claim.

Johnson v City of Canton, 194 SO 3d 161 (MA App. 6/30/2016)

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