        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2014-CA-00761-COA

PAUL JOHNSON                                                            APPELLANT

v.

CITY OF CANTON, MISSISSIPPI; BOARD OF                                   APPELLEES
ALDERMEN FOR THE CITY OF CANTON;
AND THE ZONING COMMISSION FOR THE
CITY OF CANTON, MISSISSIPPI

DATE OF JUDGMENT:                        05/09/2014
TRIAL JUDGE:                             HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED:               MADISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  KIM T. CHAZE
ATTORNEY FOR APPELLEES:                  KIMBERLY CELESTE BANKS
NATURE OF THE CASE:                      CIVIL - OTHER
TRIAL COURT DISPOSITION:                 GRANTED SUMMARY JUDGMENT IN
                                         FAVOR OF APPELLEES
DISPOSITION:                             AFFIRMED - 11/24/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      MAXWELL, J., FOR THE COURT:

¶1.   Paul Johnson appeals the grant of summary judgment in favor of the City of Canton,

Mississippi; its Board of Aldermen; and its Zoning Commission. Disappointed that the

Board denied his request for a special exemption to build a house on what the Zoning

Commission deemed a noncompliant, landlocked lot, 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. But to survive summary judgment,
Johnson had to produce more than mere allegations. He had to put forth sufficient evidence

to establish triable equal-protection and due-process claims.

¶2.    Like the circuit court, we find Johnson produced zero evidence that he was treated

differently than similarly situated property owners—a necessary element of an equal-

protection claim. No other property owners applied for, let alone were granted based on their

race, the same special exemption Johnson was denied.

¶3.    We also find Johnson failed to establish a due-process claim. The Board’s zoning-

related decision was “quasi-legislative.” This means, as a matter of federal constitutional

law, there can be no substantive-due-process violation if it was “at least debatable” that the

City had a conceivable rational basis for its decision. Conceivably, the Board denied Johnson

a building permit because his proposed home would not be accessible by fire trucks and other

services. Because it is at least debatable this decision was rationally related to a legitimate

government interest—namely, resident safety and welfare—the City was entitled to a

judgment as a matter of law on this claim.

¶4.    We thus affirm the judgment dismissing Johnson’s equal-protection and due-process

claims.

                              Facts and Procedural History

       I.     Johnson’s Requests for Special Exception

              A.     First Request

¶5.    Johnson’s father, Malcolm Johnson (Malcolm), owns a duplex on East Dinkins Street


                                              2
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. Instead, the only way to get from Johnson’s lot to East Dinkins Street was to use an

easement across his father Malcolm’s driveway.

¶6.    Under section 1.36.02 of the Unified Development Code for the City of Canton,

Mississippi:

       Every building or structure hereafter constructed, moved, or structurally
       altered shall have direct access to a public (dedicated) street and shall be so
       located as to provide safe and convenient access for servicing, fire protection,
       and required off-street parking.

Since Johnson’s lot lacked both direct and safe-and-convenient access to a public street, he

was told he would have to obtain a special variance from the City’s Zoning Commission to

build his proposed home. So in December 2005 he appeared before the Zoning Commission.

The Commission voted to deny his request for a special exception to the ordinance.

¶7.    Johnson appealed the Commission’s decision to the Board of Aldermen. He appeared

before the Board in the January 2006 meeting. According to Johnson, at some point during

this meeting, Alderman Weems told him he would have to build a street to his lot and

publicly dedicate it before building a home on his lot. But that was not the Board’s official

action. Johnson had told the Board he no longer had just an easement. According to

                                              3
Johnson, he had recently purchased a fifteen-foot strip of property connecting his lot to East

Dinkins Street. Because the Zoning Commission’s decision had been based on Johnson only

having an easement, the Board sent the matter back to the Zoning Commission to decide if

Johnson’s ownership of his father’s driveway changed its decision.

              B.     Second Request

¶8.    In June 2006, the Zoning Commission’s attorney sent the Commission a letter

advising that the fifteen-foot strip met the direct-access requirement of the city ordinance.

(The letter was silent about the convenient-access requirement.) The Commission took up

the matter at a special meeting held in September 2006. Once again the Commission voted

to deny Johnson a permit. In the Commission’s view, the fifteen-foot strip, while perhaps

technically compliant with the direct-access requirement, skirted the “intent” of the

ordinance. The ordinance was aimed at preventing the construction of houses behind other

houses, resulting in unsafe and inconvenient emergency-services access and off-street

parking.

¶9.    Johnson made a second appeal to the Board, which tabled his request. Because

Johnson presented no proof to back up his claim that he now had direct access to East

Dinkins Street, the Board asked Johnson to present at their next meeting a scaled drawing of

his newly configured lot. So in December 2006, Johnson reappeared before the Board with

the requested drawing. Despite the drawing, the Board, in a three-to-one vote, adopted the

recommendation of the Zoning Commission and denied Johnson’s application for a special


                                              4
exception.

              C.     Third Request

¶10.   A year and half later, in July 2008, Johnson went back to the Zoning Commission.

While the record is not exactly clear what happened in the interim, Johnson alleges he bought

an additional “strip” on the other side of his father’s lot to provide access to East Dinkins

Street. But in the Commission’s view, Johnson’s lot still did not give sufficient access for

fire trucks to get to Johnson’s proposed house.      Plus, since the strips would be private

driveways, not public streets, the City could not keep Johnson from blocking these driveways

with parked cars and preventing access to his house. Thus, the Commission determined

Johnson’s lot was still noncompliant. For the third time, the Commission denied Johnson’s

request for a special exception to build a “house behind a house.” And a month later, the

Board followed the Commission’s recommendation and denied Johnson’s appeal.

       II.    Johnson’s Lawsuit

¶11.   Ten months later, in May 2009, Johnson filed suit in the Madison County Circuit

Court.1 He named the City of Canton, the Board of Aldermen, and the Zoning Commission

as defendants. Johnson brought his claim under title 42, section 1983 of the United States

Code (2012). This section creates a civil cause of action for the deprivation of constitutional

rights. 42 U.S.C. § 1983. While the Madison County Circuit Court had concurrent



       1
         The record is unclear whether Johnson also appealed the Board’s decision to the
circuit court through a separate bill of exceptions.

                                              5
jurisdiction to hear his section 1983 claim, to be successful, Johnson had to show the City

violated a federally protected right. Starnes v. City of Vardaman, 580 So. 2d 733, 737 (Miss.

1991).

¶12.     The two federally protected rights Johnson claimed were violated were his Fourteenth

Amendment rights to due process of law and equal protection under the law. See U.S. Const.

amend XIV. Johnson alleged the City “arbitrarily and capriciously” denied his request to

build a home, in violation of his due-process rights. He also claimed the Board had never

denied anyone else’s request to build a home. He attributed his different treatment to the

fact he is African American.

¶13.     After discovery, the City, Board, and Zoning Commission filed a motion for summary

judgment. Johnson had provided the names of nine homeowners he claimed were permitted

to build a “house behind a house.” But Johnson gave no details about when these homes

were constructed. Nor did he specify why they too were in violation of the ordinances’s

direct-and-convenient-access requirement. He also failed to present any evidence the

homeowners had applied for and were granted the same special exemption Johnson had

unsuccessfully sought. The City offered evidence from its building official that eight of the

nine homes were built between 1930 and 1960. The ninth home was built in 1978, with the

current owners, the McGees, adding on a room in 2008.

¶14.     The building official opined Johnson would need a special permit because the

proposed home site did not conform to the City’s street-frontage requirement. The City also


                                              6
cited Johnson’s deposition where he admitted he had combed through the City records and

found no application for the same special exemption by any Caucasian homeowners.

¶15.   In response, Johnson argued summary judgment was improper because whether his

lot had direct access to East Dinkins Street was a “material fact dispute.” He cited the 2006

letter by the Zoning Commission’s attorney, in which the attorney wrote that Johnson’s lot

was now compliant with the direct-access requirement. He also pointed to the fact white

homeowners were allowed to add a room to their home in 2008. And he asserted “no other

person in the history of Canton was told they had to build a street”—presumably a reference

to Alderman Weems’s suggestion during the January 2006 Board meeting.

¶16.   After a hearing in April 2013, the circuit court ruled summary judgment should be

granted. But the final order was not entered until November 2013. Johnson then filed a

Rule 59 motion to alter the judgment. See M.R.C.P. 59(e). In response to this motion, the

circuit court entered an amended order, clarifying his reasons for granting summary

judgment. Johnson timely appealed.

                                        Discussion

       I.     Immunity

¶17.   On appeal, one of Johnson’s claimed errors was that the circuit court erroneously

granted the City immunity. But this is a red herring. The circuit court did not grant

immunity to the municipality itself. Instead, the amended order was clear that summary

judgment based on immunity was only being granted on Johnson’s claims brought against


                                             7
the members of the Board of Aldermen and Zoning Commission as “individual defendants.”2

On appeal, Johnson does not contest that Board and Zoning Commission members, in their

individual capacities, are immune. Rather, he insists his claims were against the City of

Canton—which encompasses the Board of Aldermen and Zoning Commission. Since the

City itself was not granted immunity, this is a nonissue.

        II.    Section 1983 Claims

¶18.    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. Summary judgment was granted

because Johnson failed to establish triable 1983 claims.

¶19.    Section 1983 is not a source of substantive rights but instead provides the mechanism

for vindicating those rights. Albright v. Oliver, 510 U.S. 266, 271 (1994). Under section

1983:

        Every person who, under color of any statute, ordinance, regulation, custom,
        or usage, of any State or Territory or the District of Columbia, subjects, or
        causes to be subjected, any citizen of the United States or other person within


        2
         The circuit court ruled that the members of “the Board of Aldermen for the City of
Canton [were] absolutely immune from liability under § 1883 for their legislative activities,”
citing Bogan v. Scott-Harris, 523 U.S. 44, 48-56 (1998), and Bond v. Marion County Board
of Supervisors, 807 So. 2d 1208, 1220-21 (¶¶44-46) (Miss. 2001). The amended order
further stated:

        To the extent the Complaint in this cause is against the Board of Aldermen
        (and the members of the Zoning Commission to the extent they were involved
        in the vote of the Board of Aldermen that is the basis of this complaint) as
        “individual defendants,” “employed by the City of Canton,” for any violation
        of § 1983, the Court finds that summary judgment should be granted.

                                              8
       the jurisdiction thereof to the deprivation of any rights, privileges, or
       immunities secured by the Constitution and laws, shall be liable to the party
       injured in an action at law, suit in equity, or other proper proceeding for
       redress[.]

42 U.S.C. § 1983. So for his section 1983 claims to survive summary judgment, Johnson

had to show he was deprived a federal constitutional right by a person acting under color of

state law. See Smith v. Young Men’s Christian Assoc. of Montgomery, Inc., 462 F.2d 634,

647 (5th Cir. 1972).

¶20.   For purposes of section 1983, the United States Supreme Court has deemed a local

governing body like the City of Canton a “person.” So cities like Canton are susceptible to

a section 1983 lawsuit for allegedly unconstitutional actions, implemented “through a policy

statement, ordinance, regulation, or decision officially adopted and promulgated by that

body’s officers[.]” Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690 (1978). Here,

Johnson does not claim the city ordinance, which required not only direct access to a city

street but also safe and convenient access for servicing, fire protection, and off-street

parking, is unconstitutional. Rather, he suggests the City’s application of the ordinance to

his property violated his constitutional rights. Specifically, Johnson asserted the City’s

decision violated his equal-protection rights and/or deprived him of due process of law. See

U.S. Const. amend XIV.

              A.       Summary-Judgment Standard

¶21.   The City moved for—and was granted—summary judgment on both of these claims.

As the summary-judgment movant, the City bore “the burden of persuading the trial judge

                                             9
that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established,

[it was] entitled to judgment as a matter of law.” Karpinsky v. Am. Nat’l Ins., 109 So. 3d 84,

88 (¶11) (Miss. 2013) (quoting Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So. 2d 1346, 1355

(Miss. 1990)). But Johnson had a burden too—to produce evidence to create triable equal-

protection and due-process claims. See id. at 88-89 (¶11).

¶22.   According to Johnson, the circuit court, in granting the City’s summary-judgment

motion, ignored triable fact issues. Johnson is correct that material factual disputes are for

trial juries to decide, not a judge at the summary-judgment stage. See Duckworth v. Warren,

10 So. 3d 433, 439 (¶16) (Miss. 2009). And close evidentiary calls should lean in the

nonmovant’s favor. Smith v. Waggoners Trucking Corp., 69 So. 3d 773, 777 (¶16) (Miss.

Ct. App. 2011). But when the “pleadings, depositions, answers to interrogatories and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as

to any material fact and that the moving party is entitled to judgment as a matter of law,”

summary judgment “shall be rendered.” Karpinsky, 109 So. 3d at 88 (¶10) (emphasis

added) (quoting M.R.C.P. 56(c)).

¶23.   We review the grant of summary judgment de novo, “viewing the evidence in the light

most favorable to the party against whom the motion has been made.” Id. at (¶9) (citation

omitted). And in doing so, we reach the same conclusion as the circuit court. Even when

the evidence is viewed in a light most favorable to Johnson, we find he still failed to produce

sufficient evidence to create triable claims that his equal-protection and/or due-process rights


                                               10
were violated.

              B.      Equal Protection

¶24.   Under the Fourteenth Amendment, “No State shall . . . deny to any person within its

jurisdiction the equal protection of the laws.” U.S. Const. amend XIV. A violation of this

clause “ occurs only when, inter alia, the governmental action in question classifies between

two or more relevant persons or groups.” Johnson v. Rodriguez, 110 F.3d 299, 309 (5th Cir.

1997) (citation omitted).      When claiming the classification was based on racial

discrimination—as Johnson does here—“the plaintiff must allege and prove that he received

treatment different from that received by similarly situated individuals and that the unequal

treatment stemmed from a discriminatory intent.” Priester v. Lowndes Cnty., 354 F.3d 414,

424 (5th Cir. 2004) (citation omitted).

¶25.   Here, Johnson presented no evidence to establish he was treated differently from any

other similarly situated landowner in Canton. He alleges nine white property owners have

“houses behind houses.” But at the summary-judgment stage, “mere allegations” are not

enough. Suddith v. Univ. of S. Miss., 977 So. 2d 1158, 1167 (¶9) (Miss. Ct. App. 2007).

Johnson had to produce evidence to support his allegations, which he failed to do. See id.

¶26.   In response, 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


                                              11
access to a public street. So none of these homes were granted a special exemption by the

Board. Nor were their owners granted an exemption based on their race.

¶27.   The only evidence of recent building taking place was the extra room the McGees

added to their “mother-in-law suite” in 2008. And there is no record evidence this

construction took place on a noncompliant lot. There is also no evidence to support

Johnson’s claim that race factored into the McGees being allowed to build, while he was

issued a stop-work order. The City’s Building Officer testified the McGees were not

required to obtain a special exemption because they were merely adding square footage to

an existing structure. They did not build a brand new house on a noncompliant lot. So the

McGees were not “similarly situated individuals” that received different treatment than

Johnson.

¶28.   Johnson also makes much of the supposed fact “no other person in the history of

Canton was required to build a road.” But he also has no evidence the City has ever

permitted any person to build a house that has no access to a road. Because Johnson has no

evidence the City distinguished his application for a special exception from any other

person—let alone a person of a different race—he failed to meet his burden of production

on his equal-protection claim.

¶29.   Thus, we affirm the circuit court’s grant of summary judgment on Johnson’s equal-

protection claim.

             C.     Due Process


                                           12
¶30.   The Fourteenth Amendment also prohibits a State from “depriv[ing] any person of

life, liberty, or property, without due process of law.”

                     1.      Property Interest

¶31.   While loss of property or liberty is not necessary for an equal-protection claim, the

loss of a property or liberty interest is fundamental to a due-process claim. Brennan v.

Stewart, 834 F.2d 1248, 1257 (5th Cir. 1988).

¶32.   Johnson is not claiming the property he lost was his right to a special exemption. In

other words, he is not arguing he had a right to build a house on a nonconforming lot. Cf.

Shelton v. City of Coll. Station, 780 F.2d 475, 479 (5th Cir. 1986) (questioning whether a

city, by refusing to grant property owners a variance to an undisputedly valid zoning

ordinance, deprived the owners of any recognized property interest). Instead, he claims he

had a right to build a house because his lot in fact conformed to the ordinance’s

requirements. According to him, by deeming his lot noncompliant, the City deprived him

of the use and enjoyment of his property.

¶33.   Johnson is right that the loss of use and enjoyment of real property is a recognized

property interest. See Simi Inv. Co. v. Harris Cnty., 236 F.3d 240, 249 (5th Cir. 2001). So

the pivotal question becomes—Has Johnson shown this deprivation occurred “without due

process of law”?

                     2.      Rational-Basis Review

¶34.   Due process in its most basic form requires notice and an opportunity to be heard.


                                              13
Matthews v. Eldridge, 424 U.S. 319, 348 (1976). On appeal, Johnson does not claim he was

denied this type of “procedural” due process. Still, while one generally does not have to

exhaust administrative remedies before filing a section 1983 claim, procedural-due-process

claims are an exception. Rathjen v. Litchfield, 878 F.2d 836, 839-40 (5th Cir. 1989).

Johnson could not argue he was denied an opportunity to be heard without first exhausting

the appellate process. See id. And here, there is no evidence Johnson appealed the Board’s

decision through a bill of exceptions prior to filing his section 1983 suit.

¶35.   What Johnson is urging is a “substantive” due-process claim. See Brennan, 834 F.2d

at 1255-57 (explaining the various “strands” of substantive due process). “The conceptual

essence of ‘substantive’ due process is the notion that the Due Process Clause—in addition

to setting procedural minima for deprivations of life, liberty, or property—bars outright

‘certain government actions regardless of the fairness of the procedures used to implement

them.’” Id. at 1255 (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)).

¶36.   “In the context of land[-]use regulation, that is, in situations where the governmental

decision in question impinges upon a landowner’s use and enjoyment of property, a

land-owning plaintiff states a substantive due process claim where he or she alleges that the

decision limiting the intended land use was arbitrary or capricious.” Simi Inv. Co., 236 F.3d

at 249 (citation omitted). “Arbitrary and capricious” takes on a specific meaning in this

context. See Shelton, 780 F.2d at 482-83 (contrasting review of an administrative decision

with constitutional review of a “quasi-legislative” decision). “[W]hen challenges to . . .


                                              14
land-use decisions aspire to constitutional stature, we view those decisions as

‘quasi-legislative’ in nature, and thus sustainable against a substantive due process challenge

if there exists therefor ‘any conceivable rational basis.’” FM Props. Oper. Co. v. City of

Austin, 93 F.3d 167, 174 (5th Cir.1996) (quoting Shelton, 780 F.2d at 477). “In other words,

such government action comports with substantive due process if the action is rationally

related to a legitimate government interest.” Id. (citations omitted).

¶37.   So the sole pertinent question is “whether a rational relationship exists between the

policy and a conceivable legitimate objective. If the question is at least debatable, there is

no substantive due process violation.” Id. (emphasis added). Johnson latches to the word

“debatable.” He argues, if a question is debatable, that means there is a material disputed

fact issue, making summary judgment improper. See M.R.C.P. 56(c). But whether a rational

relationship exists is a question of law for the court, not a question of fact for the jury.

Hidden Oaks, Ltd. v. City of Austin, 138 F.3d 1036, 1044 (5th Cir. 1998). “The key inquiry

is whether the question is at least debatable. If it is, there is no denial of substantive due

process as a matter of federal constitutional law.” Shelton, 780 F.2d at 483 (emphasis added

and internal citation omitted).

¶38.   We find it is 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. It does so by ensuring that

fire trucks and other emergency and service vehicles could access the City’s homes and


                                              15
buildings. We emphasize Johnson has not challenged the ordinance or argued that it does

not in fact promote a legitimate government interest. So that issue is not in play. What we

have before us is the Zoning Commission’s determination Johnson’s proposed building site

would not provide such access. It is true the fifteen-foot strip technically connected his lot

to a public street. But this long, thin strip did not give the safe and convenient access the

ordinance required. In particular, because it would be a private driveway, the City could not

ensure this narrow strip would remain open for emergency vehicles. The Board agreed with

the Zoning Commission and followed its recommendation.

¶39.   In Hidden Oaks, the Fifth Circuit emphasized substantive-due-process analysis of a

zoning decision has a “limited range.” Id. Zoning-board decisions “do not violate

substantive due process unless the court finds no ‘conceivable rational basis’ on which the

board might have based its decision.” Id. (quoting Shelton, 780 F.2d at 477). Here, there

was a “conceivable rational basis” for the Board’s decision that Johnson’s proposed home

did not comply with the direct-and-convenient-access ordinance. The Board did not believe

the house could be “so located as to provide safe and convenient access for servicing, fire

protection, and required off-street parking.” So its decision, as a matter of law, was not

“arbitrary” and could not form the basis of a viable substantive-due-process claim.

¶40.   Like the property owner in Hidden Oaks, Johnson “does not appear to appreciate the

limited range of a substantive due process analysis.” Hidden Oaks, 138 F.3d at 1044.

Nowhere in his substantive-due-process claim does he argue the City’s decision was not


                                             16
rationally related to a legitimate governmental interest. Instead, Johnson simply relies on the

fact the Zoning Commission’s attorney found his newly configured lot complied with the

direct-access requirement—though he omits that the letter did not say his lot met the safe-

and-convenient-access requirement. He also points to Alderman Weems’s unofficial

suggestion that Johnson could build a road and publicly dedicate it. But the nature of

substantive-due-process review is limited strictly to asking if the Board’s decision was

rationally related to a conceivable legitimate objective. And here, Johnson has failed to

articulate why it was not. Therefore, his due-process claim also fails and was likewise

properly dismissed on summary judgment.

¶41. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR
AND WILSON, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT
SEPARATE WRITTEN OPINION.




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