United States Court of Appeals,
Eleventh Circuit.
No. 94-8919.
Norris B. STRICKLAND, Plaintiff-Appellee, Cross-Appellant,
v.
Michael ALDERMAN, in his Individual and Official Capacity, Ed
Richardson, in his Individual and Official Capacity, Jerry
McDaniel, Mayor of the City of Jesup, Georgia, in his Individual
and Official Capacity, City of Jesup, Georgia, Defendants-
Appellants, Cross-Appellees.
Feb. 6, 1996.
Appeals from the United States District Court for the Southern
District of Georgia. (No. CV293-36), Anthony A. Alaimo, Judge.
Before HATCHETT and BIRCH, Circuit Judges, and GODBOLD, Senior
Circuit Judge.
HATCHETT, Circuit Judge.
In this appeal, the court holds that the city of Jesup,
Georgia and its officials did not purposefully discriminate against
a land developer regarding building permits and standing ground
water. We affirm in part and reverse in part.
FACTS
In 1966, Norris B. Strickland purchased a portion of a
preexisting subdivision and renamed the subdivision Wayne Terrace.
Later that year, the city of Jesup, Georgia annexed Wayne Terrace.
At the time of annexation, subdivisions in Jesup were subject to an
ordinance that required each subdivision lot to have water and
sewer connections. Because Wayne Terrace had been recorded prior
to annexation, it was not subject to Jesup's subdivision ordinance.
In 1969, the city of Jesup amended its subdivision ordinance to
shift the burden of furnishing water and sewer connections from the
city to the owners of subdivisions. The amended subdivision
ordinance did not affect Wayne Terrace as originally platted.
Strickland, however, acquired the remaining portion of the original
subdivision in 1972 and added that tract of land to Wayne Terrace.
As a result, the newly acquired property became subject to Jesup's
subdivision ordinance as amended in 1969.
In 1977, Wayne Terrace began receiving water and sewer
services from the city. Several of the lots in Wayne Terrace,
however, did not have water and sewer connections. In 1985, city
officials informed Strickland that he was in violation of the
city's subdivision ordinance and revoked his subdivision license.
Although the city revoked Wayne Terrace's subdivision privileges,
the city continued to grant Strickland's requests for building
permits in Wayne Terrace. As a result of the revocation, however,
a dispute developed between Strickland and the city as to whether
the 1969 subdivision ordinance applied to Wayne Terrace. In 1988,
the parties reached a settlement, and Wayne Terrace's subdivision
privileges were reinstated.
Under the terms of the settlement agreement, Strickland agreed
to deposit funds with the city to purchase the necessary plumbing
materials for all the lots in Wayne Terrace without water and sewer
connections. The city agreed to provide the labor necessary to
install the water and sewer connections.1 Notwithstanding the
terms of the agreement, Strickland requested building permits for
1
The city entered into similar settlement agreements with
other subdivision developers in order to clarify the developer
and the city's responsibilities under the 1969 subdivision
ordinance.
lots that lacked water and sewer connections without depositing
funds for such connections. In spite of Strickland's noncompliance
with the agreement, the city sent Strickland estimates of the cost
of the connections. Strickland paid the amount listed on the
estimate statements. Upon receiving payment, the city installed
water and sewer connections for lots on which it had received
building permit requests. Prior to 1990, the city discontinued
sending Strickland estimates for water and sewer connections and
began denying all informal building permit requests in Wayne
Terrace.
Sometime after April 1988, Strickland telephoned city hall to
request a building permit for a lot in Wayne Terrace. An
unidentified person at city hall told Strickland that no building
permits would be issued for Wayne Terrace. At about the same time,
Strickland attempted to sell the remaining lots in Wayne Terrace to
developer Andrew Haman for $30,000. Many of these lots were
without water and sewer connections. Haman met with the city
building inspector, Ed Richardson, to discuss his pending purchase
of Wayne Terrace. Richardson informed Haman that Wayne Terrace had
some problems with water and sewer connections, and as a result, he
would be unable to obtain building permits. Because of his
conversation with Richardson, Haman did not purchase Wayne Terrace.
The following year, in 1991, Strickland agreed to sell a Wayne
Terrace lot to David Conner. Prior to signing the sales agreement,
Conner went to city hall to apply for a building permit. While
Conner was filling out the building permit application form, a city
employee told him that a building permit could not be issued for
the lot until Strickland requested the city to install a sewer
connection. Conner did not complete his application or purchase
property in Wayne Terrace. Later in 1993, Strickland telephoned
city hall and made a second request for a building permit. An
unidentified city agent denied this request. At no time since
entering the settlement agreement has Strickland deposited funds
with the city or requested water and sewer connections for the
remaining lots.
Sometime before April 1991, the city, while installing water
and sewer connections, changed the topography of Strickland's
property, substantially affecting water drainage on the property.
On April 24, 1991, the city sent Strickland a letter advising him
that it had received several complaints concerning stagnant water
on his property. In this letter, the city informed Strickland that
he was in violation of the city's standing water ordinance and also
informed him that if he failed to correct the problem he would be
issued a citation. Strickland did not correct the standing water
problem on his property, and he was issued a citation in August
1991. At the time Strickland filed this action, he was the first
person to receive a citation for violating the city's standing
water ordinance.
PROCEDURAL HISTORY
On February 26, 1993, Strickland, appellee and
cross-appellant, filed this lawsuit pursuant to 42 U.S.C. § 1983
against appellants and cross-appellees City Manager Michael
Alderman, Mayor Jerry McDaniel, City Building Inspector Ed
Richardson (in their individual and official capacities), and the
City of Jesup (collectively, "appellants"). In the complaint,
Strickland alleges that the city's denial of building permits and
prosecution of the standing water citation violated his
constitutional rights to substantive due process, procedural due
process, and equal protection under the Fifth and Fourteenth
Amendments.
At a jury trial in April 1994, at the close of Strickland's
case and at the close of all the evidence, the appellants moved for
judgment as a matter of law pursuant to rule 50 of the Federal
Rules of Civil Procedure. The district court reserved ruling on
the motions and submitted the case to the jury on all claims. On
April 21, 1994, the jury returned a verdict in favor of Strickland,
awarding him $110,000 in compensatory damages against the city and
$2,000 in punitive damages against each of the city officials.
On April 28, 1994, Strickland filed a motion to amend or alter
the judgment seeking to permanently enjoin the city from
prosecuting him for the standing water violation. In response, on
May 9, 1994, appellants renewed their motion for judgment as a
matter of law claiming that: (1) the 1988 settlement agreement
precluded Strickland from claiming that the 1969 subdivision
ordinance did not apply to Wayne Terrace; (2) Strickland's claims
based on the city's denial of building permits were not ripe for
adjudication because the city had not rendered a final decision
with respect to those denials; and (3) Strickland did not prove an
equal protection violation with respect to the city's prosecution
of the standing water violation. On July 5, 1994, the district
court granted in part and denied in part appellants' motion.
Specifically, the district court granted the motion with respect to
Strickland's claims pertaining to the denial of building permits
finding that the claims were not ripe for adjudication because the
city had not rendered a final decision. Accordingly, the court
vacated the jury's award of compensatory damages against the city.
With respect to Strickland's standing water citation, the court
affirmed the jury's award of punitive damages against the city
officials. Moreover, the court granted Strickland's motion to
amend or alter the judgment and permanently enjoined the city from
continuing its prosecution of Strickland for the standing water
violation. Appellants appeal the district court's judgment, and
Strickland cross-appeals.
CONTENTIONS
Appellants contend that the district court erred in denying
their motion for judgment as a matter of law on the equal
protection claim based upon the standing water citation.
Specifically, appellants contend that Strickland did not establish
a prima facie case of equal protection violation because he failed
to prove that: (1) other property owners were similarly situated;
and (2) the city purposefully discriminated against him. In
response, Strickland asserts that he presented sufficient evidence
that appellants treated him differently than similarly situated
persons. Strickland also argues that the evidence presented proves
that the city prosecuted him with discriminatory intent;
therefore, the district court properly denied appellants' motion
for judgment as a matter of law.
On cross-appeal, Strickland contends that his due process and
equal protection claims based on the city's denial of building
permits are ripe for adjudication and that the district court erred
in granting the motion for judgment as a matter of law on the basis
that he had not obtained a final decision from the city.
Specifically, Strickland contends that he is excused from obtaining
a final decision from the city because attempting to do so would
have been futile. In response, appellants assert that the futility
exception to the final decision requirement has no application in
this case because Strickland did not make a significant effort to
obtain building permits. Thus, they assert that the district court
properly granted their motion on this basis.
ISSUES
We address two issues: (1) whether Strickland presented
sufficient evidence to support a finding that he was similarly
situated to other property owners; and (2) whether Strickland's
due process and equal protection claims based upon the city's
denial of building permits were ripe for adjudication.
DISCUSSION
This appeal arises from the district court's denial of
appellants' motion for judgment as a matter of law. We first
address appellants' arguments. In reviewing the district court's
disposition of a motion for judgment as a matter of law, we apply
the same standard as the district court used in determining whether
to grant the motion. Walker v. Nationsbank of Florida N.A., 53
F.3d 1548, 1555 (11th Cir.1995). We review all of the evidence in
the light most favorable to, and draw all reasonable inferences in
favor of, the party opposing the motion. Walker, 53 F.3d at 1555.
A post-verdict motion for judgment as a matter of law should only
be granted where "reasonable men could not arrive at a contrary
verdict." Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969)
(en banc ).2 "Where substantial conflicting evidence is presented
such that reasonable people "in the exercise of impartial judgment
might reach different conclusion[s],' the motion should be denied."
Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1558 (11th Cir.1988)
(quoting Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969)
(en banc )).
A. Sufficiency of the evidence pertaining to the equal protection
claim based upon the prosecution
Appellants challenge the district court's denial of their
motion for judgment as a matter of law on the grounds that
Strickland has failed to prove that he was similarly situated to
3
other property owners. It is well settled that unequal
application of a facially neutral statute may violate the Equal
Protection Clause. Eide v. Sarasota County, 908 F.2d 716, 722
(11th Cir.1990), cert. denied, 498 U.S. 1120, 111 S.Ct. 1073, 112
L.Ed. 1179 (1991); Mackenzie v. City of Rockledge, 920 F.2d 1554,
1559 (11th Cir.1991). In order to prevail on an equal protection
claim based upon the application of a facially neutral statute, it
must be establish that: (1) the plaintiff was treated differently
than similarly situated persons; and (2) the defendant unequally
2
In Bonner v. City of Prichard, 661 F.2d 1206 (11th
Cir.1981) (en banc), this court adopted as precedent all
decisions of the former Fifth Circuit Court of Appeals decided
prior to October 1, 1981.
3
Appellants also challenge the district court's denial of
the motion on the basis of qualified immunity. Because we
reverse on other grounds we do not address this argument.
applied the facially neutral statute for the purpose of
discriminating against the plaintiff. E & T Realty v. Strickland,
830 F.2d 1107, 1109-10 (11th Cir.1987), cert. denied, 485 U.S. 961,
108 S.Ct. 1225, 99 L.Ed.2d 425 (1988).
Strickland asserts that appellants knew of other property
owners in violation of the standing water ordinance but singled him
out for prosecution because he had filed an earlier lawsuit against
the city. Appellants contend that Strickland was not similarly
situated to other property owners for two reasons. First, the
standing water on Strickland's property persisted months longer
than the standing water on other property. Second, Strickland's
property was the only property of which the city had received
complaints concerning standing water.4
After reviewing the evidence in the light most favorable to
Strickland, we conclude that the evidence adduced at trial does not
support the jury's finding that Strickland was similarly situated
to other property owners. The evidence presented at trial
established that immediately after a heavy rain several owners had
standing water on their property in violation of the city's
standing water ordinance. But, unlike Strickland's property, the
standing water on these properties would dissipate in a matter of
days. Moreover, the evidence at trial also revealed that
4
In addition, appellants argue that the issuance of
citations to property owners about whom they received complaints
is rationally related to a government interest. Because the
"rational relation" standard applies to equal protection
challenges to a statute that discriminates on its face, but not
to challenges based upon the alleged discriminatory application
of a facially neutral statute, we do not address this argument.
See E & T Realty, 830 F.2d at 1112 n. 5.
Strickland's property was the only property of which the city had
received complaints about standing water. Strickland points out
that the city helped create the standing water problem on his
property for which he is being prosecuted. This fact, although
probative on the issue of whether the city's prosecution was
brought for an impermissible purpose, is not relevant to the
determination of whether Strickland is similarly situated to other
property owners.
Because Strickland presented no evidence indicating that other
property owners violated the standing water ordinance as
egregiously as he did, we conclude that Strickland has not made a
prima facie showing that he was similarly situated. 5 "Different
treatment of dissimilarly situated persons does not violate the
Equal Protection Clause." E & T Realty, 830 F.2d at 1109.
Accordingly, we reverse district court's denial of judgment as a
matter of law as to this claim. For the foregoing reason, we need
not address whether Strickland has shown purposeful discrimination.
B. Ripeness of equal protection claim pertaining to denial of
building permits
On cross-appeal, Strickland challenges the district court's
grant of judgment as a matter of law with respect to his claims
based on the city's failure to issue building permits. Strickland
contends that he was arbitrarily denied permits in violation of the
Fifth and Fourteenth Amendments and asserts that his claims are
ripe for adjudication.
5
Even assuming that sufficient evidence did exist, we would
reverse the denial of judgment as a matter of law on this claim
because the trial court erroneously instructed the jury on the
elements of an as applied equal protection claim.
As applied due process and equal protection claims are ripe
for adjudication when the local authority has render its final
decision with respect to the application of the regulation. Eide,
908 F.2d at 725. If the authority has not reached a final
decision, "the [property owner] cannot assert an as applied
challenge to the decision because, in effect, a decision has not
been made." Eide, 908 F.2d at 725. An exception to the final
decision requirement exists where it would be futile for the
plaintiff to pursue a final decision.6 Eide, 908 F.2d at 726.
Because Strickland has not obtained a final decision from the city,
he must demonstrate that it would have been futile for him to
pursue a final decision.7
In the instant case, Strickland alleges that the city began
arbitrarily denying him building permits sometime after April 1988.
6
The Seventh and Ninth Circuits require a plaintiff
attempting to fall within the futility exception to submit at
least one meaningful application to the local authority. See
Unity Ventures v. Lake County, 841 F.2d 770, 775 (7th Cir.1988),
cert. denied, 488 U.S. 891, 109 S.Ct. 226, 102 L.Ed.2d 216
(1988); Herrington v. Sonoma County, 834 F.2d 1488, 1494-95 (9th
Cir.1987), as amended, 857 F.2d 567, 569 (9th Cir.1988), cert.
denied, 489 U.S. 1090, 109 S.Ct. 1557, 103 L.Ed.2d 860 (1989).
In Eide, we declined to adopt the "one meaningful application"
rule because the facts in that case did not convince us that it
would have been futile for the plaintiff to obtain a final
decision. Eide, 908 F.2d at 726-27 n. 17. Similarly, we do not
decide whether the "one meaningful application" rule applies in
this case because Strickland has not set forth sufficient facts
to support a finding of futility.
7
In an attempt to circumvent the final decision requirement,
Strickland argues that the city's denial of building permits to
prospective purchasers Conner and Haman directly and
substantially harmed his interests, and therefore he asserts that
he has third-party standing to bring these claims under 42 U.S.C.
§ 1983. This argument is baseless. Neither Conner nor Haman
obtained a final decision from the city. In fact, no prospective
purchaser even submitted a building permit application to the
city.
At trial, Strickland testified that he telephoned city hall on two
occasions and requested building permits for lots located in Wayne
Terrace. Both times an unidentified person denied his request.
Strickland did not fill out an application to formally request a
building permit. In fact, Strickland at no time traveled to city
hall to make inquires about obtaining building permits for Wayne
Terrace. Strickland argues that it would have been futile for him
to apply for a building permit because the city allegedly did not
allow applicants to apply for building permits unless it intended
to approve the application. In support of this argument,
Strickland notes that the city has no record of unapproved building
permit applications.
We find Strickland's argument unpersuasive. "Decisions on
ripeness are fact sensitive." Eide, 908 F.2d at 727. Here, the
city had no opportunity to render a final decision with respect to
Strickland's permit requests because Strickland did not comply with
the building permit application process. Because Strickland has
not set forth facts sufficient to prove futility, we conclude that
his claims are not ripe. Accordingly, we affirm the district
court's grant of judgment as a matter of law as to these claims.
CONCLUSION
We reverse the district court's denial of appellants Alderman,
McDaniel, Richardson and the City of Jesup's motion for judgment as
a matter of law. We also set aside the injunction enjoining the
city from continuing to prosecute Strickland in connection with his
violation of the city's standing water ordinance. Additionally, we
affirm the district court's determination that Strickland's claims
based upon the denial of building permits are not ripe for
adjudication.
AFFIRMED IN PART and REVERSED IN PART.