Bryan v. City of Madison, Miss., No. Civ.A. 3:97-CV-73WS.

CourtUnited States District Courts. 5th Circuit. Southern District of Mississippi
Writing for the CourtWingate
Citation130 F.Supp.2d 798
Docket NumberNo. Civ.A. 3:97-CV-73WS.
Decision Date31 March 1999
PartiesSteve BRYAN, Plaintiff, v. CITY OF MADISON, MISSISSIPPI, et al., Defendants.
130 F.Supp.2d 798
Steve BRYAN, Plaintiff,
v.
CITY OF MADISON, MISSISSIPPI, et al., Defendants.
No. Civ.A. 3:97-CV-73WS.
United States District Court, S.D. Mississippi, Jackson Division.
March 31, 1999.

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COPYRIGHT MATERIAL OMITTED

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Joel W. Howell, III, Joel W. Howell, III, Steven H. Smith, Steven H. Smith, PLLC, Jackson, MS, for Plaintiff.

John Hedglin, Stephen W. Rimmer, Rimmer, Rawlings, Macinnis & Hedglin, P.A., Madison, MS, for Defendants.

MEMORANDUM OPINION AND ORDER

WINGATE, District Judge.


Before the court is the motion of the plaintiff Steve Bryan (hereinafter "plaintiff") for partial summary judgment on the issue of liability brought pursuant to Rule 56(a)1 of the Federal Rules of Civil Procedure. The plaintiff, a real estate developer seeking to construct an apartment complex on a tract of property zoned for that purpose, but owned by another individual, brings this cause of action pursuant to Title 42 U.S.C. §§ 19832 and 19853 against the City of Madison, Mayor Mary Hawkins (hereinafter the "Mayor"), Alderman Tim Johnson, and Alderman Lisa Clingan-Smith (hereinafter referred to collectively as the "Aldermen"), claiming that his civil rights were violated when he was not granted a permit by the Mayor and Board of Aldermen to proceed with the construction of a multi-family dwelling complex in the City of Madison, Mississippi.

Also before the court is the defendants' motion for summary judgment pursuant to

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Rule 56(b).4 This motion seeks summary judgment on behalf of the individual defendants, Mayor Mary Hawkins, Alderman Tim Johnson, and Alderman Lisa Clingan-Smith, claiming that they are entitled to legislative immunity in their respective individual capacities from the plaintiff's claims. On behalf of the City of Madison, the defendants' summary judgment motion argues that the property owner (who is not the plaintiff) has not been deprived of every economically viable use of his land in the instant case; that there has been no "taking" of the owner's property requiring compensation; that denial of a discretionary permit does not constitute a "taking" under the Fifth Amendment; that no due process or equal protection violations have occurred; and that no civil conspiracy has been perpetrated by the City of Madison.

This court has jurisdiction over this matter pursuant to Title 28 U.S.C. §§ 1343(a)5 and 28 U.S.C. § 13316 (federal question).

I. PERTINENT FACTS

The plaintiff, a real estate developer, filed for the issuance of a building permit from the City of Madison, Mississippi, on March 18, 1994, seeking to construct an apartment complex on a tract of property zoned for that purpose, but actually owned by another individual. After initial approval of the building permit by the Madison Board of Aldermen, followed by the Mayor's veto of the Board's approval, the plaintiff appealed to the Circuit Court of Madison County, Mississippi, pursuant to Mississippi Code Annotated § 11-51-75 which provides for appeal from the decisions of boards of supervisors and municipal authorities by presenting a bill of exceptions setting forth the basis for appeal. The Honorable Circuit Judge John B. Toney found on March 23, 1995, that Mayor Hawkins possessed broad veto power pursuant to Mississippi Code Annotated § 21-3-157 and had been entitled to enter her veto. Judge Toney also held, however, that the Mayor unreasonably had based her veto in part on the unsupported contention that the plaintiff had agreed to provide the City of Madison a forty-foot buffer between the apartment complex and the street without any expectation of compensation. Judge Toney further held that subdivision regulations did not apply to the plaintiff, but that the plaintiff was required to submit a staging plan in accordance with the City's ordinance; that the plaintiff would not be required to present an impact study on increased traffic; that the

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requirement of a single centralized water meter for the entire apartment complex was arbitrary, capricious and unreasonable; and that failure of the record title owner to update his site plat from the one that had been drafted in 1919 could not be held against the plaintiff since he was not the title owner of the property. The case was remanded to the City of Madison for further proceedings in accordance with Judge Toney's Memorandum Opinion and Order. On the plaintiff's motion for reconsideration, Judge Toney also found on April 26, 1995, that the plaintiff would not be required to apply for a dimensional variance.

Mayor Hawkins continued to veto the plaintiff's site plan on various grounds, thereby causing the plaintiff to file additional bills of exceptions. Thereafter, on February 7, 1996, Judge Toney filed two opinions designed to bring the entire matter to a close.

In his first Memorandum Opinion and Order, Judge Toney found that the City's thirty-five foot height restriction was applied to the plaintiff's plan arbitrarily and that the City could not withhold a building permit on that basis. Judge Toney also found that the Mayor's last-minute effort to re-zone the property for uses other than for multi-family dwellings was illegal.

In his second Memorandum Opinion and Order also dated February 7, 1996, Judge Toney declared the plaintiff's development plan to be in compliance with all of the City of Madison's ordinances and directed the City of Madison to issue the plaintiff a building permit. Judge Toney also imposed sanctions on the City of Madison for its repeated attempts to block the plaintiff from obtaining a building permit. The way appeared to be cleared for the plaintiff to proceed with the proposed apartment complex; however, unforeseen circumstances, rather than Judge Toney's opinions, brought this matter to a close when the owner of the property on which the plaintiff proposed to construct the apartment complex sold the property to a third party. The third-party purchaser had another purpose in mind for the property and withdrew the plan to develop the apartment complex. Consequently, and subsequent to the two Memorandum Opinions and Orders issued by Judge Toney on February 7, 1996, the City of Madison moved to dismiss the plaintiff's appeals as moot because the property in question no longer was available for development. This turn of events obviated Judge Toney's directive that the City of Madison process and approve the plaintiff's request for a building permit. The plaintiff's several appeals to the Circuit Court of Madison County, Mississippi, were dismissed later by Judge Toney without prejudice as moot. Nevertheless, aggrieved that the delays promulgated by the City of Madison and its officials had ultimately denied the plaintiff a legitimate opportunity to construct the proposed apartment complex, the plaintiff brought this action, asserting constitutional violations and state tort claims.

II. THE ISSUES

The complaint filed by the plaintiff asserts that the City of Madison, the Mayor, and the Aldermen all committed constitutional violations against the plaintiff Steve Bryan, when on March 18, 1994,8 he had filed for approval of a site plan and for issuance of a building permit from the City of Madison, Mississippi. The plaintiff asserts that his rights to substantive and procedural due process were denied; that his "property" was "taken" without payment of just compensation; that he was denied equal protection of the law; that

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the defendants interfered tortiously with the plaintiff's business contract with the property owner to build the apartment complex; that the Mayor, the Aldermen, and others engaged in a civil conspiracy pursuant to Title 42 U.S.C. § 1985; and that the Mayor and Aldermen are liable to the plaintiff pursuant to Title 42 U.S.C. § 1986 for neglecting their duty to stop the conspiracy.

The plaintiff's complaint also asks this court to find that the Mayor and Aldermen acted in an arbitrary, capricious, unreasonable and/or discriminatory manner in reviewing, processing, and acting upon the requested building permit. To this end, the plaintiff's complaint asks this court to give preclusive or collateral estoppel effect to the opinions issued by the Circuit Court of Madison County, Mississippi, sitting in its appellate capacity under Mississippi Code Annotated § 11-51-759 in review of the actions taken by the Mayor and Board of Aldermen of the City of Madison. The plaintiff argues that the Circuit Court's decisions are entitled to full faith and credit pursuant to Title 28 U.S.C. § 1738.10 The plaintiff concludes by asking this court to grant summary judgment to him on the issue of the defendant's liability, and to hold a separate hearing on the matter of damages.

The defendants also seek summary judgment, claiming that the individual defendants, Mayor Mary Hawkins, Alderman Tim Johnson, and Alderman Lisa Clingan-Smith are entitled to legislative immunity in their respective individual capacities from the plaintiff's claims. Further, the City of Madison, the Mayor, and the Aldermen claim that the City of Madison and its officials did not act arbitrarily and capriciously when they raised several debatable issues with regard to the plaintiff's March 18, 1994, site plan and request for issuance of a building permit. These contested issues, say defendants, included the placement of water meters; the thirty-five foot height limitation; the failure to provide a subdivision plat; and the impact of additional traffic on State Highway 463. The defendants argue that the opinions and orders issued by the Circuit Court of Madison County, Mississippi, should not be given preclusive effect in the instant case; that the plaintiff's motion for partial summary judgment on the issue of liability should be denied; that the Mayor and Aldermen should be dismissed in both their official and individual capacities; and that summary judgment should be granted in favor of the City of Madison.

III. SUMMARY JUDGMENT
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3 practice notes
  • Hall v. State, Civil Action No. 12–00657–BAJ–RLB.
    • United States
    • United States District Courts. 5th Circuit. Middle District of Louisiana
    • September 30, 2013
    ...to absolute immunity, while non-legislative or administrative acts are only entitled to qualified immunity.” Bryan v. City of Madison, 130 F.Supp.2d 798, 806 (S.D.Miss.1999) (citing Hughes, 948 F.2d at 920). In Hughes, the United States Court of Appeals for the Fifth Circuit noted that two ......
  • Tembec, Inc. v. U.S., Slip Op. 07-28.
    • United States
    • U.S. Court of International Trade
    • February 28, 2007
    ...(footnote omitted); see also Rau v. Apple-Rio Mgmt. Co., Inc., 85 F.Supp.2d 1344, 1346 (N.D.Ga.1999); Bryan v. City of Madison, Miss., 130 F.Supp.2d 798, 805 (S.D.Miss.1999). Thus, vacatur of a judgment can be had without withdrawing the 3. The injunctions in West Fraser Mills Ltd. v. Unite......
  • Williams v. City Of Gulfport, CAUSE NO. 1:07CV906 LG-JMR
    • United States
    • U.S. District Court — Southern District of Mississippi
    • February 7, 2011
    ...to implement its own law correctly, nor does the Constitution insist that a local government be right." Bryan v. City of Madison, 130 F. Supp. 2d 798, 811 (S.D. Miss. 1999) (citations and quotation marks omitted). Because the Plaintiffs have failed to show the existence of material fact for......
3 cases
  • Hall v. State, Civil Action No. 12–00657–BAJ–RLB.
    • United States
    • United States District Courts. 5th Circuit. Middle District of Louisiana
    • September 30, 2013
    ...to absolute immunity, while non-legislative or administrative acts are only entitled to qualified immunity.” Bryan v. City of Madison, 130 F.Supp.2d 798, 806 (S.D.Miss.1999) (citing Hughes, 948 F.2d at 920). In Hughes, the United States Court of Appeals for the Fifth Circuit noted that two ......
  • Tembec, Inc. v. U.S., Slip Op. 07-28.
    • United States
    • U.S. Court of International Trade
    • February 28, 2007
    ...(footnote omitted); see also Rau v. Apple-Rio Mgmt. Co., Inc., 85 F.Supp.2d 1344, 1346 (N.D.Ga.1999); Bryan v. City of Madison, Miss., 130 F.Supp.2d 798, 805 (S.D.Miss.1999). Thus, vacatur of a judgment can be had without withdrawing the 3. The injunctions in West Fraser Mills Ltd. v. Unite......
  • Williams v. City Of Gulfport, CAUSE NO. 1:07CV906 LG-JMR
    • United States
    • U.S. District Court — Southern District of Mississippi
    • February 7, 2011
    ...to implement its own law correctly, nor does the Constitution insist that a local government be right." Bryan v. City of Madison, 130 F. Supp. 2d 798, 811 (S.D. Miss. 1999) (citations and quotation marks omitted). Because the Plaintiffs have failed to show the existence of material fact for......

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