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, DefendantsAppellants, 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
 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. 

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
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.
 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. 

 3Appellants 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. 

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

other property owners. 3

 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
 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. 

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
 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. 

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.
 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. 

 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.
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.