Sharon G. Lee v. City of Byram, Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CA-01649-COA
SHARON G. LEE AND HERBERT LEE, JR. APPELLANTS
v.
CITY OF BYRAM, MISSISSIPPI, MAYOR APPELLEES
RICHARD WHITE AND BOARD OF
ALDERMEN OF THE CITY
DATE OF JUDGMENT: 11/14/2016
TRIAL JUDGE: HON. HENRY L. LACKEY
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANTS: JANE E. TUCKER
EDWARD BLACKMON
HERBERT LEE JR.
ATTORNEYS FOR APPELLEES: JOHN PRESTON SCANLON
JERRY L. MILLS
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: REVERSED AND REMANDED: 08/28/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.
FAIR, J., FOR THE COURT:
¶1. Sharon and Herbert Lee filed a “Verified Complaint for Declaratory Relief, Injunctive
Relief, Damages and Other Relief, Including Declaring Invalid Zoning Ordinance . . . ,”
contending, among other things, they had not received the required notice that the City of
Byram intended to consider rezoning certain property located near their home. The Lees’
complaint was filed about ten months after the zoning decision, and the circuit court
ultimately dismissed the complaint after finding that it was not filed as an appeal from the
zoning decision within ten days, as required by statute. We hold that this was in error
because under the recent Mississippi Supreme Court decision City of Jackson v. Jordan, 202
So. 3d 199, 204 (¶14) (Miss. 2016), when the required notice is not given, an appeal is not
the exclusive remedy and the statutory time limit for appeals does not apply.
FACTS
¶2. The City of Byram incorporated in 2009 and adopted a comprehensive zoning plan
in 2011. At issue here is the zoning of several parcels on Siwell Road, in the north part of
town. 4101 Siwell Road is the site of a used-car dealership called “Hillcrest Motors.” The
site of Hillcrest Motors had been zoned commercial by the county, but it was zoned
residential in Byram’s new comprehensive plan. The parties agree this was a mistake, and
the Lees say they have no objection to rezoning the Hillcrest Motors site. The Hillcrest
Motors site was owned by Hillcrest Motors’ proprietors, Brett and Joni Hutchins. A larger,
eighty-seven-acre parcel to the south was owned by “Hillcrest Motors LLC” and zoned either
residential or agricultural in the Byram comprehensive plan.
¶3. The Lees contend that the City has repeatedly confused the two parcels, since the
Hutchinses own the site of Hillcrest Motors and Hillcrest Motors LLC owns the land to the
south. In 2012 the City set out to correct the mistaken zoning of the site of the dealership,
but the ordinance it passed identified the rezoned property only as “certain property located
on Siwell Road owned by Hillcrest Motors.” The Lees contend this language can only be
interpreted as referring to the eighty-seven-acre parcel, not the site of Hillcrest Motors as the
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City may have intended. Then, in 2013, the City rezoned a two-acre portion of the eighty-
seven acres, located at 4149 Siwell Road, where the Hutchinses were building a dance studio.
This property is across the street from the Lees’ home.
¶4. The City then moved to “correct” these rezonings due to a number of errors in the first
efforts; it re-rezoned the sites of the dealership and the dance studio in late 2013 and early
2014, respectively. The 2013 and 2014 rezonings of the dance-studio site are apparently
being contested by the Lees in separate, ongoing proceedings.
¶5. In 2015, the circuit court dismissed the Lees’ 2013 complaint—the one that is the
subject of this appeal—because it was not filed as a timely appeal from the 2012 zoning
decision. The City contends that this was correct, a point we reject because a timely appeal
was precluded by the City’s failure to publish proper notice. The City also contends that the
2013 and 2014 rezonings render the 2012 rezoning moot. Given the disconnect between the
City’s assertions as to what the 2012 ordinance did and what it actually says, we disagree on
that point as well, and so we reverse and remand for further proceedings.
DISCUSSION
1. Jurisdiction, Timeliness of Appeal, and Exclusive Remedy
¶6. The circuit court dismissed the Lees’ suit on the basis that it was not filed as a timely
appeal from the 2012 zoning decision. In doing so, the court relied on Mississippi Code
Annotated section 11-51-75 (Rev. 2012),1 which provided in relevant part that:
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The statute has since been superseded by legislation effective July 1, 2018.
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Any person aggrieved by a judgment or decision of the board of supervisors,
or municipal authorities of a city, town, or village, may appeal within ten (10)
days from the date of adjournment at which session the board of supervisors
or municipal authorities rendered such judgment or decision, and may embody
the facts, judgment and decision in a bill of exceptions which shall be signed
by the person acting as president of the board of supervisors or of the
municipal authorities.
¶7. Ordinarily, an appeal to circuit court under section 11-51-75 is an “exclusive remedy”
for a party aggrieved by the decision of a municipal authority. See, e.g., Malone v. Leake
Cty. Bd. of Sup’rs, 841 So. 2d 141, 145 (¶9) (Miss. 2003). But in Jordan, 202 So. 3d at 204
(¶14) (Miss. 2016), the Mississippi Supreme Court made it clear that “the appeal process of
Section 11-51-75 contemplates the aggrieved party receiving proper notice of the hearing.”
The supreme court noted its prior decision in Williams v. Walley, 295 So. 2d 286, 288 (Miss.
1974), where it had held that, when the required notice was not given, an appeal under
section 11-51-75 “would not have afforded [the plaintiff] adequate relief” and therefore “was
not the exclusive remedy under the circumstances.” Jordan, 202 So. 3d at 204 (¶11).
¶8. The City seems to concede that there were deficiencies in the published notice for the
2012 hearing before Byram’s Mayor and Board of Aldermen. Indeed, the published notice
that appears in the record lacks any mention of any of the parcels at issue. We conclude that
the notice was deficient, and appeal was not the exclusive remedy. Id. at 204 (¶14). The
Lees’ complaint should not have been dismissed for failure to timely appeal under section
11-51-75.
2. Mootness
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¶9. Next, we consider the City’s claim that the controversy is moot because of the 2014
rezoning of the dance-studio property. The issue here boils down to a dispute over what
property the 2012 ordinance rezoned; the ordinance stated that it was rezoning “certain
property located on Siwell Road owned by Hillcrest Motors.” The Lees contend that by its
own terms the 2012 zoning ordinance encompassed the eighty-seven-acre tract “owned by
Hillcrest Motors” on Siwell Road; the City asserts that the tract rezoned was the site of
Hillcrest Motors, a nearby (but non-adjacent) parcel owned by the proprietors of Hillcrest
Motors. (Emphasis added). The City points out that the rezoned property was—at least
sometimes—identified in the Zoning and Planning Commission documents as the “site” of
Hillcrest Motors. According to the City, the issue is moot because of the 2013 re-rezoning
of the Hillcrest Motors site and the 2014 re-rezoning of the two-acre portion of the eighty-
seven-acre tract that is the site of the dance studio.
¶10. It is apparent to us that there is a remaining issue as to the effect of the 2012 ordinance
because, on its face, the ordinance appears to refer to the property the Lees say it does.
Regardless of the City’s interpretation of the ordinance and assertions regarding its intent,
the ordinance itself controls. Byram’s Mayor and the Board of Aldermen, like any public
board, can only speak and act through its minutes. Wellness Inc. v. Pearl River County
Hosp., 178 So. 3d 1287, 1290 (¶9) (Miss. 2015). The controversy is not moot.
3. Failure to Prosecute
¶11. Finally, the City contends that the suit should have been dismissed for failure to
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prosecute. This claim is raised for the first time on appeal, and it is barred as a result. See
Anderson v. LaVere, 136 So. 3d 404, 410 (¶27) (Miss. 2014).
¶12. REVERSED AND REMANDED.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, WILSON,
GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.
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