Court: Court of Appeals of Mississippi; August 7, 2012; Mississippi; State Appellate Court
The motion for rehearing is denied, and a new opinion replaces the prior one. In 2008, George C. McKee sought to rezone 0.75 acres of property in Starkville, Mississippi, from R-2 (single family/duplex) to R-5 (multi-family/high-density). The City’s Board of Aldermen denied the request despite a unanimous recommendation for approval from the Planning Commission, which cited a change in neighborhood character and a need for rental housing for the student population at Mississippi State University. McKee appealed the denial to the Oktibbeha County Circuit Court, which upheld the Board's decision. McKee contended that his due process rights were violated due to a lack of notice regarding the Board meeting and that the circuit court erred in affirming the Board's decision.
The court found that McKee's due process rights were indeed violated due to the failure of the Board to notify him about the meeting where his application was denied. Consequently, the circuit court’s judgment is reversed, and the case is remanded to the Board for a properly noticed hearing. Since the due process issue is decisive, the court did not address McKee’s argument regarding the circuit court's finding on the substantiality of the evidence supporting the Board's decision.
Additionally, it is noted that McKee's bill of exceptions was not signed by the City’s mayor, violating Mississippi Code Annotated section 11-51-75. The City submitted its own bill of exceptions, which was signed by the mayor, and contended that only its bill complied with statutory requirements. The legal standard for overturning a zoning board's decision requires clear evidence of arbitrary or illegal action, and the decision must not be disturbed if the issue is "fairly debatable."
Section 11-51-75 allows for an appeal from decisions made by boards of supervisors or municipal authorities through a bill of exceptions, which serves as the appeal record. The circuit court is restricted to considering only what is presented in the bill of exceptions. The Mississippi Supreme Court stipulates that an official cannot arbitrarily refuse to sign a bill of exceptions but must indicate any perceived inaccuracies and allow for amendments. A complete and accurate bill of exceptions is vital; omission of key facts can render it fatally defective, preventing the court from acting intelligently. A properly filed bill of exceptions is essential for appellate jurisdiction.
In this case, McKee’s bill of exceptions lacked the mayor's signature and did not meet procedural requirements. The City also failed to comply by submitting its own bill instead of correcting McKee’s. Although neither party raised jurisdictional issues, courts must always consider their jurisdiction. Despite procedural failures, the bills filed contained necessary facts for the court to act. The court declined to dismiss the case for lack of subject matter jurisdiction, referencing past cases where similar situations were addressed. However, this decision does not signify abandonment of the procedural requirements established in Wilkinson, as a lack of a proper record would have led to dismissal.
McKee claims the Board violated his due process rights by not notifying him of the meeting that denied his rezoning application. The City argues that under Mississippi Code Annotated 17-1-17, McKee was not entitled to notice because the Planning Commission had recommended approval, implying he was not an aggrieved party. However, the statute requires notice of a public hearing for any party whose request is considered, regardless of the Planning Commission's recommendation. The court highlighted that the Board is not obligated to follow the Planning Commission's recommendations and can deny applications based on substantial evidence. Therefore, since McKee was not notified of the hearing where his application was denied, he was denied due process. The circuit court's judgment is reversed, and the case is remanded to the Board for a properly noticed hearing on McKee’s rezoning request. Costs of the appeal are assessed to the appellee. Several justices concurred, while others did not participate.
Section 11-51-75 outlines the appeal process for individuals aggrieved by decisions made by a board of supervisors or municipal authorities. Affected parties have ten days from the adjournment date of the session in which the decision was made to file an appeal. They must prepare a bill of exceptions detailing the facts and the decision, which is to be signed by the presiding officer of the board or municipal authorities. The clerk is responsible for promptly transmitting this bill to the circuit court, which will review the case as an appellate court, with the authority to affirm or reverse the original judgment. McKee contests certain aspects of the City’s bill of exceptions, specifically that it inaccurately states the Board unanimously denied his application when the vote was 5-2 against approval, and that it incorrectly indicates he filed an appeal following a favorable recommendation from the Planning Commission. Nonetheless, these discrepancies are deemed immaterial to the appeal's outcome.
