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Gallagher v. City of Waveland

Court of Appeals of Mississippi

May 19, 2015

CHARLES GALLAGHER AND ANITA GALLAGHER APPELLANTS
v.
CITY OF WAVELAND, MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 01/10/2013

HON. ROGER T. CLARK HANCOCK COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANTS: CHARLES GALLAGHER (PRO SE) ANITA GALLAGHER (PRO SE)

ATTORNEY FOR APPELLEE: GARY MCKAY YARBOROUGH JR.

EN BANC.

GRIFFIS, P.J.

¶1. Charles and Anita Gallagher appeal the ruling of the Hancock County Circuit Court that affirmed the decision of the City of Waveland to approve a proposed preliminary plat for a subdivision. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. In 2010, KBM LLC submitted a preliminary plat for a planned subdivision in Waveland, Mississippi. KBM intended to create a seventeen-lot subdivision on an area of land between Mollere Drive and Central Avenue.

¶3. KBM submitted the plan to the Planning and Zoning Board requesting approval of the subdivision, an extension of the cul-de-sac variance from 600 feet to 1, 213 feet, and approval of an extended construction time from one year to five years.

¶4. The planning board approved KBM's requests, except the planning board allowed for a two year construction-time extension rather than the requested five years, and recommended approval of the preliminary plat to the City's Board of Aldermen (the "Board").

¶5. On May 24, 2010, the Board held a public hearing regarding final approval of KBM's preliminary plat. The Gallaghers, along with others who lived along Mollere Drive, attended the hearing and opposed final approval of the preliminary plat until KBM and the City provided further information.

¶6. The Gallaghers' primarily objected to a change from KBM's initial plan. KBM originally placed the entrance to the proposed subdivision on one side of the land, which led onto Central Avenue, but changed the entrance to Mollere Drive. On June 1, 2010, the Board approved the preliminary plat with the entrance to the subdivision on Mollere Drive.

¶7. On June 11, 2010, the Gallaghers and others residents on Mollere Drive[1] filed a notice of appeal and a proposed bill of exceptions in the Circuit Court of Hancock County. The Gallaghers submitted a motion for a writ of mandamus and motion to compel in order to get certain documents from the City and to get the City to either sign their proposed bill of exceptions or agree to an amended version to continue with the appeals process. The Gallaghers submitted an amended bill of exceptions to the circuit court without agreement from the City.

¶8. On March 13, 2011, the City filed its motion to dismiss and to strike the Gallaghers' motion for a writ of mandamus. The circuit court issued an order on March 28, 2012, which dismissed the City's motions and required the City and the Gallaghers to submit an agreed bill of exceptions within thirty days of the order.

¶9. The parties, however, could not agree. The City submitted its bill of exceptions on April 27, 2012. The Gallaghers followed with a second amended bill of exceptions on April 30, 2012.

¶10. The circuit court signed an agreed order on May 3, 2012, to extend the time for the parties to agree on a bill of exceptions. However, on May 17, 2012, the City submitted a motion to declare the City's bill of exceptions as the record and a motion to strike the Gallaghers' bills of exceptions. The circuit court, on June 18, 2012, issued an order, which adopted the City's bill of exceptions as the record.

¶11. The circuit court affirmed the decision of the City and Board on January 11, 2013. The Gallaghers argue on appeal that (1) the bill of exceptions adopted by the circuit court was inadequate; (2) the Board's approval of the preliminary plat was arbitrary and capricious; (3) the Board improperly rezoned two residential lots; (4) the Board improperly approved a deficient proposed preliminary plat; and (5) the Board's decision deprived the Gallaghers of their statutory and constitutional due-process rights.

ANALYSIS

I. Whether this Court has subject-matter jurisdiction to hear the merits of this case.

¶12. There are two issues about this Court's jurisdiction over this appeal. First, as is often the case in appeals such as this, the preparation and production of a record, i.e., the bill of exceptions, created a controversy. The Gallaghers maintain that the bill of exceptions adopted by the circuit court omitted several documents that require review by this Court. Second, the City argues that the Gallaghers failed to preserve any issues in this appeal when the notice of appeal omitted a statement of issues.

A. The Bill of Exceptions

¶13. Though neither the Gallaghers nor the City argues this Court lacks jurisdiction regarding the bill of exceptions, "[this Court] must be constantly aware of questions of [its] jurisdiction to proceed and must be prepared to decide a question pertaining to jurisdiction at any time, even if the court must raise the issue on its own motion." McKee v. City of Starkville, 97 So.3d 97, 100-01 (¶¶10-11) (Miss. Ct. App. 2012) (quoting Dunaway v. Dunaway, 749 So.2d 1112, 1120 (¶25) (Miss. Ct. App. 1999)).

¶14. Mississippi Code Annotated section 11-51-75 (Rev. 2012) mandates that an appeal from a board decision occur "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 . . . ."

¶15. "The bill of exceptions serves as the record on appeal, and the circuit court may only consider the case as made by the bill of exceptions." McKee, 97 So.3d at 100 (¶8) (quoting Wilkinson Cnty. Bd. of Sup'rs v. Quality Farms Inc., 767 So.2d 1007, 1011 (¶11) (Miss. 2000)). "[A] proper bill of exceptions on appeal is necessary to confer jurisdiction on the appellate court." Wilkinson Cnty. Bd. of Sup'rs, 767 So.2d at 1012 (ΒΆ14) (citation omitted). Further, "[a]ppellate review of an agency's decision is limited to the record and the ...


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