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Alpert v. City of Biloxi

Court of Appeals of Mississippi

October 17, 2017

LEONARD ALPERT, IZABELLA ALPERT, AND THUY LAND PAWN SHOP, INC. APPELLANTS
v.
CITY OF BILOXI, MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 07/07/2016

         HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT HON. LAWRENCE PAUL BOURGEOIS JR. TRIAL JUDGE

          ATTORNEY FOR APPELLANTS: WAYNE L. HENGEN.

          ATTORNEYS FOR APPELLEE: DAVID A. WHEELER GERALD HENRY BLESSEY.

          BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.

          GRIFFIS, P.J.

         ¶1. Upon application by Boyd Gaming Corporation, the City of Biloxi adopted the Biloxi Planning Commission's approval of a requested right-of-way vacation and realignment of Fayard Street. Leonard Alpert, Izabella Alpert, and Thuy Land Pawn Shop (collectively "Alpert"), appealed the City's decision to the Harrison County Circuit Court. After a hearing, the circuit court upheld the City's decision. Alpert now appeals to this Court. We find no error and affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. Boyd, owner of Imperial Palace Casino and Resort, and Seymour Engineering submitted an application to the Planning Commission seeking to vacate and realign a portion of Fayard Street. The northern portion of Fayard Street functioned as a public right-of-way. Boyd sought to install and dedicate a new public right-of-way, which would realign Fayard Street with Bayview Avenue, a five-lane thoroughfare.

         ¶3. On August 6, 2015, the Planning Commission held a public hearing on Boyd's request. During the hearing, Boyd answered questions pertaining to pedestrian safety, utility easements, and the use of the proposed road.[1] The hearing was continued to allow Boyd an opportunity to meet with Coast Transit Authority regarding the location for a new bus stop.

         ¶4. The hearing recommenced on August 20, 2015. At that time, Boyd informed the Planning Commission that the realignment would result in: (1) a safer area for pedestrians, (2)better turning radius for large vehicles entering Bayview Avenue from Fayard Street, and (3)the pawn shop receiving fifteen feet of additional land. Alpert, the owner of the pawn shop, objected to the vacation and realignment. He asserted that approving the proposal would only benefit Boyd. Alpert claimed there was no justification for the request. Alpert also informed the Planning Commission that the pawn shop had been using Fayard Street for customer parking for the past fifteen years, and the realignment would essentially eliminate customer parking and their business.

         ¶5. During the public hearing, local residents and business owners voiced their support or opposition to the proposed vacation and realignment. The executive planner addressed the Planning Commission and stated that after a thorough review of Boyd's application, the staff had determined that the proposed vacation and realignment better addressed the intersection. The staff had determined that the change would provide more reasonable levels of safety. The Planning Commission supported the application; however, it preferred the addition of some type of traffic control mechanism at the intersection. Despite this preference, the Planning Commission voted, eight to four, to approve Boyd's application as submitted. Alpert timely appealed and requested a public hearing. The request was denied after it was determined that the matter was not appealable at the Planning Commission level.

         ¶6. On September 15, 2015, during a regularly scheduled meeting, the Biloxi City Council considered a resolution to approve Boyd's application. Boyd gave a presentation depicting the following improvements:

(1) the sidewalk placement to Bayview Avenue on the realigned Fayard Street, which was not possible under the current layout;
(2) a straight crosswalk rather than a diagonal crosswalk, which would improve the line of sight for left-hand turns and reduce distance and ...

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