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City of Jackson v. Allen

Supreme Court of Mississippi, En Banc

February 1, 2018

CITY OF JACKSON, MISSISSIPPI
v.
BEN ALLEN, INDIVIDUALLY AND IN HIS CAPACITY AS PRESIDENT OF DOWNTOWN JACKSON PARTNERS, INC.

          DATE OF JUDGMENT: 04/26/2016

         HINDS COUNTY CIRCUIT COURT HON. WILLIAM A. GOWAN, JR. JUDGE

          SAMUEL L. BEGLEY JAMES RICHARD DAVIS, JR. MONICA DAVIS JOINER GAIL WRIGHT LOWERY TRIAL COURT ATTORNEYS

          JAMES RICHARD DAVIS, JR. MONICA DAVIS JOINER ATTORNEYS FOR APPELLANT

          SAMUEL L. BEGLEY ATTORNEY FOR APPELLEE

          COLEMAN, JUSTICE

         ¶1. The Jackson City Council passed an ordinance rezoning an approximately .3 acre parcel of property located at 530 South State Street, Jackson, Mississippi, 39201. Ben Allen, individually and in his capacity as President of Downtown Jackson Partners, Inc., filed a bill of exceptions in the Circuit Court of Hinds County, seeking reversal of the City Council's decision to rezone the property. The circuit court reversed the Jackson City Council's decision. The City appeals from the circuit court's order raising the following issues:

I. Whether the trial court had jurisdiction to overrule the City Council's decision because no signed bill of exceptions had been filed as required by Mississippi Code Section 11-51-75.
II. Whether the trial court erred by refusing to dismiss the case for Allen's lack of standing.
III. Whether the owner and lessor of the property are necessary parties to the appeal on the basis of basic due process requirements.

         FACTUAL BACKGROUND

         ¶2. On July 2, 2015, Marcellus Hogan filed an application requesting that the subject property be rezoned from "OCGD (Old Capital Green) Sub District 2 to C-3 (General) Commercial District" for the purpose of allowing the operation of a used auto sales business on the premises. The application for rezoning was signed by Marcellus Hogan and the property owner, James L. Miles. The City refers to Marcellus Hogan as both the lessor and lessee of the property.[1] Maurice Hogan was listed on the application as an individual who would be representing the applicant, Marcellus Hogan.

         ¶3. On July 27, 2015, the City zoning administrator prepared a report to the City of Jackson Planning Board concerning the property. The zoning administrator recommended denying the rezoning request. On August 25, 2015, the Planning Board held a meeting and considered Marcellus Hogan's request to rezone the property. Marcellus Hogan, James Miles, and Maurice Hogan spoke in support of the rezoning request. The Planning Board denied the rezoning request in a vote of nine to two, with four members absent. The Planning Board found that the criteria for granting a rezoning had not been met. On September 4, 2015, James Miles submitted a written notice of appeal requesting that the City Council review the Planning Board's decision.

         ¶4. On September 21, 2015, the City Council convened for a meeting and held a hearing to consider the rezoning request. The Planning Board staff appeared and presented facts and findings to the City Council. The Planning Board staff recommended that the City Council deny the rezoning request. No one appeared or spoke in favor of the request to rezone the property. At the conclusion of the hearing, the City granted the rezoning request, finding that the criteria for granting a rezoning had been met. Four of the seven City Council members were present at the hearing. The City Council voted to grant the rezoning request in a vote of two to one, with one member abstaining. The city councilman who voted to abstain due to a conflict of interest stated that he would remain in the meeting so that, in his opinion, there would be a quorum. The circuit court took judicial notice of the City Council hearing and minutes. There is no dispute about what transpired at the City Council meeting, namely, the number of City Council members who were present and voted.

         ¶5. On October 1, 2015, Ben Allen appeared for the first time by filing a notice of appeal and a bill of exceptions under Mississippi Code Section 11-51-75 in the circuit court. In Allen's bill of exceptions, he stated that he had standing to file a bill of exceptions as a resident of the City of Jackson and President of Downtown Jackson Partners. Allen stated that Downtown Jackson Partners is a Mississippi nonprofit corporation designated as the district management group for the Downtown Jackson Business Improvement District under the district plan adopted by the Downtown Jackson Business Improvement District property owners pursuant to the Business Improvement District Act, Mississippi Code Section 21-43-101 through 21-43-133. Allen also stated that the subject property is located in the Downtown Jackson Business Improvement District and that Downtown Jackson Partners has been afforded certain responsibilities regarding the Old Capital Green Mixed Use District in which the property is situated.

         ¶6. Allen claimed that neither the applicant nor the property owner appeared at the hearing. Allen also claimed that no one appeared or spoke in favor of the application for rezoning at the hearing. Allen requested that the circuit court reverse the City Council's rezoning decision because there was not substantial evidence in the record to support the decision; the decision was arbitrary and capricious; an insufficient number of council members lawfully participated to constitute a quorum; the application was unlawful because it was not filed in the name of the landowner. Allen alleged the same assignments of error in his notice of appeal.

         ¶7. The bill of exceptions contained an unsigned certificate of the mayor. On December 11, 2015, Allen filed a motion to stay implementation of the rezoning ordinance. Allen attached what constitutes a significant portion of the record on appeal to the motion, which includes the initial application for rezoning; zoning administrator's report; warranty deed; minutes of the Planning Board meeting; a notice of the Planning Board decision; James Miles's written appeal of the Planning Board's decision; and a notice of the City Council decision.

         ¶8. On January 23, 2016, Allen filed a motion to compel the City to sign an amended bill of exceptions and to compile the record due to an apparent disagreement regarding the substance of the bill of exceptions and the record. Alternatively, Allen argued that "if the City [did] not agree with the facts set forth in the [a]mended [b]ill of [e]xceptions, [it should] point out needed corrections and either have the City Council President sign the bill as corrected, or tender the corrections to [Allen] for submission of another amended bill." Allen relied on the requirements set out in Section 11-51-75 and Wilkinson County Board of Supervisors v. Quality Farms, Inc., 767 So.2d 1007 (Miss. 2000), in support of his motion.

         ¶9. Allen claimed that "[s]ince October 22, 2015, the undersigned attorney has communicated with the City Attorney's office seeking to cause the City to act on the bill of exceptions, either by signing it as is or correcting it, and to prepare the record." Allen attached a proposed amended bill of exceptions and proposed certificate of the President of the City Council to the motion.

         ¶10. According to Allen's motion to compel, the City requested Allen to supply an outline of the proposed record to be compiled by the City to be used in the appeal. In response, Allen incorporated an "outline of the proposed record" (list of exhibits) in his amended bill of exceptions. The primary difference between the initial bill of exceptions and the amended bill of exceptions was the addition of the exhibit list. Also, the initial bill of exceptions identified the mayor as the official authorized to sign the bill of exceptions while the amended bill of exceptions identified the City Council president as the official authorized to sign. The amended bill of exceptions also contained an added request for the City to produce all documents, ordinances, resolutions, and transcripts related to the matter.

         ¶11. For reasons not apparent in the record, the amended bill of exceptions was never signed by the City Council president. The City never responded to Allen's motion to compel. Instead, on January 29, 2016, the City filed a motion to dismiss Allen's appeal. The City argued that Allen lacked standing and the case should be dismissed for failure to join necessary and indispensable parties under Rule 19(a)(2) of the Mississippi Rules of Civil Procedure. The City argued that the property owner and lessor were necessary and indispensable parties. The City also argued that Allen lacked standing to file a bill of exceptions as the Chief Executive Officer of Downtown Jackson Partners. The City argued that Downtown Jackson Partners was not a "person aggrieved" under Section 11-51-75 because it does not own, nor does it have a interest in, property which is or may be affected by the decision of the City Council to rezone the subject property.

         ¶12. On February 12, 2016, Allen filed a response to the City's motion to dismiss. Allen attached an affidavit in support of his position that he had standing to file a bill of exceptions. In the affidavit, Allen explained his role with Downtown Jackson Partners. Allen also explained Downtown Jackson Partners's role and interest related to the property at issue. On February 24, 2016, Allen filed a supplemental affidavit stating that he is a resident citizen of Jackson. Allen also stated that he owns property in Jackson. He further stated that he is a beneficiary of a trust that owns property in Jackson.

         ¶13. On February 16, 2016, Allen filed a notice of hearing on the motion to stay; motion to compel and to compile the record; and the City's motion to dismiss. The hearing was scheduled for April 20, 2016. The record on appeal contains no transcript of the scheduled hearing and no indication that a hearing actually was held.

         The Circuit Court's Opinion and Order

         ¶14. On April 26, 2016, the circuit court entered an opinion and order. The circuit court denied the City's motion to dismiss. The circuit court also found that Allen had standing to appeal as the President of Downtown Jackson Partners, representing the interests of the property owners in the Downtown Jackson Business Improvement District. The circuit court recognized that Subsection 708.03.04 of the Old Capitol Green Mixed Use District section of the City's zoning ordinance provides a direct role for Downtown Jackson Partners in regulating the development of the district. The circuit court also found that successful applicants for rezoning the property were not necessary, indispensable or proper parties, to be aligned as co-appellees with the City.

         ¶15. The circuit court took judicial notice of the City Council's meeting on September 21, 2015, based on the minutes and video of the meeting available on the City's website. The circuit court found that the vote of two to one, with one abstaining from voting, did not constitute a majority of the quorum under Mississippi Code Section 21-8-11. As such, the circuit court reversed the decision of the City Council and found that the minutes of the council meeting should have reflected that the city councilman's motion to grant the rezoning request failed for lack of majority. The circuit court directed that its opinion and order be supplied to the City Council at the next regular meeting.

         ¶16. On May 9, 2016, the City filed a notice of appeal. The City did not address whether the vote constituted a majority of a quorum. Although the circuit court based its order to reverse the City Council's decision on the lack of a majority vote of a quorum, the City limits its argument on appeal to (1) whether the circuit court had jurisdiction; (2) whether Allen has standing; and (3) whether the property owner and lessor are necessary and indispensable parties.

         STANDARD OF REVIEW

         ¶17. The Court reviews jurisdictional issues de novo. Horne v. Mobile Area Water & Sewer Sys., 897 So.2d 972, 975 (¶ 7) (Miss. 2004). "For questions of law, a municipal board's decision is reviewed de novo." Nelson v. City of Horn Lake ex rel. Bd. of Aldermen, 968 So.2d 938, 942 (¶ 10) (Miss. 2007). "A de novo standard is also applied to issues of statutory interpretation." Id.

         ¶18. Because the circuit court sits as an appellate court in zoning cases, we must directly examine the City's decisions. City of Ocean Springs v. Psycamore, LLC, 124 So.3d 658, 661 (¶ 14) (Miss. 2013). Zoning decisions will not be set aside unless clearly shown to be arbitrary, capricious, discriminatory, illegal, or without substantial evidence. Drews v. City of Hattiesburg, 904 So.2d 138, 140 (¶ 5) (Miss. 2005).

         ¶19. The issue of standing is a question of law, which the Court reviews de novo. Bennett v. Bd. of Supervisors of Pearl River Cty., 987 So.2d 984, 986 (¶ 7) (Miss. 2008). Our standard of review for joinder issues is abuse of discretion. Illinois Cent. R.R. Co. v. Gregory, 912 So.2d 829, 833 (¶ 5) (Miss. 2005).

         DISCUSSION

         I. Whether the circuit court had jurisdiction.

         ¶20. It is undisputed that counsel for Allen filed an unsigned bill of exceptions in the circuit court. It also is undisputed that counsel for Allen presented a bill of exceptions and amended bill of exceptions to the City to have the president of the municipal authority sign them, but the City, for whatever reason, refused.

         ¶21. On appeal, the City argues for the first time that the circuit court lacked subject matter jurisdiction because "no proper and signed" bill of exceptions was filed as required by Section 11-51-75. The City claims that Allen's failure to file a valid bill of exceptions deprived the circuit court of subject matter jurisdiction. Although the City did not raise the argument that the circuit court lacked jurisdiction due to an improper and unsigned bill of exceptions in the circuit court, "[t]he question of subject-matter jurisdiction may be raised at any time." B.A.D. v. Finnegan, 82 So.3d 608, 614 (¶ 23) (Miss. 2012).

         ¶22. During oral argument of the present matter, the parties argued the issue of whether certain requirements contained in Mississippi Code Section 11-51-75 were jurisdictional or procedural. The Court ordered supplemental briefing addressing the constitutionality of Section 11-51-75. The Court directed the parties to address the following issues:

(1) Whether the requirements that follow Section 11-51-75's language, "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, " are jurisdictional or procedural.
(2)Whether the signature of the president of the municipal authorities on the bill of exceptions as required by Section 11-51-75 is jurisdictional or procedural.
(3) If the Court determines that the statute or its requirements are procedural, how should the Court proceed in light of the Court's decision in Newell v. State, 308 So.2d 71 (Miss. 1975), and its progeny?

         ¶23. The Court also notified and afforded the Attorney General of Mississippi an opportunity to file a brief addressing the issues because the constitutionality of Section 11-51-75 is at issue. The parties and the Attorney General submitted briefs addressing the issues.

         ¶24. Because the three issues regarding the constitutionality of Section 11-51-75 are intertwined, we take the opportunity to address the three issues as a whole in single, comprehensive fashion, beginning with the origin of the bill of exceptions in our State. The need for a comprehensive analysis seems necessary in light of the uncertainty among practitioners who regularly use the bill of exceptions as part of their practice and due to the Court's less than clear precedent. Moreover, an identical issue relating to the signature requirement of bills of exceptions currently is pending before the Court in Tunica Board of Supervisors v. HWCC-Tunica, LLC, No. 2015-CA-01645-SCT.

         ¶25. The bill of exceptions is a vehicle for appeals that existed at the time Mississippi became a state. It was the means for appealing lower court decisions for more than half of Mississippi's 200-year history. It is time to revisit some of the decisions that have obscured what was once an oft-used and well-understood vehicle for appeals and give clarity to those whose practice of law and work on the bench requires them to work with the bill of ...


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