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Lee v. City of Byram

Court of Appeals of Mississippi

August 28, 2018

SHARON G. LEE AND HERBERT LEE, JR. APPELLANTS
v.
CITY OF BYRAM, MISSISSIPPI, MAYOR RICHARD WHITE AND BOARD OF ALDERMEN OF THE CITY APPELLEES

          DATE OF JUDGMENT: 11/14/2016

          HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. HENRY L. LACKEY TRIAL JUDGE

          ATTORNEYS FOR APPELLANTS: JANE E. TUCKER EDWARD BLACKMON HERBERT LEE JR.

          ATTORNEYS FOR APPELLEES: JOHN PRESTON SCANLON JERRY L. MILLS

          BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.

          FAIR, J.

         ¶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 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 ...


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