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Desoto County v. Standard Construction Company, Inc.

Court of Appeals of Mississippi

January 22, 2019

DESOTO COUNTY, MISSISSIPPI APPELLANT
v.
STANDARD CONSTRUCTION COMPANY, INC. APPELLEE

          DATE OF JUDGMENT: 09/29/2017

          DESOTO COUNTY CIRCUIT COURT HON. GERALD W. CHATHAM SR. TRIAL JUDGE.

          ATTORNEYS FOR APPELLANT: ROBERT E. QUIMBY ANTHONY E. NOWAK

          ATTORNEY FOR APPELLEE: WILLIAM P. MYERS

         EN BANC.

          CARLTON, P.J.

         ¶1. Standard Construction Company (SCC) applied for a conditional use permit to mine sand and gravel in DeSoto County, Mississippi. After the DeSoto County Board of Adjustments denied SCC's application, SCC appealed the decision to the DeSoto County Board of Supervisors. The Board of Supervisors held a public hearing on the matter and ultimately denied SCC's application. SCC then appealed to the DeSoto County Circuit Court. The circuit court entered an order and opinion reversing the Board of Supervisors' decision. The Board of Supervisors filed a motion for rehearing, which the circuit court denied.

         ¶2. The Board of Supervisors now appeals, arguing that the circuit court erred in finding that the Board's denial of SCC's application was arbitrary and capricious. On January 18, 2018, SCC filed a motion to dismiss the Board of Supervisors' appeal as untimely filed. The Mississippi Supreme Court passed the motion for consideration with the merits of the appeal.

         ¶3. We find that the Board of Supervisors' appeal was untimely filed, and we therefore grant SCC's motion to dismiss the appeal.

         FACTS

         ¶4. On February 11, 2016, SCC filed an application for a conditional use permit for a gravel-mining operation on property zoned "Agricultural-Residential." The DeSoto County Zoning Regulations provide that the extraction of sand and gravel therefrom is allowed only as a conditional use. Pursuant to Article XIV of the Regulations, entitled "Conditional Uses," landowners may be granted a right to conditional use with appropriate conditions and safeguards imposed to, among other things, conserve and protect property and property values in the surrounding neighborhood. The regulations state that use of the site for mining sand and gravel is not a permitted use; it is a conditional use. When considering an application for conditional use, the Board of Supervisors (on appeal from the Board of Adjustment) shall investigate all aspects of the application during a properly noticed public hearing. In doing so, the Board of Supervisors shall give particular regard to whether the application will substantially increase traffic hazards or congestion; substantially increase fire hazards; adversely affect the character of the neighborhood; adversely affect the general welfare of the county; overtax public utilities or community facilities; and conflict with the Comprehensive Plan. The regulations provide that the application shall be granted if, upon the above framework, the Board of Supervisors finds the county would benefit from the proposed use.

         ¶5. The Board of Adjustments held a hearing on SCC's application. After hearing testimony from both sides, the Board of Adjustments unanimously denied SCC's application on June 13, 2016. SCC appealed this decision to the Board of Supervisors.

         ¶6. On September 19, 2016, the Board of Supervisors held a public hearing on the matter. That same day, the Board of Supervisors voted to affirm the Board of Adjustments' decision denying SCC's application. SCC then filed its notice of appeal to the circuit court on September 27, 2016, pursuant to Mississippi Code Annotated section 11-51-75 (Rev. 2012).[1]

         ¶7. On September 29, 2017, the circuit court entered an order and opinion reversing the Board of Supervisors' decision denying SCC's application for a conditional use permit. The circuit court explained that after reviewing the record, including the transcript of the hearing, exhibits, and the Board meeting minutes, it found that the Board of Supervisors did not base its opinion on substantial evidence; ...


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