OF JUDGMENT: 09/29/2017
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
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.
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.
We find that the Board of Supervisors' appeal was
untimely filed, and we therefore grant SCC's motion to
dismiss the appeal.
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.
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
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.
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; ...