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Lee v. City of Byram

Court of Appeals of Mississippi

May 21, 2019

SHARON LEE, HERBERT LEE JR., AND PERCY TOASTER APPELLANTS
v.
THE CITY OF BYRAM, MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 06/30/2017

          HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. FRANK G. VOLLOR Judge.

          ATTORNEY FOR APPELLANTS: JANE E. TUCKER

          ATTORNEYS FOR APPELLEE: JOHN PRESTON SCANLON JERRY L. MILLS

          BEFORE CARLTON, P.J., TINDELL AND McDONALD, JJ.

          TINDELL, J.

         ¶1. Sharon and Herbert Lee and Percy Toaster (collectively, the Appellants) appeal the judgment of the Hinds County Circuit Court, First Judicial District, which dismissed with prejudice their bill of exceptions seeking judicial review of a rezoning decision by the mayor and board of aldermen (the Board) of the City of Byram (the City). The Appellants raise the following issues: (1) the circuit court erroneously dismissed as untimely their appeal from the Board's decision; (2) clear and convincing evidence failed to support the rezoning; and (3) the rezoning resulted in illegal spot zoning.

         ¶2. Upon review, we find the Appellants timely appealed the Board's rezoning decision. We therefore reverse the circuit court's dismissal of the appeal and bill of exceptions as untimely, and we remand this case so the circuit court may consider the merits of the arguments raised in the Appellants' bill of exceptions. Because we reverse and remand on this ground, we decline to address the Appellants' remaining arguments.

         FACTS

         ¶3. On January 9, 2014, the Board approved Brett and Joni Huchins's application to rezone a small parcel of land on Siwell Road. The Hutchinses sought to rezone property located at 4149 Siwell Road from agricultural to neighborhood commercial to allow the construction of a dance studio. On January 17, 2014, the Appellants, who live near the rezoned parcel, filed a notice of appeal from the Board's decision. The Appellants also prepared a proposed bill of exceptions, which they attached as an exhibit to their notice of appeal. The Appellants delivered both documents to the city clerk with a letter asking that the clerk provide the bill of exceptions to the mayor for his review and signature and that the City provide the Appellants with copies of various specified documents for their appeal.

         ¶4. The Appellants stated in their proposed bill of exceptions that they incorporated by reference all proceedings conducted by the City and all documents filed with the City related to the rezoning application. After receiving all such documents and obtaining the mayor's signature, the Appellants asserted that they would file the bill of exceptions and its attached documents with the court clerk. On February 28, 2014, the City provided several of the requested documents to the Appellants. On March 7, 2014, the City provided the Appellants with the remaining requested documents.

         ¶5. The record reflects that the next filing in the matter occurred on September 25, 2015, when the City filed a motion to dismiss. The City argued that the Appellants failed to properly and timely file their bill of exceptions. The Appellants responded to the City's motion. In addition to their response, the Appellants filed a second bill of exceptions, this time with the circuit court. This second bill of exceptions was also unsigned by the mayor, and it recounted additional details about the matter that had occurred in the interim between the filing of the first and second bills of exceptions. The City subsequently filed a rebuttal in support of its motion to dismiss. As exhibits to its rebuttal, the City attached a certified copy of (1) the Board's January 9, 2014 meeting minutes; (2) the rezoning ordinance the Board adopted; (3) the notice of the public hearing before the Planning and Zoning Commission (the Commission) on the rezoning request; (4) the Commission's factual findings and written recommendation to the Board regarding the rezoning application; and (5) the Commission's meeting minutes.

         ¶6. Following a hearing on the City's motion to dismiss, the circuit court found the Appellants failed to timely file their bill of exceptions. The circuit court therefore dismissed with prejudice both the Appellants' notice of appeal and their bill of exceptions. The Appellants filed an unsuccessful motion for reconsideration. Aggrieved, they appeal.

         STANDARD ...


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