IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI BRIEF OF CITY OF GULFPORT, MISSISSIPPI, ET AL., APPELLANTS

Transcription

1 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI GREGORY McHUGH, ET AL. PLAINTIFFS/APPELLANTS VERSUS CAUSE NO CA MAYOR BRENT WARR, IN HIS OFFICIAL CAPACITY ONLY, and THE CITY COUNCIL OF GULFPORT, MISSISSIPPI DEFENDANTS/APPELLEES BRIEF OF CITY OF GULFPORT, MISSISSIPPI, ET AL., APPELLANTS MARGARET MU~ Mississippi Bar... Post Office Box 1780 Gulfport, Mississippi Telephone Facsimile Attorney for the City of Gulfport, Mississippl Appellee

2 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI GREGORY McHUGH, ET AL. PLAINTIFFS/APPELLANTS VERSUS CAUSE NO CA MAYOR BRENT WARR, IN HIS OFFICIAL CAPACITY ONLY, and THE CITY COUNCIL OF GULFPORT, MISSISSIPPI DEFENDANTS/APPELLEES CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the judges of this court may evaluate possible disqualification or recusal. 1. Gregory and Tammy McHugh - Appellants 2. Mary Batchelor - Appellant 3. Jim Batchelor- Appellant 4. Mary L. Mohler - Appellant 5. James Athanaelos - Appellant 6. Patricia A. Drake - Appellant 7. Dr. Geddes B. Flagg and Nona McDonnell Flagg - Appellants 8. Janice Toon Norman and Bruce Norman - Appellants 9. Betty Toon Collins and Frank Collins - Appellants 10. Betty Toon Collins, Esq., of Wise Carter Caraway and Child, PS - Counsel for Appellants 11. Frank Collins, Esq. - Counsel for Appellants 12. Michael Prestia, Esq. - Counsel for Appellants 13. City of Gulfport, Mississippi - Appellee 14. Gulfport City Council- Appellees 15. Mayor Brent Warr - Appellee 16. Margaret Murdock, Esq., of the City Attorney's Office of the City of Gulfport - Counsel for City of Gulfport, Appellee

3 RESPECTFULLY SUBMITTED, this the 1!:L day of O!lo}wL,2008. CITY OF GULFPORT, MISSISSIPPI, Appellee BY: A~~ MARG E~ Mississippi Bar ~ Post Office Box 1780 Gulfport, Mississippi Telephone Facsimile mmurdock@ci.gulfport.ms.us Attorney for the City of Gulfport, Mississippi, Appellee ii

4 TABLE OF CONTENTS Table of Contents... iii Table of Cases... iv Statement of the Issues... ~... 1 Statement of the Case... 2 Nature of the Case, Course of Proceedings and Disposition in Court Below... 2 Statement of Facts....4 Summary of the Argument... 5 Argument... 6 STANDARD OF REVIEW... 6 WHETHER AMENDMENT TO INTERIOR LOT LINES GIVE RISE TO THE APPLICABILITY OF (4), WHEREBY OBJECTING PARTIES ARE REQUIRED TO AGREE IN WRITING TO THE VACATION OR ALTERATION OF A PLAT PRIOR TO THE CITY COUNCIL PROCEEDING WITH A RESUBDIVISION?... 6 IN THE ALTERNATIVE, SHOULD THE COURT FIND THAT AMENDMENTS TO INTERIOR LOT LINES DO GIVE RISE TO THE APPLICABILITY OF (4), WERE THE OBJECTING PARTIES REQUIRED TO AGREE IN WRITING TO THE VACATION OR ALTERATION PRIOR TO THE CITY COUNCIL PROCEEDING?... 8 Conclusion Certificate of Filing and Service iii

5 TABLE OF AUTHORITIES CASE LAW Bailey v. Estate of Kemp, 955 So. 2d 777 (Miss. 2007)... "... 6 Blackwell v. Miss. Bd. of Animal Health, 784 So. 2d 996 (Miss. App. 2001) ""... 8 Board of Law Enforcement Officer Standards & Training v. Butler, 672 So. 2d 1196 (Miss. 1996)... "... "... ".. "... 6 COR Developments, LLC, et al.. v. College Hill Heights Homeowners, LLC 973 So. 2d 273 (Miss. App. 2008)... "... "... "... "... 6, 7, 8 Hearne v. City of Brookhaven, 822 So. 2d 999 (Miss. App. 2002).. "... 6 Hooks v. George County, 748 So. 2d 678 (Miss. 1999)... "... 6 Johnson v. Ferg uson, 435 So. 2d 1191 (Miss. 1983)... 6 Mayor and Board of Aldermen of the Town of Prentiss, 874 So. 2d 962 (Miss. 2004)... 6 STATUTES Miss. Code Ann., (4)... "... 1,6,7,8,10 iv

6 STATEMENT OF THE ISSUES PRESENTED FOR REVIEW WHETHER AMENDMENT TO INTERIOR LOT LINES GIVE RISE TO THE APPLICABILITY OF (4), WHEREBY OBJECTING PARTIES ARE REQUIRED TO AGREE IN WRITING TO THE VACATION OR ALTERATION OF A PLAT PRIOR TO THE CITY COUNCIL PROCEEDING WITH A RESUBDIVISION? IN THE ALTERNATIVE, SHOULD THE COURT FIND THAT AMENDMENTS TO INTERIOR LOT LINES GIVE RISE TO THE APPLICABILITY OF (4), WERE THE OBJECTING PARTIES REQUIRED TO AGREE IN WRITING TO THE VACATION OR ALTERATION PRIOR TO THE CITY COUNCIL PROCEEDING?

7 STATEMENT OF THE CASE A. NATURE OF THE CASE, PROCEEDINGS AND DISPOSITION IN THE COURT BELOW At the core of the present appeal is an application for a resubdivision filed by Charles L. and Denise R. Hubbard (hereinafter "the Hubbards"), with the City of Gulfport, Mississippi (hereinafter "the City" or "the City of Gulfport"). On July 2, 2007, Charles L. Hubbard filed an application for a "RESUBDIVSION" with the Planning Division of the Department of Urban Development of the City of Gulfport. (Exhibit 6-0) 1 The multi-page application involved property located in Broadacres Subdivision on Broadmoor Place in Gulfport which is also identified by its Parcel Number of 0811A (hereinafter "the subject property"). (ld.) The Hubbards's application requested the resubdivision of the subject property from one "parcel" into two separate "parcels". (ld.) In accord with the City's Ordinance pertaining to subdivisions (Exhibit 4), a public hearing before the Gulfport City Planning Commission was scheduled and noticed for and held on August 23; (Exhibit 7, Exhibit 6-E) During the hearing, no one voiced objection to the application; Mr. Hubbard represented the Hubbards and noted that he wanted "to resubdivide my property so it will be more in keeping with the neighborhood and building and house on it." (Exhibit 6-E, p. 6) The Hubbards real estate agent (and neighbor), David Jackson, also spoke on behalf of the request. He noted that "almost all of the parcels in that area are smaller than Mr. Hubbard's lot would be split in half." (ld. at p. 7) Jackson further noted that if the lot is split in half, it would still be over a 2

8 quarter acre, larger than most of the lots in the neighborhood and would fit "into the neighborhood better sized lot if split in half." (Id.) The "staff recommendation" of the Planning Division of the City's Department of Urban Development was to recommend approval of the request for resubdivision subject to all applicable codes and ordinances and subject to Notes 1 and 2. (Id. at p. 8 and Exhibit 6-C) A motion to accept the staffs recommendation was duly made and seconded and carried unanimously. (Exhibit 6-E, p. 8) Because a resubdivision may only be granted upon approval of the City Council, a public hearing before the City Council was scheduled and noticed for and held on October 2,2007. (Exhibit 6-F, Exhibit 3) At the hearing, Mr. Hubbard spoke in favor of the request (Exhibit 3, pp. 9-11), and Phil Shaw and Greg McHugh spoke against the request. (Exhibit 3, pp. 2-6, 8-9). After hearing from citizens in support of and against the appeal, the City Council, on motion by Councilwoman Libby Roland "to deny the resubdivision" (Exhibit 3, p. 6), voted 5-1 to approve the motion which resulted in the request for resubdivision being denied. Thereafter, a motion to reconsider the matter was brought before the City Council on or about October 16, (Exhibit 5) At this second hearing on the request to resubdivide, Mr. Jackson and Mr. Hubbard spoke in favor of the request, and Phil Shaw and Greg McHugh spoke against the request. For the first time was Mr. Shaw's claim of lack of notice of the planning commission hearing of August 23, 2007, raised. (Exhibit 5, p. 9) Councilwoman Roland's prior motion to deny the request, upon reconsideration, 1 References to Exhibits are references to the Exhibits to the Bill of Exceptions filed in this matter. The Bill of Exceptions is included among the appeal record submitted to the Court by the Circuit Court of Harrison County and included in the Record Excerpts as No.3. 3

9 failed. A new motion, this one by Councilwoman Barbara Nalley, to approve the requested resubdivision passed. (Exhibit 5, p. 17) Thereafter, on or about October 26, 2007, various citizens, by and through their attorneys, timely filed two Bills of Exceptions. The two Bills of Exceptions were, by agreement of the parties, consolidated into cause number A After briefs were filed with the Circuit Court of Harrison County, and with the agreement of the parties to forego oral argument, Judge Roger Clark decided the case on the briefs and entered his order reversing the decision of the Gulfport City Council on January 19, The City of Gulfport timely appealed to this Court. B. STATEMENT OF THE FACTS RELEVANT TO THE ISSUES PRESENTED FOR REVIEW Given the procedural nature of the present appeal, the most relevant facts are contained in the argument portion of this brief. For the sake of brevity and to avoid unnecessary repetition, those facts will not be reiterated here. 4

10 SUMMARY OF THE ARGUMENT The Gulfport City Council is fully vested with the authority to consider and decide a request to a resubdivide a lot contained in a subdivision. The Council's decision to resubdivide the Hubbard lot was in accord with the law and all ordinances and statutes governing such process. As such the Council's decision of October 16, 2007,should not be disturbed on appeal. Appellants various arguments are without merit. The City of Gulfport respectfully urges that the October 16, 2007, decision of the Gulfport City Council be affirmeei. 5

11 ARGUMENT Applicable Standards of Review It is well established that "a reviewing court subjects [City Council] decisions to the same standard as is applied to administrative agency adjudicative decisions." Mayor and Board of Aldermen of the Town of Prentiss, 874 SO.2d 962, 964 (Miss. 2004) citing Hooks v. George County, 748 So.2d 678, 680 (Miss. 1999); Hearne v. City of Brookhaven, 822 SO.2d 999, 1002 (Miss. App. 2002). The applicable standard of review, therefore, is this: "[t]he decision of an administrative agency is not to be disturbed unless the agency order was unsupported by substantial evidence; was arbitrary or capricious; was beyond the agency's scope or powers or violated the constitution or statutory rights of the aggrieved party." Board of Law Enforcement Officer Standards & Training v. Bulter, 672 SO.2d 1196 (Miss. 1996). "Substantial evidence, which would support an administrative decision is 'such relevant evidence as reasonable minds might accept as adequate to support a conclusion' or to put it simply, more than a 'mere scintilla' evidence." Johnson v. Ferguson, 435 SO.2d 1191, 1195 (Miss. 1983). Questions of law are reviewed de novo. Bailey v. Estate of Kemp, 955 So. 2d 777, 781 (Miss. 2007) WHETHER AMENDMENT TO INTERIOR LOT LINES GIVE RISE TO THE APPLICABILITY OF (4), WHEREBY OBJECTING PARTIES ARE REQUIRED TO AGREE IN WRITING TO THE VACATION OR ALTERATION OF A PLAT PRIOR TO THE CITY COUNCIL PROCEEDING WITH A RESUBDIVISION? Stated in more general terms, the primary question before this court is whether a request by a property owner to split one lot into two lots (Le., insertion of an interior lot line) is considered a vacation or an alteration of a subdivision plat so as to invoke the 6

12 provisions of (4)? The most recent case on this subject appears_lobe cos, --- Developments, LLC, et a/., v. College Hill Heights Homeowners.~.Jl73 So. 2d , (Miss. App. 2008). In COR Developments, Mississippi Court of Appeals was presented with the perfect opportunity to find that a change to interior lot lines constituted a vacation or an alteration of a subdivision plat. Of great import in the present case is the fact that the Court declined to do so. COR Developments purchased seven (7) lots in _._---_... the College Hills Subdivision with the intent of constructing condominium units on and over those lots. The adjoining property owners objected to the construction of those condo units on several grounds including restrictive covenants (not at issue in the present case) and the failure of the condo developer to proceed under (4) of the Mississippi Code to obtain approval of the alteration of a plat. The neighboring homeowners (i.e., homeowners association) argued that the developer must obtain approval of the plat alteration because it would be construction the condominiums over interior lot lines, over utility easements and over a portion of a platted right of way. The court found that two of those three items required alteration of the plat; one did not. Specifically, the court held that "COR was required to secure alteration of the plat before proceeding with development that would obliterate a significant portion of the platted right of way of Adams Lane and all the platted utility easements on the subject lots." COR Developments, LLC, et a/., v. College Hill Heights Homeowners, LLC, 973 So. 2d 273, 286 (Miss. App. 2008). The Court specifically did NOT include amendment to interior lot lines as a reason why COR should proceed through the courts to obtain alteration of the plat. The Court did so in spite of language from an Attorney General's opinion that seems to state otherwise. Of course, the Court also noted that an 7

13 '''attorney general's opinion is entitled to careful consideration and regarded as persuasive; however, the opinion irs] not binding upon the court considering the same question.'" COR Developments, LLC, et al., v. College Hill Heights Homeowners, LLC, 973 So. 2d 273, 284 (Miss. App. 2008) citing Blackwell v. Miss. Bd. of Animal Health, 784 So. 2d 996, 1000 (Miss. App. 2001). Mississippi Code Annotated (4) provides a bit of guidance to us in the next to last sentence of the paragraph which provides "[n]o land shall be subdivided nor shall the map or plat of any land be altered or vacated in violation of any duly recorded covenant running with the land." The plain wording of this sentence indicates that the legislature considered a subdivision to be something different than an alteration or a vacation. In the gase at bar, the applicant seeks to subdivide the platted tract of land that he owns. In light of the COR Developments case, it is the position of the City of Gulfport that amendments to interior lot lines in a platted subdivision do not constitute a plat alteration so as to require the applicability of (4). The City Council is authorized, under its ordinances, to proceed with the subdivision of a lot under the subdivision regulation provided for in the City's Code of Ordinances. IN THE ALTERNATIVE, SHOULD THE COURT FIND THAT AMENDMENTS TO INTERIOR LOT LINES GIVE RISE TO THE APPLICABILITY OF (4), WERE THESE OBJECTING PARTIES REQUIRED TO AGREE IN WRITING TO THE VACATION OR ALTERATION PRIOR TO THE CITY COUNCIL PROCEEDING? Section (4) of the Mississippi Code provides that: If the owner of any land which shall have been laid off, mapped or platted as a city, town or village, or addition thereto, or subdivision thereof, or other platted area, whether inside or outside a municipality, desires to alter 8

14 or vacate such map or plat, or any part thereof, he may petition the board of supervisors of the county or the governing authorities of the municipality for relief in the premises, setting forth the particular circumstances of the case and giving an accurate description of the property, the map or plat of which is to be vacated or altered and the names of the persons to be adversely affected thereby or directly interested therein. Ho_weyer before taking such action, the parties named shall be made aware of the action an'd must a ree in writin to the vacation or alteration. Failure to ain approval from the parties named shall prohl I t e oard of supervisors or governing authorities from altering or vacating the map or plat, or any part thereof. Any alterations of a plat or map must be recorded in the a-pproj)riate location and a note shall be placed on the original plat denoting the altered or revised plat. No land shall be subdivided nor shall the map or plat of any land be altered or vacated in violation of any duly recorded covenant running with the land. (emphasis added) Miss. Code Ann (4) (1972 as amended). The statute is very clear. Where applies, before the Governing authorities of a municipality may proceed with an alteration or a vacation of a plat, two categories of persons must be noticed and agree, in writing to the vacation or alteration: those persons who are directly interested and those persons who are adversely affected. Nowhere in the statute are the terms "directly interested" or "adversely affected" defined. Without definition, determining who, if anyone, falls into those categories is a challenge, to say the least. Looking first at "directly interested", it is quite arguable that those directly interested in the subdivision of a lot are the persons who own the lot in question. By requiring that those "directly interested" in the action to agree in writing, the statute prevents one owner of a parcel from proceeding with an action without the agreement of the other owners. No other owners could claim to be "directly interested" in the pending action. They may be "indirectly interested" in the action (i.e., an adjoining property owner), but the statute does not require notice to those who are only "indirectly interested". In the case at bar, the two property owners are the petitioners; both have 9

15 signed the request for resubdivision. The other "directly interested" party in this matter would be the City of Gulfport; the City expressed its agreement with the request by voting to grant the request. Secondly, we must look to the phrase "adversely affected". Again, the phrase is not defined in the statute. In the present matter, it is hard to argue that any of the neighbors are "adversely affected" by the requested resubdivision. The lots being formed by the resubdivision are at least 2,500 square feet LARGER than the minimum lot size for buildable lots in an R zoning classification. The proposed lots are in keeping with the lost size in the neighborhood. There is no standard provided in the statute to utilize when attempting to determine who is "adversely affected". From the viewpoint of the City and the Hubbards, no one is "adversely affected" by the requested resubdivision. Others may beg to differ, but, unfortunately, the statute is impermissibly vague as to just how we are to determine who is "adversely affected". It is important to note to this Court that the statute makes reference to those who are "adversely affected"; not just to those who are "affected". CONCLUSION Because the only action sought by the Hubbards is to subdivide their lot into two separate lots, their request is not subject to the provisions of (4). The Mississippi Court of Appeals, when given the opportunity to include amendments to interior lot lines as a "vacation" or "alteration" of a plat specifically declined to do so. Altematively, if the court should find that the request to resubdivide does fall under (4), then all parties required by the statute to agree in writing have done 10

16 so. The Hubbards are the parties "directly interested" and they both signed the re~t. No parties are adversely affected by the request as the request seeks only to comply with the applicable zoning for lots sizes in that area. As such, the City respectfully requests this Court to grant the present appeal. RESPECTFULLY SUBMITTED, this the 1V day of D~w,2009. CITY OF GULFPORT, MISSISSIPPI BY: ~\~K Assistant City Attorney MARGARET MURDOCK, ESQ. MSBNO._ Post Office Box 1780 Gulfport, MS Phone: Facsimile:

17 CERTIFICATE OF FILING AND SERVICE I, MARGARET MURDOCK, Assistant City Attorney for the City of Gulfport, do hereby certify that I have this day mailed, though the United States Mail, postage prepaid, the original and one (1) true and correct copy of the above and foregoing to, Charlotte Williams, Clerk, Mississippi Supreme Court, at her usual mailing address of Post Office Box 249, Jackson, MS 39205; a true and correct copy of the above and foregoing to Betty Toon Collins, Esq., at her usual mailing address of P.O. Box 651, Jackson, MS ; a true and correct copy of the above and foregoing to T. Frank Collins, Esq., at his usual mailing address of 599B Steed Road, Ridgeland, MS 39157; and a true and correct copy of the foregoing to Michael Presita, Esq., at his usual mailing address of P.O. Box 1928, Gulfport, MS This the 'V O day of () JO\,;;\., MARGAR~DOCK, ESQ. MSBNO..- Post Office Box 1780 Gulfport, MS Phone: Facsimile: mmurdock@gulfport-ms.gov 12

18 Page 1 of2 Westlaw. Miss. Code Ann Page I ~ West's Annotated Mississippi Code Currentness Title 17. Local Government; Provisions Common to Counties and Municipalities '1<1 Chapter I. Zoning, Planning and Subdivision Regulation Regulation of subdivisions (1) When new subdivisions are laid out, the governing authority of each municipality or county may, before allowing dedication, impose such terrns as may be deemed necessary to make the provisions of Sections through , inclusive, effective, and such governing authorities may receive easements in the land affected whereby such sections may be made effective. (2) The board of supervisors of any county may order that no plat of a subdivision shall be recorded until it has been approved by the board of supervisors, and the board of supervisors shall have power to require the installation of utilities and laying out of streets in subdivisions or to accept performance bonds in lieu thereof; the board of supervisors of any county bordering on the State of Tennessee having a population of more than sixty-seven thousand nine hundred (67,900) but less than seventy thousand (70,000) according to the 1990 federal census and having a land area of more than four hundred seventy (470) square miles but less than five hundred (500) square miles may also, in lieu thereof, require the deposit of monies with the county which shall be placed in a special interest-bearing account in the county treasury, and such board of supervisors at the appropriate time shall spend monies from such account solely for the purpose of constructing or improving the roads and other infrastructure within the subdivision with respect to which the deposit or deposits were made. (3) The governing authorities of a municipality may provide that any person desiring to subdivide a tract of land within the corporate limits shall submit a map and plat of such subdivision, and a correct abstract of title of the land platted, to said governing authorities, to be approved by them before the same shall be filed for record in the land records of the county; and where the municipality has adopted an ordinance so providing, no such map or plat of any such subdivision shall be recorded by the chancery clerk unless same has been approved by said governing authorities. In all cases where a map or plat of the subdivision is submitted to the governing authorities of a municipality, and is by them approved, all streets, roads, alleys and other public ways set forth and shown on said map or plat shall be thereby dedicated to the public use, and shall not be used otherwise unless and until said map or plat is vacated in the manner provided by law, notwithstanding that said streets, roads, alleys or other public ways have not been actnally opened for the use of the public. If any easement dedicated pursuant to the provisions of this section for a street, road, alley or other public purpose is determined to be not needed for the public purpose, the easement may be declared abandoned, and ownership of the fee underlying the easement shall revert, regardless of the date of dedication, to the adjoining property owner or owners at the time of abandonment. Ownership of such easement shall extend to the centerline of said abandoned street, road or public way. Such abandonment and reversion shall not affect any private easements which might exist. (4) If the owner of any land which shall have been laid off, mapped or platted as a city, town or village, or addi Thomson Reuters. No Claim to Orig. US Gov. Works. 10/20/2009

19 Page 2 of2 Miss. Code Ann Page 2 tion thereto, or subdivision thereof, or other platted area, whether inside or outside a municipality, desires to alter or vacate such map or plat, or any part thereof, he may petition the board of supervisors of the county or the governing authorities of the municipality for relief in the premises, setting forth the particular circumstances of the case and giving an accurate description of the property, the map or plat of which is to be vacated or altered and the names of the persons to be adversely affected thereby or directly interested therein. However, before taking such action, the parties named shall be made aware of the action and must agree in writing to the vacation or alteration. Failure to gain approval from the parties named shall prohibit the board of supervisors or governing authorities from altering or vacating the map or plat, or any part thereof. Any alterations of a plat or map must be recorded in the appropriate location and a note shall be placed on the original plat denoting the altered or revised plat. No land shall be subdivided nor shall the map or plat of any land be altered or vacated in violation of any duly recorded covenant running with the land. Any municipality which shall approve such a vacation or alteration pursuant to this section shall be exempt from the sale of surplus real property provisions as set forth in Section (5) Subdivision regulation under this section shall not conflict with Article VII of the Chickasaw Trail Economic Development Compact described in Section CREDIT(S) Laws 1950, Ch. 491, 123; Laws 1956, Ch. 197, 1 to 6; Laws 1960, Ch. 402, I; Laws 1997, Ch. 459, 1; Laws 1998, Ch. 553, 8, eff July I, Amended by Laws 2008, Ch. 339, 3, eff. from and after passage (approved March 25, 2008); Laws 2009, Ch. 531, 3, eff. from and after passage (approved April 14, 2009). Current through End of the 2009 Regular and 1st to 3rd Extraordinary Sessions (C) 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. END OF DOCUMENT 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. i 0/20/2009