Case 1:14-cv LG-JMR Document 7 Filed 04/14/14 Page 1 of 9

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1 Case 1:14-cv LG-JMR Document 7 Filed 04/14/14 Page 1 of 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION DANNY O. COWART; BRANDI S HOPE COMMUNITY SERVICES, LLC; AND SCIOTO PROPERTIES SP-16, LLC PLAINTIFFS VS. CITY OF MOSS POINT, MISSISSIPPI, A MUNICIPAL CORPORATION CIVIL ACTION NO.: 1:14CV153-LG-JMR DEFENDANT CITY OF MOSS POINT S RESPONSE TO PLAINTIFFS MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION COMES NOW, the City of Moss Point ( the City ), by and through its counsel of record, Dogan & Wilkinson, PLLC, and files this Response to Plaintiffs Motion for Temporary Restraining Order ( TRO ) and/or Preliminary Injunction and in support of same states as follows: 1. The Chronology of Events Clearly Shows that Plaintiffs Are Asking for Equitable Relief from this Court with Unclean Hands The City of Moss Point was contacted by Scioto Properties some time before December 12, Scioto requested a copy of the Moss Point zoning ordinances ( the Code ), which were timely provided to Scioto. See Chain between Scioto s Attorney and Andrew Beamon attached hereto as Exhibit A. On December 12, 2013, Scioto ed the City of Moss Point s Building Official, Andrew Beamon, and stated: Emphasis added. After reviewing the Code, it is my opinion that Scioto s purchase of the two homes on River Pine Drive and their use by Brandi s Hope to provide adult family homes for the individuals with disabilities they serve, is a permitted use under the Code for any residential district within Moss Point.

2 Case 1:14-cv LG-JMR Document 7 Filed 04/14/14 Page 2 of 9 See Exhibit A. Scioto went on to state that it is their opinion that Brandi s Hope would be considered a Family and not a Group Home as defined in the Code. See Exhibit A. Mr. Beamon immediately responded to Scioto s and stated: I have read your and I am in difference with your opinion...the zone in which the two properties are located are currently zoned R-1A. Within this district the use or service that your buyer will provide is not permitted in that particular zone... I noticed your efforts of referring to the zoning ordinance book in explaining the definition of Family and Group Home, however, this project seemly would be considered a group home...group Home is not permitted in an R-1A zone. But all other residential zones have a special exception section which would allow this project to become manifest. In R-1B single family residential zone sec no. 7, similar uses, this would allow your potential buyer to possibly locate their services in this area. See Exhibit A. Mr. Beamon clearly interpreted the zoning ordinance, on behalf of the City, to mean that Brandi s Hope s use of the properties in the R-1A zone was prohibited. Scioto, through its attorney, stated that it would review Mr. Beamon s opinion (i.e. the City s opinion) together with the Fair Housing Act ( FHA ), and then it would be better prepared to discuss this matter further. See Exhibit A. Despite Scioto s acknowledgment that the City s interpretation of its zoning ordinances did not allow the operation of Brandi s Hope, a Group Home, in an R-1A zone, and its plan to review the City s interpretation in conjunction with the FHA and get back with the City to discuss, Brandi s Hope and Scioto made the decision to open its business at 3873 River Pine Drive. Some time on or around March 11, 2014, the City began getting phone calls from residents of Riverwood Subdivision about business like activity taking place at 3873 River Pine Drive. This was the first time the City became aware that Brandi s Hope and Scioto disregarded the Building Official/Chief Code Enforcer s (Mr. Beamon s) clear written interpretation that the use of the home by Brandi s Hope was not allowed in an R-1A. 2

3 Case 1:14-cv LG-JMR Document 7 Filed 04/14/14 Page 3 of 9 The Mississippi Supreme Court has stated on numerous occasions that the best interpretation of what the wording in an ordinance means is the manner in which it is interpreted and applied by the enacting and enforcement authorities. Faircloth v. Lyles, 592 So. 2d 941, 945 (Miss. 1991), Columbus & Greenville Railway Co. v. Scales, 578 So.2d 275, 279 (Miss.1991). Favre v. Hancock County Board of Supervisors, 52 So. 2d 463, 466 (Miss. Ct. App., 2011). In the instant case, Mr. Beamon, as the City representative and Chief Code Enforcer for the City, interpreted the ordinance to mean that Brandi s Hope s use of the residence as a Group Home (not as a Family) was not allowable in an R-1A 1. See Exhibit A. This interpretation was provided to Brandi s Hope and Scioto in December, before Scioto purchased the home, before Brandi s Hope entered a lease to use the home and well before the current tenants entered into a lease to live in the home. See Deeds attached as Exhibit C, Leases between Scioto and Brandi s Hope as Exhibit D and Leases between Brandi s Hope and tenants as Exhibit E. Plaintiffs could have challenged the City s decision in a number of ways prior to placing the tenants in a position to suffer irreparable harm, as Plaintiffs argue. First, the Zoning Ordinances provide for appeals from decisions of administrative officials, such as Mr. Beamon. See Article III, Section 800 of the Moss Point Zoning Ordinances, attached hereto as Exhibit B. Specifically, Section 800 states: Any person or persons, or any board, taxpayer, department or bureau of the city aggrieved by any order, requirements, decision or determination made by the Administrative Official and/or Building Inspector in the enforcement of the Ordinances may appeal such order, requirement, decision or determination to the Zoning Board of Adjustments. The Zoning Board of Adjustment 1 Section 1000 of the City s zoning ordinances states that [w]henever the requirements of this Ordinance are at variance with the requirements of any other...ordinances, the most restrictive or that imposing the higher standards shall govern. Therefore, if the use by Brandi s Hope fit the definition of Family and Group Home, the City shall use the most restrictive definition, which is Group Home. See Page 96 of Ordinances attached as Exhibit B 3

4 Case 1:14-cv LG-JMR Document 7 Filed 04/14/14 Page 4 of 9 may, by majority vote, so long as such action is in conformity with the terms of this Ordinance, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as out to be made, and to that end shall have the powers of the Administrative Official from whom the appeal is taken. See Exhibit B, page 92. Appeals to the Zoning Board of Adjustments are required to be taken within a reasonable time, not to exceed thirty (30) days. See Exhibit B, Section 803. In addition to the appeal rights afforded through the Moss Point Zoning Ordinances, Plaintiffs also could have sought a Declaratory Judgment from this Court in December, well before the tenants were placed at any risk of irreparable harm for being removed from the commercial establishment operating in a residential zone. Plaintiffs could have also filed an appeal under Mississippi Code Annotated, Section , which is the statutory method for challenging a governmental entity s decision. Plaintiffs failed to take any of the above steps to determine the legality of the City s interpretation of its Ordinances BEFORE it placed their tenants in the position to allegedly suffer irreparable harm. Rather, Plaintiffs chose to ignore the interpretation clearly provided by the City, move the tenants in to create a sympathetic situation to this Court, and then argue the Court must grant the TRO and/or Preliminary Injunction to protect the very people that Brandi s Hope has purposely and intentionally placed in harm s way. This Court should not allow the equitable relief of the TRO or Preliminary Injunction due to the Plaintiffs unclean hands. Davis v. Parker, 145 F.3d 359, 1998 WL at *5 (5 th. Cir. 1998). 2. Plaintiffs Have Not Met the Four Prerequisites for a Preliminary Injunction A. Plaintiffs are not likely to succeed on the merits. 4

5 Case 1:14-cv LG-JMR Document 7 Filed 04/14/14 Page 5 of 9 The classification of property for zoning purposes is a legislative rather than a judicial matter. W.L. Holcomb, Inc. v. City of Clarksdale, 217 Miss. 892, 900, 65 So.2d 281, 284 (1953). The Fifth Circuit has held that a Community s zoning authority is a valid exercise of its police powers and that generally zoning decisions are afforded considerable deference. Star Satellite, Inc. v. City of Biloxi, 779 F.2d 1074, 1079 (5 th Cir. 1986). If said interpretation infringes on a person s constitutional rights, however, then the zoning laws must be narrowly drawn in furtherance of a substantial governmental interest. Schad v. Borough of Mount Ephraim, 452 U.S 61, 68 (1981). Regulations intended to enhance property values, promote economic development, and provide identity and a sense of community serve as the rational basis for a municipal zoning ordinance. Yur-Mar, LLC v. Jefferson Parish Council, 451 Fed. Appx. 397, 401, 2011 WL (5 th Cir. 2011). The action of a Municipality in enacting or amending an ordinance, or its action of rezoning, carries a presumption of validity, casting the burden of proof upon the individual or other entity asserting its invalidity. Ridgewood Land Co. v. Moore, 222 So.2d 378, 379 (Miss.1969). On appeal the Court cannot substitute its judgment as to the wisdom or soundness of the City s action. Currie v. Ryan, 243 So.2d 48, 52 (Miss.1970); Moore v. Madison County Bd. of Supervisors, 227 So.2d 862, 864 (Miss.1969). The Mississippi Supreme Court has stated that where the point in controversy is fairly debatable, it has no authority to disturb the action of the zoning authority. Saunders v. City of Jackson, 511 So.2d 902, 906 (Miss.1987); Broadacres, Inc. v. City of Hattiesburg, 489 So.2d 501, 505 (Miss.1986). In the instant case, the City of Moss Point has a substantial interest in protecting the residential characteristics of its most restrictive zone, R-1A. The ordinance at issue is content neutral in that it does not allow any business to locate in an R-1A zone. Further, it is not 5

6 Case 1:14-cv LG-JMR Document 7 Filed 04/14/14 Page 6 of 9 preventing Brandi s Hope, or other group homes, from having the opportunity to live in a residential environment, as the City allows such by right in an R3 zone and by special exception in all other residential zones. See Zoning Ordinances attached hereto as Exhibit B. The City s decision should be given deference by this Court. Forcing the City to allow a business to operate in the City s most restrictive residential zone would not provide identity and a sense of community in the R-1A zone. With regard to Plaintiffs request for a reasonable accommodation, the City has reviewed the Department of Justice s website for guidance on the extent to which the City must grant a request for a reasonable accommodation. See Plaintiffs Request for reasonable accommodation attached as Exhibit F. The Department of Justice opined: Some individuals with disabilities may live together in congregate living arrangements, often referred to as group homes. The Fair Housing Act prohibits municipalities and other local government entities from making zoning or land use decisions or implementing land use policies that exclude or otherwise discriminate against individuals with disabilities. The Fair Housing Act makes it unlawful...to refuse to make reasonable accommodations in land use and zoning policies and procedures where such accommodations may be necessary to afford persons of groups of persons with disabilities an equal opportunity to use and enjoy housing. What constitutes reasonable accommodation is a caseby-case determination. Not all requested modifications of rules or policies are reasonable. If a requested modification imposes an undue financial or administrative burden on a local government, or if a modification creates a fundamental alteration in a local government s land use and zoning scheme, it is not a reasonable accommodation. See U.S. Department of Justice Opinion attached hereto as Exhibit G. In the instant case, allowing a Group Home, a business, to operate in the most restrictive zone in the City would create a fundamental alteration to the City of Moss Point s zoning scheme. See City letter dated April 2, 2014 attached as Exhibit H. Therefore, the City was not required to grant Plaintiffs request for a reasonable accommodation. 6

7 Case 1:14-cv LG-JMR Document 7 Filed 04/14/14 Page 7 of 9 B. Plaintiffs caused the alleged irreparable injury to the tenants of Brandi s Hope As discussed in depth supra, Plaintiffs had numerous options to have the legality of the City s zoning interpretation resolved prior to moving the tenants into the home at 3873 River Pine Drive. Plaintiffs chose to ignore the City s zoning ordinances and seek relief from this Court after it placed its tenants in the position to suffer the alleged irreparable harm as outlined in Plaintiffs Motion. After thoroughly researching this issue, the City could find no cases where a person or entity requesting equitable relief (injunction) did so after it intentionally and knowingly violated the law, and due to such intentional acts, caused the irreparable harm they are seeking the Court to prevent. Injunctive relief should not be given to a party with unclean hands. C. The threatened injury to the Plaintiffs does not outweigh the harm to the City of Moss Point. Plaintiffs argument that the threatened injury far outweighs the harm an injunction will cause the City likewise fails as any alleged injury was caused by Plaintiffs legal strategy to ask for forgiveness from the Court rather than permission from the City. The City will suffer if a commercial business is allowed to operate in the most restrictive zone in the City. The City has a right and an obligation to protect the residential characteristic of the R-1A neighborhood. The Fifth Circuit has found that zoning ordinances regulating commercial activity in a neighborhood are rationally related to a legitimate state interest in providing identity and a sense of community to the neighborhood. Yur-Mar, LLC v. Jefferson Parish Council, 451 Fed. Appx. 397, 401, 2011 WL (5 th Cir. 2011). Granting the injunction would deprive the City of its right to regulate land use through zoning in order to protect the health and property of its citizens. 7

8 Case 1:14-cv LG-JMR Document 7 Filed 04/14/14 Page 8 of 9 Most importantly, however, if the Court grants Plaintiffs requested relief of a TRO or Preliminary Injunction, it is setting a precedent for others to ignore the law, create a situation that causes harm or injury to them or others, and then argue the Court should step in to prevent such injury or harm when the person clearly had other legal avenues to resolve the issue in question. D. Entry of a preliminary injunction is not consistent with the public interest For the reasons set forth in response to number three (3), the entry of a preliminary injunction under the facts of the instant case are not consistent with the public interest. Plaintiffs have placed the City, and now this Court, into a position to make a decision based on the potential injury or harm to the tenants that they intentionally moved into the home when they knew that doing so was in violation of the zoning laws of the City of Moss Point. Had Plaintiffs chosen to challenge the City s interpretation prior to moving the tenants in then there would be no need for the emergency relief requested by Plaintiffs. It is not in the public s interest to have any laws, including those of the City of Moss Point, ignored and then give the violator the right to come before this Court and seek action to prevent the harm it intentionally caused. In addition, the harm caused to all of the residents of the City of Moss Point if the City is not allowed to enforce its zoning ordinances far outweighs the harm to Brandi s Hope to cease operating the commercial business while the Court decides whether the use does or does not fit in the R-1A zone. For all of the reasons set forth supra, the City of Moss Point asks this Court to deny Plaintiffs Request for a Temporary Restraining Order and/or Preliminary Injunction, and to allow the City to proceed with its Notice of Violation issued on April 3, 2014 and attached hereto as Exhibit I. 8

9 Case 1:14-cv LG-JMR Document 7 Filed 04/14/14 Page 9 of 9 Respectfully submitted, this the 14 th day of April, THE CITY OF MOSS POINT, Defendant BY: /s/ Amy Lassitter St. Pe Amy Lassiter St. Pe (MSB No ) Nathan Bosio (MSB No ) DOGAN & WILKINSON, PLLC 734 Delmas Avenue (39567) P.O. Box 1618 Pascagoula, MS (228) ; (228) fax astpe@dwwattorneys.com CERTIFICATE OF SERVICE I hereby certify that on April 14, 2014 I electronically filed the foregoing with the Clerk of the court using the ECF system. I also mailed a true and correct copy of same to the following, via U.S. Mail: Mr. William Hussey Maxey Wann PLLC P.O. Box 3977 Jackson, MS /s/ Amy Lassitter St. Pe AMY LASSITTER ST. PE 9