APPELLANT VERSUS CITY OF PASS CHRISTIAN APPELLEE BRIEF OF APPELLEE, CITY OF PASS CHRISTIAN

IN THE SUPREME COURT OF MISSISSIPPI NO. 2012-CA-OI035 CHARLarTEFOSTE~~~ APPELLANT VERSUS CITY OF PASS CHRISTIAN APPELLEE BRIEF OF APPELLEE, CITY OF PASS CHRISTIAN On Appeal from the Circuit Court of Harrison County, Mississippi, First Judicial District Civil Action No: A2401-11-59 WITTMANN & WITTMANN Frank P. Wittmann, III, MS Bar F. Philip Wittmann, IV, MS Bar Attorneys at Law 1820 22nd Avenue Post Office Box 1648 Gulfport, Mississippi 39502 (228) 864-1600 Attorney for Appellee

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 Justices of the Supreme Court and/or the Judges ofthe Court of Appeals may evaluate possible disqualification or recusal: 1. Honorable Richard W. McKenzie, Special Circuit Judge, Hattiesburg, Mississippi who entered the Order on the Appeal to the Circuit Court. 2. Charlotte Foster, Appellant 3. Mr. and Mrs. Chase Mosley, owners of subject Property. 4. David Goff, Attorney for Mr. and Mrs. Mosley 5. Virgil G. Gillespie, Attorney for Appellant 6. Mayor Leo McDermott 7. Alderman Rory Robin Rafferty 8. Alderman Joseph Piemas 9. Alderman Anthony Hall 10. Alderman Huey Bang 11. Alderman Renee Brooks 12. Willie Cox, Zoning Board 13. Lisa Smith, Zoning Board 14. Steve Dick, Zoning Board 15. Gerald Rooney, Zoning Board 16. Eddie Tillman, Zoning Board 17. F. Philip Wittmann, IV Attorney for City of Pass Christian i.

TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES...iii STATEMENT OF THE ISSUES... 1 STATEMENT OF THE CASE... 1 SUMMARY OF THE ARGUMENT...3 ARGUMENT...3 CONCLUSION... 5 CERTIFICATE OF SERVICE... 7 ii

TABLE OF AUTHORITIES Heroman v. McDonald, 885 So.2d 67, 70 (Miss.2004)... 3 Perez v. Garden Isle Cmty. Ass'n, 882 So.2d 217, 220 (Miss.2004)... 4 Barnes v. DeSoto County Bd. of Supervisors, 553 So.2d 508, 510-11 (Miss. 1989)...4 Modak-Truran v. the City of Jackson, 18 So. 3d 206 (Miss. 2009)... 4 Duckett v. Ocean Springs, 24 So. 3d 405 (Miss. Ct. App. 2009)...4, 5 Drews v. City of Hattiesburg, 904 So.2d 138, 141 (Miss.2005)...4 McWaters v. City of Biloxi, 591 So.2d 824, 828 (Miss.1991)...4 iii

STATEMENT OF THE ISSUES: 1. Whether the Circuit Court order should be affirmed, finding the zoning decision of the Board of Alderman ofthe City of Pass Christian was not arbitrary, capricious, discriminatory, unreasonable, or beyond the legal authority ofthe city. 2. Whether the trial court properly found that the special exception granted by the City of Pass Christian was not arbitrary or discriminatory spot zoning. STATEMENT OF THE CASE: The subject of the present case originated when the owners of a residence located at 855 East Scenic Drive in Pass Christian, Mississippi owned by Erin and Chase Moseley made application for a five room bed and breakfast. Originally the owners had applied for Planning Commission approval under the newly adopted Pass Christian Smart Code. 1 This application was never acted upon as it was later determined that the Smart Code had not been properly published in accordance with applicable law and therefore not in effect. The Moseley's then filed their application under the 1970 zoning code requesting a four room inn (amended to reflect "2 rental units (suites)") under the then-existing Zoning Ordinance 351. (See Record Excerpt Tab 4) This Home is located in the district classified as R-O. R-O is a residential district located just north of Highway 90 and fronts Scenic Drive. In addition to the permitted uses in this district, Section 601.3 allows for uses permitted as special exceptions. The Pass Christian zoning ordinance defines Special Exceptions as follows (See Record Excerpts Tab 6): I Under the Smart code this property lies in the T3-Estate (T3E) zone which allowed an Inn up to 5 rooms by special approval ofthe Planning Commission. 1

Special Exception: A special exception is a use that would not be appropriate generally throughout a zoning district but which, if controlled as to number, area, location, or relation to existing and permitted land use in a zoning district, would promote the public health, safety, welfare, morals, order, comfort, convenience, appearance, prosperity, or general welfare. Further, Section 601.3.2 of the Pass Christian Code allows for a special use exception to those permitted in the district. The applicable section reads as follows: 601.3.2 The renting of rooms within existing structures (but not the building of additions for rental purposes) provided that the number of such rental units shall not exceed two (2). (See Record excerpts Tab 7) This special exception was what was applied for and what was granted. Appellants make exception that the Zoning Board of Adjustments exceeded their authority by allowing the Moseley's to serve one meal and thus were actually granting the Moseley's a variance the right to operate a "Tourist Home" in contradiction to the zone in which the property is located. "Tourist Home" is defined by the Pass Christian Zoning code as (See Record Excerpts Tab 6): A dwelling in which overnight accommodations, with or without meals, are provided or offered for transient guests for compensation. There is no restriction as to the size or the number of rooms allowed in a tourist home. The term "Bed and Breakfast" is 'not mentioned anywhere in the code. Appellant makes reference to the Business Plan attached to the Moseley's application wherein several references are made to a bed and breakfast. (Tab 4) As noted in the request for special exception by the Moseley's, no form or application existed for this request and thus the business plan was offered as an example of the type of business that the Moseley planned to run. This business plan was certainly not binding on the City of Pass Christian nor ever made a part of the motion made at the zoning hearing as to what would be allowed under the ordinance. (See Record Excerpts Tab 5) 2

Although the tenn Bed and Breakfast is mentioned throughout the discussions and brief of Appellant, clearly the application was for the rental of two rooms and that is what the Board granted. The applicable Section 601.3.2 is silent as to the serving of meals. It is important to note that the convenience of serving a meal is not prohibited in the section. The Board, however, merely put the restriction that only one meal could be served to the guests. SUMMARY OF THE ARGUMENT: The Pass Christian Zoning ordinance clearly allows for a Special Exception in the R-O zone which would allow a commercial renting of two rooms. The only restriction placed on said exception is that the number of rental units shall not exceed two. Appellants contention that the only area which allows overnight accommodations is C-3 zone completely ignores the very exception which was granted. Neither the special exception nor the tourist home definition speaks to any time restraint or intention to limit either. The special exception was not granted for, nor was the application for a Tourist Home. Overnight accommodations are clearly allowed in zone R-O and there are no restrictions placed on them for offering meals. Further the application made was not for a variance to the zoning code, but was for a use pennitted by the Pass Christian Zoning code. ARGUMENT: The Court has held that neither the Circuit Court nor the Supreme Court has the power to tamper with municipal zoning unless the zoning decision is shown to be arbitrary, capricious, discriminatory, illegal, or without substantial evidentiary basis. Heroman v. McDonald, 885 So.2d 67, 70 (Miss.2004). Further, there is a presumption of validity of a governing body's 3

enactment or amendment of a zoning ordinance and the burden of proof is on the party asserting its invalidity. The court further held that where the point at issue is "fairly debatable," we will not disturb the zoning authority's action. Perez v. Garden Isle Cmty. Ass'n, 882 So.2d 217,220 (Miss.2004). Reviewing courts must determine whether the applicant proved by a preponderance of the evidence that all conditions required for the requested conditional use were satisfied. Barnes v. DeSoto County Bd. of Supervisors, 553 So.2d 508, 510-11 (Miss. 1989). In the present case, the zoning board heard all ofthe evidence and testimony presented by the Moseley's as well as the argument put forth by the appellant. After weighing the evidence and the applicable State law, the board made specific findings that they had the authority to grant a special exception and further, that the Moseley's had established by a preponderance of the evidence that a special exception should be granted. The only question Appellant raises is the service of one meal in allowing the special exception. As stated previously there is no language in the special exception which would bar the convenience of serving one meal. The Mosley's did not request nor were they granted the ability to serve meals to the general public. This point is fairly debatableand the decision of the Board should not be disturbed. Appellant argues that in allowing the permissible special exception, the City of Pass Christian acted arbitrary and discriminatory of which amounted to spot zoning. In support of this contention the Appellant refers to the case of Modak-Truran v. the City of Jackson, 18 So. 3d 206 (Miss. 2009) and Duckett v. Ocean Springs, 24 So. 3d 405 (Miss. Ct. App. 2009). Spot zoning had been defined by the court as describing a zoning ordinance which is amended to "reclassify one or more tracts or lots for a use prohibited by the original zoning ordinance and out of harmony therewith." Drews v. City of Hattiesburg, 904 So.2d 138, 141 (Miss.2005) (quoting McWaters v. City of Biloxi, 591 So.2d 824, 828 (Miss.l991). The case at hand is 4

clearly distinguishable from Modak-Truran in that the Pass Christian Zoning Board was following the pennissible special exception allowed for in Section 601.3.2 of the Pass Christian Zoning code. In Modak-Truran the City of Jackson amended the zoning code effectively allowing the Fairfield Inn from having to obtain a new use pennit. Additionally, the Jackson City council overrode the negative recommendation of the Planning Board in allowing the amendment. The argument put forth by Appellant that renting of rooms in the R -0 district was prohibited is just not supported by the special exception in the zoning ordinance. The distinction is even more glaring in the Duckett case. In Duckett the City of Ocean Springs attempted to grant what amounted to a special exception to a business located in the Ocean Springs harbor. All parties agreed, however, that a special exception or conditional use pennit was not pennitted in the limited marina district. In finding that the City was attempting to circumvent its inability to issue a special use pennit the court found that the city attempted to rezone the district without complying with the statutory requirement of rezoning. Duckett v. Ocean Springs 24 So. 3d 405 at 409 (Miss. Ct. App. 2009). It is clear that the Pass Christian zoning ordinance allowed for a special exception for the renting oftwo rooms. The Board heard arguments on both sides and made specific findings that the Moseley's had met their burden in granting the exception. CONCLUSION: Construction of zoning ordinances by local authorities should be given great weight. The actions of the Board were neither arbitrary, capricious, discriminatory, illegal, or without a substantial evidentiary basis. Furthennore, the actions ofthe board were not spot zoning as raised by Appellant. The City of Pass Christian did not attempt to amend the zoning code nor 5

circumvent the zoning code for the sole benefit of the Moseley's. The special exception was permissible under the existing zoning ordinance and was properly applied to the Moseley's. Respectfully, Appellee submits that this matter be affmned. Respectfully, submitted this the ~day of January, 2013. CITY OF PASS CHRISTIAN BY: 25 ITTMANN, IV Attorney for Appellee WITTMANN & WITTMANN Frank P. Wittmann, III, MSB~ F. Philip Wittmaun, IV, MSB,... Post Office Box 1648 Gulfport, MS 39502 Phone: (228) 864-1600 Fax: (228) 868-1194 6

CERTIFICATE OF SERVICE I, F. Philip Wittmann, certify that I have this day mailed, via United States Mail, first class, postage prepaid, a true and correct copy of the above and foregoing Brief of Appellee to: Judge Richard W. McKenzie 630 N. Main Street Hattiesburg, MS 39401 David Goff Deutsch, Kerrigan, & Stiles, L.L.P. 2510 14th Street, Suite 1001 Gulfport, MS. 39501 Virgil G. Gillespie P. O. Box 850 GulfPort, MS 39502 So certified this, the lib day of ~(luc..(l.y,2013. WITTMANN & WITTMANN Frank P. Wittmann, III, MSB F. Philip Wittmann, IV, MSB Post Office Box 1648 GulfPort, MS 39502 Phone: (228) 864-1600 Fax: (228) 868-1194..t', 7