REPLY BRIEF FOR APPELLANTS

E-Filed Document Apr 10 2017 14:49:03 2016-CC-01121-COA Pages: 8 COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO.2016-CC-01121-COA LEONARD ALPERT, IZABELLA ALPERT, AND THUY LAND PAWN SHOP, INC. APPELLANTS VERSUS CITY OF BILOXI, MISSISSIPPI APPELLEE APPEAL FROM THE CIRCUIT COURT OF HARRISON COUNTY, SECOND JUDICIAL DISTRICT, MISSISSIPPI REPLY BRIEF FOR APPELLANTS (ORAL ARGUMENT NOT REQUESTED) WAYNEL.HENGEN HENGEN & HENGEN ATTORNEYS AT LAW 979 HOWARD A AVENUE BILOXI, MISSISSIPPI 39530 (228) 374-7844 MISS. BAR #2289

TABLE OF CONTENTS PAGE(S) TABLE OF CASES AND STATUTES............. 1 ARGUMENT................. 1-3 CONCLUSION............................................... 4 CERTIFICATE OF SERVICE... 5

TABLE OF CASES AND STATUTES CASES P AGE(S) City of Gulfport v. Anderson, 554 So.2d 873 (Miss. 1989)............ 2 STATUTES Miss. Code Ann., 21-37-7.... 2 i

ARGUMENT Resolution Number 449-15 of the CITY states as follows, to-wit: "... [T]he City Council, after careful consideration of all facts herein presented, hereby adopts the report and fiddings of the Biloxi Planning Commission and, in doing so, determines that approval of the Vacation and Realignment of that portion of Fayard Street, as presented, is appropriate to all effected properties." (CCP:71; RE:18.) With the CITY adopting the report and fiddings of the Planning Commission, it adopted the presentation by BOYD that access to the ALPERTS' property would be from Bayview Avenue at the point where the fifteen (15) foot strip to be granted to the ALPERTS would intersect Bayview Avenue. (CCP:lOO.) It is noted that curb cuts, ingress and egress, use, and access to the ALPERTS' property was discussed three (3) separate times at two (2) separate meetings at the Biloxi Planning Commission and was a consideration when the Planning Commission recommended approval to the City Council. (CCP:92, CCP:93, and CCP: 100.) Notwithstanding the report and findings of the Planning Commission that access to the ALPERTS' property would be from Bayview Avenue, the CITY now argues that no such report or fidding was adopted and does not respond in its BRIEF to the answers to the questions of access given by the Applicant and set out in BRIEF FOR APPELLANTS, Pages 9,10, and 11. Moreover, the CITY adopted the report and findings of the Biloxi Planning Commission without amendment, that is, without changing the access set out by BOYD to the Planning Commission. In fact, while the CITY acknowledges at least one parking space on the ALPERTS' property, the one behind the business used to park their personal vehicles, it takes the position that the ALPERTS' access to that is by trespassing across the BOYD property that is on the east, I

on the west, and to the south of the ALPERTS' property. (See Pages 11 and, 18-19 of BRIEF OF THE APPELLEE, CITY OF BILOXI, MISSISSIPPI.) The CITY argues that the ALPERTS are not entitled to access to their property because they had no access before. That is simply not true. The ALPERTS had a curb cut on Fayard Street to access their property and park their personal vehicle. BOYD acknowledged that as set out above. The CITY also argues that the ALPERTS' ignore the fact that "their property still fronts on Bayview Avenue, a public road". (See Page 12 of BRIEF OF THE APPELLEE, CITY OF BILOXI, MISSISSIPPI.) However, there is no parking on Bayview Avenue, no curb cut, no access. Bayview Avenue is a five (5) lane thoroughfare and provides to the ALPERTS no more access to their property than a NASCAR driver has to a spectator on the front straightaway at Talladega at race time. Therefore, notwithstanding the CITY's argument to the contrary, the report and fmdings of the Biloxi Planning Commission adopted by the CITY provide for a curb cut on Bayview Avenue at its intersection with the fifteen (15) foot strip for access to the ALPERTS' property and by that, a dangerous intersection is created, tlle consequence of which is adequately addressed in BRIEF FOR APPELLANTS, Pages 15-16. The ALPERTS stand by their arguments and the cases cited for support notwithstanding the CITY's arguments and its interpretation, and they acknowledge the law set out at Miss. Code. Ann., 21-37-7. The CITY only cites one new case in its argument, City of GuTjport v. Anderson, 554 So.2d 873 (Miss. 1989), but it does not apply. As tlle CITY points out, that case was an inverse condemnation case holding tllat where an alteration of access diminishes the value of the property, the property owner is entitled to compensation to the extent the alteration reduced the value. Id. at 875. That is not among the issues presented by the ALPERTS. Besides, unlike the Anderson case, the CITY here is not reclaiming its right of way from the 2

ALPERTS. It is vacating a street. Again, the issues here are the adoption by the CITY of the Planning Commission's report and findings on access, the CITY's denial of the access adopted, together with the dangerous intersection created. 3

CONCLUSION It is respectfully requested that this Court reverse the CITY and render a judgment in favor of the ALPERTS. The ALPERTS hereby adopt the CONCLUSION set out in BRIEF FOR APPELLANTS. 4

CERTIFICATE OF SERVICE I, WAYNE L. HENGEN, do hereby certify that I have this day filed the foregoing REPLY BRIEF FOR APPELLANTS with the Clerk of Court using the.mec system which sends notification of such filing to the following: David A. Wheeler, Esq. Michael F. Cavanaugh, Esq. Further, I hereby certify that I have mailed by United States Postal Service the REPLY BRIEF FOR APPELLANTS to the following: Hon. Lawrence P. Bourgeois, Jr. Circuit Court Judge P.O. Drawer 1461 Gulfport, Mississippi 39502 This the 10th day of April, 2017. s/wayne L. Hengen WAYNE L. HENGEN 5