Williams M. Beasley v. Ed Neelly
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CA-00458-COA
WILLIAM M. BEASLEY AND BEASLEY REAL
ESTATE, LLC
APPELLANTS
v.
ED NEELLY, BILL NESMITH, DICK HILL, GEORGE
M. TAYLOR, SMITH HEAVNER, NETTIE Y. DAVIS,
LARRY COLE, PERRY SMITH, DANNY BARROWS,
AND CITY COUNCIL OF THE CITY OF TUPELO
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANTS:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
2/20/2004
HON. THOMAS J. GARDNER, III
LEE COUNTY CIRCUIT COURT
RICHARD SHANE MCLAUGHLIN
GUY W. MITCHELL, III
MICHAEL D. CHASE
GARY L. CARANTHAN
CIVIL - OTHER
AFFIRMED DECISION OF CITY COUNCIL
GRANTING MAJOR CONDITIONAL USE
AFFIRMED - 9/13/2005
BEFORE BRIDGES, P.J., MYERS AND ISHEE, JJ.
BRIDGES, P.J., FOR THE COURT:
¶1.
V. M. Cleveland filed, as owner of Tupelo Furniture Market, Inc. (hereinafter “TFM”), an
application with the Department of Planning and Development for the City of Tupelo requesting a major
conditional use permit for TFM to add 300,000 square feet to its commercial facility. The planning
committee granted the conditional use a few weeks later.
¶2.
William M. Beasley and Beasley Real Estate, LLC (hereinafter collectively referred to as
“Beasley”), holding title to lots two and thirty-four in Oak Meadows Subdivision, respectively, in the
immediate vicinity of TFM, appealed the decision granting the conditional use to the Tupelo City Council.
The city council voted in favor thereof, so Beasley filed a bill of exceptions with the Circuit Court of Lee
County. Following a hearing on said matter, the court ruled to affirm the decision of the city council.
¶3.
Aggrieved by the lower court’s decision, Beasley has appealed to this Court and presents the
following three issues for our review:
I. WAS THE APPROVAL OF TUPELO FURNITURE MARKET’S CONDITIONAL USE
APPLICATION SUPPORTED BY SUBSTANTIAL EVIDENCE?
II. MUST THE APPROVAL OF TUPELO FURNITURE MARKET’S CONDITIONAL USE
APPLICATION BE REVERSED BASED ON THE FAILURE OF THE CITY COUNCIL TO
SUPPORT SAID APPROVAL WITH SPECIFIC FINDINGS OF FACT?
III. MUST THE APPROVAL OF TUPELO FURNITURE MARKET’S CONDITIONAL USE
APPLICATION BE REVERSED BASED ON THE FAILURE OF TUPELO FURNITURE MARKET
TO OBTAIN THE REQUISITE MAJORITY CONSENT OF THE OAK MEADOWS
HOMEOWNER’S ASSOCIATION?
Finding no error, we affirm.
FACTS
¶4.
In 1993, TFM applied for and was subsequently granted by the City of Tupelo a major conditional
use, permitting TFM to expand its operation by building on property zoned residential, or “R1-L.” The
conditional use, however, was only permitted provided that TFM complied with the explicit conditions
attached to the permit, which specified, in pertinent part, “[t]hat no industrial or commercial building would
extend beyond [a] designated 1500 ft. mark as established by . . . [a] boundary line survey.” The
proposed development was in the immediate vicinity of property owned by Beasley in the Oak Meadows
Subdivision, which has a homeowner’s association known as the Oak Meadows Homeowner’s
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Association. The permit also provided that all conditions included therein “would be placed as permanent
restrictions on the entire development, and could only be modified, altered, or changed by consent of the
majority of the Oak Meadows Homeowner’s Association . . . .”
¶5.
On March 17, 2003, V. M. Cleveland filed, on behalf of TFM, an application with the Department
of Planning and Development requesting another major conditional use so that TFM could expand again,
adding this time 300,000 square feet to the rear of the main structure with appropriate parking and
landscaping. After receiving the application materials, the Tupelo Planning Committee arranged for and
sent out notification of a public hearing, pursuant to Tupelo Development Code § 5.4.6., for April 7, 2003.
Prior thereto, the planning committee staff produced a detailed analysis, reconciling TFM’s application with
Tupelo Development Code § 5.4.7, which set forth the standards for such application as follows:
The Director of Planning and Development shall not approve the proposed minor
conditional use nor shall the Planning Committee or City Council approve the proposed
major conditional use and accompanying major site plan, unless and until they make the
following findings, based on evidence and testimony received at the public hearing or
otherwise appearing in the record of the case:
(1) That the proposed use or development of the land will not materially
endanger the public health or safety;
(2) That the proposed use is reasonably necessary for the public health
or general welfare, such as by enhancing the successful operation of the
surrounding area in its basic community functions or by providing an
essential service to the community or region;
(3) That the proposed use or development of the land will not
substantially injure the value of adjoining or abutting property;
(4) That the proposed use or development of the land will be in harmony
with the scale, bulk, coverage, density, and character of the area or
neighborhood in which it is located;
(5) That the proposed use or development of the land will generally
conform with [the] Comprehensive Plan and other official plans adopted
by the City;
(6) That the proposed use is appropriately located with respect to
transportation facilities, water supply, fire and police protection, waste
disposal and similar facilities;
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(7) That the proposed use will not cause undue traffic congestion or
create a traffic hazard.
¶6.
The expansion proposed by TFM in its application would have violated the boundary line
conditions stipulated in the 1993 permit; therefore, the proposal, pursuant to said conditions, was put to
a vote of the Oak Meadows Homeowner’s Association. Accordingly, every member was sent a ballot,
and ballots were returned by 64% of those members. The city’s planning director, Pat Faulkner,
subsequently confirmed with Cecil Overton, an officer of the Homeowner’s Association, that the result of
the poll of residents was 70% favorable to the proposed expansion. At the April 7 public hearing, the
planning committee voted, after reviewing all the evidence and hearing comments from the general public
in attendance, to approve the major conditional use for TFM.
¶7.
Beasley, who owned property in Oak Meadows and was a member of the Homeowner’s
Association, appealed the approval to the Tupelo City Council. The city council voted to approve the
major conditional use permit, so Beasley filed a bill of exceptions with the Circuit Court of Lee County.
However, following a hearing on the matter, the court affirmed.
LAW AND ANALYSIS
¶8.
Zoning issues that concern whether to grant or deny a request for a conditional use, or special
exception, are adjudicative, as opposed to legislative, in nature; therefore, on appeal, the 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). The standard for reviewing a decision of a municipal authority,
accordingly, is the same as when reviewing the decision of an administrative agency or board, and thus, the
reviewing court may only disturb the decision of the municipal authority upon finding that the decision “was
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unsupported by substantial evidence; was arbitrary or capricious; was beyond the agency’s scope or
powers; or violated the constitutional or statutory rights of the aggrieved party.” Wilkinson County Bd.
of Supervisors v. Quality Farms, Inc., 767 So. 2d 1007, 1010 (¶8) (Miss. 2000) (quoting Bd. of Law
Enforcement Officers Standards and Training v. Butler, 672 So. 2d 1196, 1199 (Miss. 1996)).
Substantial evidence, according to the Mississippi Supreme Court, is defined as relevant evidence that
reasonable minds might accept as satisfactory to support a conclusion or, stated otherwise, that which
constitutes “more than a ‘mere scintilla’ of evidence.” Hooks v. George County, 748 So. 2d 678, 680
(¶10) (Miss. 1999) (quoting Johnson v. Ferguson, 435 So. 2d 1191, 1195 (Miss. 1983)).
I. SUBSTANTIAL EVIDENCE
¶9.
Beasley maintains that neither the planning committee nor the city council was presented with
evidence sufficient to satisfy each of the criteria enunciated in section 5.4.7. Beasley contends that the most
notable evidentiary insufficiencies regarding the criterion concern whether the proposed expansion was (a)
reasonably necessary for the general welfare or health of the public; (b) in harmony with the general
character of the surrounding neighborhoods; and (c) in general conformity with the city’s official plans.
¶10.
The City contends Beasley failed to properly preserve this issue for appeal, claiming that he
neglected to specifically state in his petition to the city council that the decision of the planning committee
was not supported by substantial evidence. We, however, disagree. While Beasley did not expressly insert
the phrase “substantial evidence” anywhere in his petition for appeal, he did challenge the committee’s
conclusion as to each of the aforementioned criterion, and the argument he now advances mirrors that
which he presented to the planning committee, the city council, and the circuit court. Furthermore, the
argument that the city’s decision is unsupported by substantial evidence is explicitly raised in the bill of
exceptions to the circuit court. Mississippi’s long-standing law declares that the bill of exceptions serves
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as the record on appeal; therefore, this Court is not now barred from considering this issue. Miss. Code
Ann. § 11-51-75 (Rev. 2002); Van Meter v. City of Greenwood, 724 So. 2d 925, 928 (¶7) (Miss. Ct.
App. 1998); Falco Lime, Inc. v. the Mayor and Aldermen of the City of Vicksburg, 836 So. 2d 711,
727 (¶77) (Miss. 2002).
¶11.
We conclude, however, that Beasley’s argument as to this issue is meritless. The planning
committee’s staff analysis demonstrates that balanced evidentiary considerations were afforded each of the
aforementioned criterion, for the discussion therein evaluated the burdens and benefits that TFM’s
proposed expansion would potentially impose on the surrounding area. Contrary to Beasley’s position
concerning the general welfare or pubic health of the community, the staff analysis concluded that TFM
contributes substantially to the general welfare, prosperity, and tax base to the region. The staff analysis
stated that there would be harmony with the neighborhood if the new building would be hidden or mitigated,
and thus TFM’s application for the conditional use met this criteria as it contained a site plan that provided
for a landscaped buffer of berm and trees that would prevent the visibility of the building from the
surrounding area. Additionally, TFM offered to be contractually bound to maintain the berm to conceal
the new building, which the staff analysis noted would virtually eliminate the visual impact of the project.
Furthermore, the staff analysis determined that the landscaped buffer would conform with the city’s
comprehensive plan, and thus, the planning committee approved the conditionaluse based on the submitted
site plan, which provided for the landscaped buffer.
¶12.
An appellate court sitting in review of findings of fact affords deference to an administrative decision
in which the decision to grant or deny a variance is at issue, and if the decision can be viewed as “fairly
debatable,” it will not be disturbed on appeal. Biloxi v. Hilbert, 597 So. 2d 1276, 1280 (Miss. 1992).
The minutes of the city council summarized the testimony of citizens voicing their opinions in support of,
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and in protest to, the proposed expansion. Supporting reasons for the expansion included providing space
to display products of growing furniture companies, allowing TFM to provide more area for parking, and
that the proposed expansion is reasonably necessary for the general welfare by enhancing the successful
operation of the surrounding area and provide an essential service to the community by retaining furniture
companies at TFM and accompanying employment in the community. Viewing the evidence supporting
the city council’s decision in light of the seven factors specified in section 5.4.7, it is obvious that while Oak
Meadows subdivision is impacted; however, the property in question is adjacent to TFM, and the new
facility would benefit the business and welfare of the community. Based on the foregoing reasons, it is
apparent that the city’s decision to grant the conditional use can be viewed as “fairly debatable”, and
therefore, we will afford deference to the decision. The argument advanced by Beasley simply emphasizes
the negative implications associated with the requested conditional use, and without more, he has failed to
show that the city’s approval thereof was not supported by the requisite substantial evidence. Furthermore,
finding that the approval was supported by substantial evidence, we also find that the decision was not
arbitrary nor capricious, beyond the agency’s scope or powers, and did not violate Beasley’s constitutional
or statutory rights.
II. SPECIFIC FINDINGS OF FACT
¶13.
Section 5.4.7, as quoted above, prohibits the approval of any proposed major conditional use
“unless and until” findings are produced regarding the seven criteria prescribed therein. Beasley maintains
that the city council failed to make any findings of fact; therefore, the approval of TFM’s application was
erroneous.
¶14.
Although municipal authorities “should” detail their findings when granting or denying a conditional
use permit, the Mississippi Supreme Court has held that the failure to make explicit findings of fact, in and
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of itself, is an insufficient basis for reversal and the decision rendered in such regard is “tantamount to a
finding of fact.” Barnes, 553 So. 2d at 511; see also Citizens Ass'n for Responsible Dev., Inc. v.
Conrad Yelvington Distributers, Inc., 859 So. 2d 361, 367-68 (¶¶20-21) (Miss. 2003); Faircloth v.
Lyles, 592 So. 2d 941, 945 (Miss. 1991) (while recognizing the desirability of specific findings by a zoning
authority on each considered issue, the courts will not reverse for a lack of such specificity where a factual
basis for the action is supported by the record). The record in this matter, as previously discussed, is
replete with factual basis supporting the decision of the city council; therefore, we can find no reversible
error.
III. MAJORITY CONSENT
¶15.
Beasley maintains that the conditional use application was approved in error because only 44.8%
(70% of the 64% that returned ballots) of the total membership of the Homeowner’s Association voted in
favor of the proposed expansion. Beasley claims that, under the conditions of the 1993 conditional use
permit, TFM’s proposed conditional use could only be approved, in part, upon the “consent of the
majority of the Oak Meadows Homeowner’s Association.” (emphasis added). Beasley argues that
TFM’s application was approved by only a majority of those members that returned ballots and not the
majority of all members. Accordingly, Beasley contends that TFM failed to obtain the requisite majority
consent of the Homeowner’s Association.
¶16.
The Mississippi Supreme Court has long held that when “construing a zoning ordinance, unless
manifestly unreasonable, great weight should be given to the construction placed upon the words by the
local authorities.” Columbus & Greenville Ry. Co. v. Scales, 578 So. 2d 275, 279 (Miss. 1991)
(citations omitted). Furthermore, when a provision of an official enactment by a municipality is subject to
more than one interpretation, “the best interpretation of what the wording in the ordinance means is the
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manner in which it is interpreted and applied by the enacting and enforcement authorities.” Faircloth, 592
So. 2d at 945 (citation omitted). On April 7, 2003, Pat Falkner, the city planning director, informed the
planning committee by memorandum of the 70% vote in favor of the expansion, which he stated “[s]hould
serve to address the condition made on the 1993 approval that the homeowners association approval is
required for further expansion.” Relying on the results, the planning committee and city council
subsequently concluded that the consent requirement outlined in the 1993 conditional use permit had been
satisfied. Furthermore, the Mississippi Supreme Court has held that “[i]n an election, those who are
indifferent to the election to the extent that they do not go and vote are not entitled to control the result of
those who vote in the election, and the result is obtained by the majority who vote in the election and not
by a majority of all the voters of the municipality.” In re Validation of Municipal Bonds, 188 Miss. 817,
835,
196 So. 258, 263 (1940). Therefore, showing deference to the interpretation of the consent
provision as construed by the municipal authorities, we cannot find the issue advanced herein as a
basis for reversal.
¶17. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
MYERS AND ISHEE, JJ. CONCUR. IRVING, J., CONCURS WITH SEPARATE
WRITTEN OPINION, JOINED IN PART BY ISHEE, J. KING, C.J., DISSENTS WITH
SEPARATE WRITTEN OPINION, JOINED BY LEE, P.J. CHANDLER, GRIFFIS AND
BARNES, JJ., NOT PARTICIPATING.
IRVING, J., CONCURRING:
¶18.
While I agree with the majority opinion, I write separately to comment on a matter that neither the
majority opinion nor the dissenting opinion addresses, and, that is, whether the Appellants have standing
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to challenge the alleged failure of the City of Tupelo to comply with the provision in the 1993 major
conditional use permit granted to Tupelo Furniture Market (TMF). The fact that TMF’s proposed new
expansion would violate the boundary line conditions stipulated in the 1993 major conditional use permit,
did not, in my opinion, operate as a license for any member of the Oak Meadows Subdivision to enforce
compliance.
¶19.
While the 1993 major conditional use permit provides that all conditions contained therein would
be permanent restrictions on the entire development, it also provided that the restrictions could only be
modified, altered, or changed by the consent of the majority of the Oak Meadows Homeowner’s
Association. Clearly, the restrictions which were placed in the 1993 major conditional use permit were
placed there for the benefit of the members of the Oak Meadows Homeowner’s Association collectively,
not individually. There is nothing in the record to indicate that either one or both of the Appellants
constitute a majority of the Oak Meadows Homeowner’s Association, nor is there anything in the record
to indicate that either or both of the Appellants have been authorized to speak or act for the Association.
Therefore, it seems to me that while the Appellants have standing to challenge any alleged noncompliance
with Tupelo Development Code § 5.4.7, any challenge based on noncompliance with the specific
conditions of the 1993 major conditional use permit would have to be brought by a majority of the
members of the Oak Meadows Homeowner’s Association. Since the Appellants do not constitute a
majority of the Oak Meadows Homeowner’s Association, I do not believe they have standing to lodge a
challenge of noncompliance with the conditions placed in the 1993 major conditional use permit.
ISHEE, J., JOINS THIS SEPARATE WRITTEN OPINION IN PART.
KING, C.J., DISSENTING:
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¶20.
I dissent from the majority opinion herein. I find merit in Beasley’s third issue, and would therefore
reverse and render. That issue as stated by Beasley is, “Must the approval of Tupelo Furniture Market’s
Conditional Use Application be reversed based on the failure of Tupelo Furniture Market to obtain the
requisite majority consent of the Oak Meadows Homeowner’s Association?”
¶21.
The relevant language regarding the approval of the conditional use by the Oak Meadows
Homeowner’s Association, as set forth in the record, is as follows: That these conditions would be placed
as permanent restrictions on the entire development, and could only be modified, altered, or changed
by consent of the majority of the Oak Meadows Homeowner’s Association and whichmay be enforced
by said association. This language is clear and unambiguous, and contrary to the actions of the city council,
the circuit court, and this Court requires no interpretation.
¶22.
The majority apparently sees ambiguity in the emphasized language, and thus proceeds to interpret
it. As a validation of its interpretation, the majority, in paragraph 16, states, “Furthermore, when a provision
of an official enactment by a municipality is subject to more than one interpretation,‘the best interpretation
of what the wording in the ordinance means is the manner in which it is interpreted and applied by the
enacting and enforcement authorities.’ Faircloth v. Lyles, 592 So. 2d at 945.” While the majority has
correctly quoted the law, it has in
my judgement misapplied the law.
¶23.
The language which is the subject of the majority’s application of Faircloth is “and could only be
modified , altered, or changed by consent of the majority of the Oak Meadows Homeowner’s Association
. . . .” This language is clear and unambiguous, and therefore requires no interpretation.
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¶24.
The majority opinion continues its misapplication of the law by also stating in paragraph 16,
“Furthermore, the Mississippi Supreme Court has held that ‘[i]n an election, those who are indifferent to
the election to the extent that they do not go and vote are not entitled to control the result of those who vote
in the election, and the result is obtained by the majority who vote in the election and not by a majority of
all the voters of the municipality.’ In re Validation of Municipal Bonds of Natchez, 188 Miss. 817, 835;
196 So. 258, 263 (1940).”
¶25.
The court’s decision in In re validation of Municipal Bonds of Natchez must be read in light of
the nature of the case. This was a case objecting to the validation of bonds being issued by the City of
Natchez. These bonds were being issued under a statute, the relevant portion of which stated, “Provided,
that in any election for the purpose of issuing bonds for water and light purposes or for the construction of
special improvements primarily chargeable to the property benefitted, or for the purpose of paying the city’s
proportion of any betterment program, a portion of which is primarily chargeable to the property benefitted,
then a majority of the electors voting in said election shall be sufficient to authorize the issuance of said
bonds, etc . . . .” Id., 188 Miss at 883-4, 196 So. at 262 When placed in proper context, this case does
not support the majority decision.
¶26.
Contrary to the majority’s representation, there was no legal requirement that Beasley go out and
vote against the conditional use. Instead, under the plain language of the agreement, the burden was placed
upon the Tupelo Furniture Market to obtain the consent of a majority of the members of the Oak
Meadows Homeowner’s Association for its conditional use. It did not obtain the consent of the majority
of the members of the Oak Meadows Homeowner’s Association. For this reason, I would reverse and
render.
LEE, P.J., JOINS THIS OPINION.
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