Allan K. Hearne v. City of Brookhaven, Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-CA-01869-COA
ALLAN K. HEARNE
v.
CITY OF BROOKHAVEN, MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
APPELLANT
APPELLEE
10/11/2000
HON. MIKE SMITH
LINCOLN COUNTY CIRCUIT COURT
DALE. F. SCHWINDAMAN JR.
JOSEPH A. FERNALD JR.
CIVIL - STATE BOARDS AND AGENCIES
AFFIRMED DECISION OF MAYOR AND BOARD OF
ALDERMEN OF BROOKHAVEN
DISPOSITION:
AFFIRMED - 03/12/2002
MOTION FOR REHEARING FILED: 3/25/2002; denied 5/21/2002
CERTIORARI FILED:
5/30/2002; denied 8/29/2002
MANDATE ISSUED:
BEFORE KING, P.J., THOMAS, MYERS, AND BRANTLEY, JJ.
BRANTLEY, J., FOR THE COURT:
¶1. The Circuit Court of Lincoln County affirmed the City of Brookhaven's decision to deny Dr. Allen
Hearne's petition to practice psychology in a neighborhood zoned solely for residential purposes.
Aggrieved, Hearne appeals. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Dr. Allen Hearne maintains a practice as a psychologist in the city of Brookhaven. In January of 1997,
Hearne purchased a residence at 1001 North Jackson Street in Brookhaven in an area zoned "R-1" (single
family residence).
¶3. From January 1997, until June 1999, Hearne had used this location as an office in violation of the R-1
zoning restriction. During this time, the City was unaware of Hearne's commercial use of the property. While
Hearne alleged that he purchased the property for an office, documents filed with the municipality indicated
that the property was intended to be used as a single family residence. Hearne had filed for privilege
licenses that indicated he maintained his practice at two other locations within commercial zones. According
to documents in the record, Hearne also listed two additional addresses as his place of residence during this
time. In May of 1998, a fire substantially damaged the subject property. In documents filed with the City for
a building permit, Hearne stated that the subject property would be used as a single-family residence, not a
business. He also listed a different address as his home on the permit application. In June 1999, the City of
Brookhaven became aware of his office in the residential neighborhood and promptly informed him that he
could not practice at that residence in violation of the zoning ordinance for the district.
¶4. In October 1999, Hearne petitioned Brookhaven's Board of Adjustment for a special exception to the
R-1 zoning restriction based on his allegation that he was entitled to such exception for a "home occupation"
as defined in the Brookhaven Zoning Ordinance Section 1301.53. After a hearing on November 23, 1999,
the board of adjustment denied his petition. Dr. Hearne appealed this decision to the mayor and the board
of aldermen (City Board).
¶5. Notice of the appeal hearing was given fifteen days prior to the hearing stating the date, time, and place
as set forth in Miss. Code Ann. § 17-1-17 (Rev. 1979). The published notice incorrectly identified the
subject matter of the hearing as a petition to rezone Hearne's property "from R-1 to C-1" instead of
describing his petition as a "home occupation exception" to the R-1 zone.
¶6. On April 12, 2000, the appeal was heard "de novo" before the City Board. All interested parties were
represented at the hearing. The Board clarified that the purpose of the hearing was to decide if the property
could be designated as a home occupation exception to the R-1 zone, not to rezone the subject property
from R-1 to C-1. Hearne never questioned the content of the notice and proceeded with the hearing. After
testimony by Hearne, the adjacent land owners, and other interested parties, the City Board voted
unanimously to deny Hearne's request.
¶7. On April 25, 2000, Hearne filed his bill of exception with the circuit court alleging that the City Board's
decision was contrary to the weight of the evidence, was not supported by substantial evidence, and should
be voided because of procedural deficiencies. A hearing was conducted on September 5, 2000, and the
court issued its letter opinion and order on October 11, 2000, affirming the City Board's decision to deny
Hearne's request because the court found that the record provided not only substantial evidence to support
the City Board's decision, but the greater weight of the evidence showed Hearne did not comply with the
zoning ordinance.
ISSUES PRESENTED
I. WHETHER THE CIRCUIT COURT EMPLOYED AN IMPROPER STANDARD OF
APPELLATE REVIEW.
II. WHETHER NOTICE WAS DEFICIENT.
III. WHETHER THE BOARD APPLIED AN INCORRECT LEGAL STANDARD.
IV. WHETHER THE BOARD ACTED ARBITRARILY AND CAPRICIOUSLY IN ITS
RULING.
ANALYSIS
I. WHETHER THE CIRCUIT COURT EMPLOYED AN IMPROPER STANDARD OF
APPELLATE REVIEW.
¶8. Hearne contends that the circuit court did not follow the proper standard of review because it failed to
mention its duty to reverse and remand for legal errors. Hearne contends that two legal deficiencies existed
which required the circuit court to reverse and remand. First, Hearne contends that the discrepancy in the
notice renders the City Board's decision void as a matter of law. Second, Hearne contends that the City
Board applied an incorrect legal standard to its decision.
¶9. Unlike decisions to zone or re-zone, which are legislative in nature, decisions on requests for special
exceptions are adjudicative, and a reviewing court thus subjects such decisions to the same standard as is
applied to administrative agency adjudicative decisions. Bowling v. Madison County Board of
Supervisors, 724 So. 2d 431, 436 (¶22) (Miss. App. Ct.1998). The proper standard of review is set forth
in Hooks v. George County:
The 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 constitutional or statutory rights of the aggrieved party. Board of Law
Enforcement Officers Standards & Training v. Butler, 672 So. 2d 1196, 1199 (Miss. 1996).
Substantial evidence has been defined as "such relevant evidence as reasonable minds might accept as
adequate to support a conclusion" or to put it simply, more than a "mere scintilla" of evidence.
Johnson v. Ferguson, 435 So. 2d 1191, 1195 (Miss. 1983).
Hooks v. George County, 748 So. 2d 678, 680 (¶10) (Miss. 1999). While factually-based decisions are
not reversed unless the decision is not founded on substantial evidence or is arbitrary or capricious, legal
errors are readily reversible and subject to a de novo review. ABC Mfg. Corp. v. Doyle, 749 So. 2d 43,
45 (¶10) (Miss. 1999).
¶10. The circuit court properly applied this standard of review to the decision of the City Board. Although
the trial judge did not articulate in his standard of review his duty to reverse for legal errors, his letter of
opinion provides evidence that the circuit court reviewed Hearne's claims of legal deficiency de novo. After
reviewing the facts, evidence, and documentation in the record, the trial judge addressed why the
discrepancy in the notice did not render it defective and explained that an incorrect legal standard was not
the City Board's basis for its denial of Hearne's petition. After finding no legal errors had occurred, the trial
judge reviewed the City Board's decision and concluded that their decision was supported by substantial
evidence and that it was not arbitrary or capricious. Hooks, 748 So. 2d at 680 (¶10). Therefore, this
assignment of error is without merit.
II. WHETHER NOTICE WAS DEFICIENT.
¶11. The published notice incorrectly identified the subject matter of the hearing as a petition to rezone
Hearne's property "from R-1 to C-1", instead of describing his petition as a "home occupation exception" to
the R-1 zone. The discrepancy in the notice did not render the notice defective as a matter of law. Sufficient
notice was given to confer upon the City Board jurisdiction over the parties' interests. The notice was
properly published fifteen days in advance stating the date, time, and place of the hearing. Miss. Code Ann.
§ 17-1-17 (Rev. 1979). The notice adequately advised the community at large that there was a pending
change contemplated to the zoning ordinance on the subject property. The record reflects that all interested
parties were well represented at the hearing and that Hearne, the community, and the landowners
surrounding the property knew the purpose of the hearing. The purpose of the hearing was clarified by the
Board as a special use exception without comment by Hearne.
¶12. Hearne argued at the circuit court level that this discrepancy in the legal description rendered the notice
defective. Hearne made no attempt to raise the issue of defective notice during the April 12, 2000 appeal
hearing before the City Board. Hearne's appearance at the hearing waived any objections he might have
had to the form of notice. Ridgewood Land Co., Inc. v. Simmons, 243 Miss. 236, 137 So. 2d 532, 538
(1962). This assignment of error is procedurally barred from review by this Court.
III. WHETHER THE BOARD APPLIED AN INCORRECT LEGAL STANDARD.
¶13. Hearne asserts that the Board, in making its decision, applied an additional legal requirement not
specified in the home occupation exception factors in Brookhaven Zoning Ordinance Section 1301.53.
Hearne asserts that this alleged illegal consideration was whether a "change in the neighborhood's character"
had occurred.
¶14. The Brookhaven Zoning Ordinances that govern special use exceptions are found at § 1301.99, which
defines the exceptions, § 1301.53 which defines the elements of the home use exception and § 901.01 and
§ 901.02, which set out the procedural requirements. Section 901.01 of the zoning ordinance authorizes the
Board to grant special exceptions and decide whether or not granting the exception will adversely affect the
public interest. Section 901.02 requires general compatibility with adjacent properties and other property in
the district so as not to be detrimental to uses allowed by right in the district.
¶15. Section 1301.99 defines a "special exception" as a use that would generally not be appropriate
throughout a zoning district but, if permitted, would promote, the public health, safety, welfare, morals,
order, comfort, convenience, appearance, prosperity, or general welfare. The specific rules governing the
home occupation exception are set forth in § 1301.53(1) of the Brookhaven Zoning Ordinance. Section
1301.53 provides that in order to qualify, a home occupation must not involve ten different conditions
which are all inclusive. Failure to comply with one, all or any combination of the ten conditions constitutes a
bar to the home occupation special exception.
¶16. The Board applied the proper legal standard in making its decision to deny Hearne's request. The
adopted letter of Alderman Buddy Allen was a clear statement of Dr. Hearne's failure to meet the test set
forth in sections 1301.99, 1301.53, 901.01, and 901.02 of the zoning ordinances. The Board's decision
specifically stated that Hearne's petition should have been denied because it did not comply with the
requirements of the home owner's occupation exception of § 1301.53 for the following three reasons: he
does not live on the premises, he is using more than one room, and non-family members are required to run
this business.
¶17. Further, the City Board considered the official records of the municipality when Hearne had been less
than candid and misleading as to the location of his office, home and the contradictory character of the
"subject property" as a home or office.
¶18. Following sections 901.01 and 901.02, the Board also discussed whether the effects of the exception
would be inconsistent or adverse to the master plan of the neighborhood and the public's interest. The
Board did not deny his request on the basis of whether the neighborhood's character had changed.
Hearne's contention is misplaced. The Board considered the neighborhood's character to see if there was
any other possibility that would allow the exception to be granted. They also were concerned that allowing
changes would be adverse to the public's interest and may ultimately change the neighborhood.
¶19. The Board found that Dr. Hearne failed to comply with the occupation exception. It also found that
Dr. Hearne was misleading in his testimony and found no other possibility to allow the exception to be
granted. Therefore, this assignment has no merit.
IV. WHETHER THE BOARD ACTED ARBITRARILY AND CAPRICIOUSLY IN ITS
RULING.
¶20. The City Board stated the following three specific findings of fact which violated the home occupation
exception of section 1301.53 of the Brookhaven Zoning Ordinance: 1) Hearne does not live there; 2) nonfamily members will be required to operate the business; and 3) his practice will use more than one room.
¶21. Hearne contends that the Board's decision of his noncompliance was not supported by substantial
evidence. Hearne argues that there is no expressed requirement in § 1301.53 that he reside there. He also
states that he is in compliance with the Board's second asserted violation because he does not employ help
other than the resident family. Finally, he claims that he only uses one room for his practice. He also
contends that the overwhelming weight of the evidence demonstrates that he satisfied all ten requirements of
Section 1301.53 because he testified that he was ready and willing to comply with all conditions set forth
under Section 1301.53 to attain his home occupation special use exception.
¶22. "If the Board's decision is founded on substantial evidence, and is not arbitrary or capricious, it is
binding on [this] [C]ourt." Bowling v. Madison County Bd. of Supervisors, 724 So. 2d 431, 436 (¶22)
(Miss. Ct. App. 1998). Hearne needs only to fail one requirement of section 1301.53 in order to not
comply with the home owner exception.
a) Owner must reside there
¶23. This requirement is not expressly stated in section 1301.53. Hearne argues that had Brookhaven
wanted to require the owner of the subject parcel to also reside there in order to qualify for the "home
occupation" special use exception, it should have specified this condition in its ordinance, and cannot now
do so by implication.
¶24. Municipal ordinances and regulations must be reasonable, otherwise they will be void and
unenforceable, and the question of their reasonableness is a judicial question. Jones v. City of
Hattiesburg, 207 Miss. 491, 42 So. 2d 717 (1949). The title of the exception, "home occupation"
establishes the owner as the resident. Black's Law Dictionary defines "home" as: [o]ne's own dwelling
place; the house in which one lives, especially the house in which one lives with his family. That place in
which one in fact resides with the intention of residence. . . ." Black's Law Dictionary 733 (6th ed. 1990).
¶25. Therefore, a reasonable interpretation of the purpose of the ordinance is that a home owner applies for
the exception to work at his home where he resides. Concluding that the owner does not have to live at his
residence would frustrate the very purpose of the home owner's exception.
¶26. The record indicated that the property at 1001 N. Jackson does not serve as his residence. He
testified that he did not reside there and exhibits entered into evidence such as the license application and his
own check indicated that he resided at different locations other than the subject property.
b) Employment of help other than members of the resident family is prohibited
¶27. Hearne argues that he does not violate this requirement because his employee will be the resident. A
strict interpretation places no restriction on the relation of the employer. It expresses employees must be
related to the resident family.
¶28. The City Board based their decision on the reasonable interpretation that Hearne was required to be
the resident; therefore, two unrelated individuals worked at the residence in violation of the ordinance. The
proof is uncontradicted that his employee, his secretary, has no relation to him either by blood or marriage.
c) Use of more than one room is prohibited
¶29. Hearne argues that he will comply with this requirement. The fact is at the time of the Board's decision,
he did not. Hearne's own testimony was that he used three rooms: a porch for his receptionist, a room for
his office at the north end of the first floor, and a dining room to store files in. Furthermore, the City building
inspector testified that the big room at the front door had a desk and a large coffee pot and that there was
an office to the north end. He also testified that another room contained nine plastic white chairs. These
three areas were separate rooms. Also, there were indications that the building in the back was being used
for alcoholic anonymous meetings. Advertisements appeared in the newspaper posting that address as a
location for the meetings and there was a sign at the back building that said "alcoholic beverages not
allowed." There is substantial evidence to support the City Board's decision and this assignment of error has
no merit.
¶30. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING, MYERS AND CHANDLER, JJ., CONCUR.
1. A home occupation is a commercial enterprise conducted in a dwelling unit, WHICH DOES NOT
INVOLVE (1) employment of help other than members of the resident family, (2) sales of
products or services not produced or provided on the premises, (3) generation of pedestrian or
vehicular traffic beyond that usual in and reasonable to the district in which the dwelling unit is located,
(4) use of commercial vehicles for delivery of material to or from the premises, (5) outdoor storage of
materials and/or supplies, (6) use of signs other than those permitted in the district of which the
dwelling is a part, (7) use of any building or space outside the main dwelling unit building, (8)
use of more than one room in the dwelling, (9) any visible or audible evidence on the outside of the
dwelling unit of the conduct of a home occupation with or that the structure is used otherwise than
exclusively for residential purposes (either by color, materials or construction, lighting, signs, sound of
noises, or vibrations), or (10) use of utilities or community facilities beyond those reasonable and
customary for property used exclusively for residential purposes. The operation of beauty culture
schools, beauty parlors or barber shops shall not be considered a home occupation. (emphasis
added).
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