Beasley v. Neelly

911 So. 2d 603, 2005 WL 2209541
CourtCourt of Appeals of Mississippi
DecidedSeptember 13, 2005
Docket2004-CA-00458-COA
StatusPublished
Cited by3 cases

This text of 911 So. 2d 603 (Beasley v. Neelly) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beasley v. Neelly, 911 So. 2d 603, 2005 WL 2209541 (Mich. Ct. App. 2005).

Opinion

911 So.2d 603 (2005)

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, Appellees.

No. 2004-CA-00458-COA.

Court of Appeals of Mississippi.

September 13, 2005.

*605 Richard Shane McLaughlin, Tupelo, attorney for appellants.

Guy W. Mitchell, III, Michael D. Chase, Tupelo, Gary L. Caranthan, attorneys for appellees.

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 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 *606 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;
(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.

*607 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 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."

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Bluebook (online)
911 So. 2d 603, 2005 WL 2209541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beasley-v-neelly-missctapp-2005.