Charles Gallagher v. City of Waveland, Mississippi

182 So. 3d 471, 2015 Miss. App. LEXIS 274, 2015 WL 3544443
CourtCourt of Appeals of Mississippi
DecidedMay 19, 2015
Docket2013-CP-00273-COA
StatusPublished
Cited by9 cases

This text of 182 So. 3d 471 (Charles Gallagher v. City of Waveland, Mississippi) 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
Charles Gallagher v. City of Waveland, Mississippi, 182 So. 3d 471, 2015 Miss. App. LEXIS 274, 2015 WL 3544443 (Mich. Ct. App. 2015).

Opinions

GRIFFIS, P.J.,

for the Court:

¶ 1. Charles and Anita Gallagher appeal the ruling of the Hancock County Circuit Court that affirmed the decision of 'the City of Waveland to approve a proposed preliminary plat for a subdivision. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. In 2010, KBM LLC submitted a preliminary plat for a planned subdivision in Waveland, Mississippi. KBM intended to create a seventeen-lot subdivision on an area of land between Moliere Drive and Central Avenue.

,¶3. KBM submitted the plan to the Planning and Zoning Board requesting approval of the subdivision, an extension of the cul-de-sac variance from 600 feet to 1,213 feet, and approval of an extended construction time from one year to five years.

¶ 4. The planning board approved KBM’s requests, except the planning board allowed for a two' year construction-time extension rather than the requested five years, and recommended approval of the preliminary plat to the City’s. Board of Aldermen (the “Board”).

¶ 5. On May 24, 2010, the Board held a public hearing regarding final approval of KBM’s preliminary plat. - The Gallaghers, along with others who lived along Moliere Drive, attended the hearing and opposed final approval of the preliminary plat until >KBM and the City provided further information.

¶ 6. The Gallaghers’ primarily objected to a change from KBM’s initial plan. KBM originally placed the entrance to the proposed subdivision on one side of the land,"which led onto' Central Avenue, but changed the entrance to Moliere Drive. On June 1, 2010, the Board hpproved the preliminary plat with the entrance to the subdivision on Moliere Drive.

¶ 7. On June 11, 2010, the Gallaghers and others residents on Moliere Drive1 filed a notice of appeal and a, proposed bill of. exceptions in the Circuit .Court of Hancock County. The Gallaghers submitted a motion for a writ of mandamus.and motion to compel in order to get certain documents from the City and to get the City to either sign their proposed bill of exceptions or agree, to an amended version to continue with the appeals process, The [474]*474Gallaghers submitted an amended bill of exceptions to the circuit court without agreement from the City.

¶ 8. On March 13, 2011, the City filed its motion to dismiss and to strike the Gallaghers’ motion for a writ of mandamus. The circuit court issued an order on March 28, 2012, which dismissed the City’s motions and required the City and the Gallaghers to submit an agreed bill of exceptions within thirty days of the order.

¶ 9. The parties, however, could not agree. The City submitted its bill of exceptions on April 27, 2012. The Galla-ghers followed with a second amended bill of exceptions on April 30,2012.

¶ 10. The circuit court signed an agreed order on May 3, 2012, to extend the time for the parties to agree on a bill of exceptions, However, on May 17, 2012, the City submitted a motion to declare the City’s bill of exceptions as the record and a motion to strike the Gallaghers’ bills of exceptions. The circuit court, on June 18, 2012, issued an order, which adopted the City’s bill of exceptions as the record.

¶ 11. The circuit court affirmed the decision of the City and Board on January 11, 2013. The Gallaghers argue on appeal that (1) the bill of exceptions adopted by the circuit court was inadequate; (2) the Board’s approval of the preliminary plat was arbitrary and capricious; (3) the Board improperly rezoned two residential lots; (4) the Board impropei-ly approved a deficient proposed preliminary plat; and (5) the Board’s decision deprived the Galla-ghers of their statutory and constitutional due-process rights.

ANALYSIS

I. Whether this Court has subject-matter jurisdiction to hear tKe merits of this case.

¶ 12. There are two issues about this Court’s jurisdiction over this appeal. First, as is often the case in appeals such as this, the preparation and production of a record, i.e., the bill of exceptions, created a controversy. The Gallaghers maintain that the bill of exceptions adopted by the circuit court omitted several documents that require review by this Court. Second, the City argues that the Gallaghers failed to preserve any issues in this appeal when the notice of appeal omitted a statement of issues.

A. The Bill of Exceptions

¶ 13. Though neither the Galla-ghers nor the City argues this Court lacks jurisdiction regarding the bill of exceptions, “[this Court] must be constantly aware of questions of [its] jurisdiction to proceed and must be prepared to decide a question pertaining to jurisdiction at any time, even if the court must raise the issue on its own motion.” McKee v. City of Starkville, 97 So.3d 97, 100-01 (¶¶ 10-11) (Miss.Ct.App.2012) (quoting Dunaway v. Dunaway, 749 So.2d 1112, 1120 (¶ 25) (Miss.Ct.App.1999)).

¶ 14. Mississippi Code Annotated section 11-51-75 (Rev.2012) mandates that an appeal from a board decision occur “within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision, and may embody the facts, judgment and decision in a bill of exceptions.... ”

¶ 15. “The bill of exceptions serves as the record on appeal, and the circuit court may only consider the case as made by the bill of exceptions.” McKee, 97 So.3d at 100(8) (quoting Wilkinson Cnty. Bd. of Sup’rs v. Quality Farms Inc., 767 So.2d 1007, 1011 (¶ 11) (Miss.2000)). “[A] proper bill of exceptions on appeal is necessary to confer jurisdiction on the appellate court.” Wilkinson Cnty. Bd. of [475]*475Sup’rs, 767 So.2d at 1012 (¶ 14) (citation omitted). Further, “[a]ppellate review of an agency’s decision .is limited to the record and the agency’s findings.” Miss. Waste of Hancock Cnty. Inc. v. Bd., of Sup’rs of Hancock Cnty., 818 So.2d 326, 330(6) (Miss.2001) (citation omitted).

. ¶ 16. Similar to Wilkinson County and McKee, this case involves a dispute over the proper bill of exceptions. While the court in Wilkinson County dismissed- the appeal for lack of subject-matter jurisdiction due to a defective bill of exceptions, this Court allowed an appeal to proceed on a technically defective bill of exceptions in McKee.

1117. In McKee, this Court distinguished the case from Wilkinson County when it ruled:

While neither McKee nor the City complied with the procédural requirements set forth-in Wilkinson, the bills of exceptions filed with the circuit court contained the “pertinent and important facts and documents” and constituted “a record upon which (the court could) intelligently act.” Wilkinson, 767 So.2d at 1012 (¶ 14). Furthermore, the supreme court has previously addressed the merits of an appeal where there were two bills of exceptions before the circuit court — one filed by local residents without the mayor’s signature and another filed by the Board of Aldermen with the mayor’s signature. See Hall v. City of Ridgeland, 37 So.3d 26, 32 (¶ 17) (Miss.2010). Therefore, under these facts, we decline to dismiss for lack of subject matter jurisdiction.

McKee, 97 So.3d at 101(11).

¶18.

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