Citizens Ass'n for Responsible Development, Inc. v. Conrad Yelvington Distributors, Inc.

859 So. 2d 361, 2003 Miss. LEXIS 597, 2003 WL 22510382
CourtMississippi Supreme Court
DecidedNovember 6, 2003
Docket2002-CC-00623-SCT
StatusPublished
Cited by10 cases

This text of 859 So. 2d 361 (Citizens Ass'n for Responsible Development, Inc. v. Conrad Yelvington Distributors, Inc.) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Citizens Ass'n for Responsible Development, Inc. v. Conrad Yelvington Distributors, Inc., 859 So. 2d 361, 2003 Miss. LEXIS 597, 2003 WL 22510382 (Mich. 2003).

Opinion

859 So.2d 361 (2003)

CITIZENS ASSOCIATION FOR RESPONSIBLE DEVELOPMENT, INC.
v.
CONRAD YELVINGTON DISTRIBUTORS, INC., Harrison County Development Commission and Harrison County.

No. 2002-CC-00623-SCT.

Supreme Court of Mississippi.

November 6, 2003.

*363 Reilly Morse, Gulfport, attorney for appellant.

Harry R. Allen, Joseph R. Meadows, Karen J. Young, Gulfport, Britt R. Singletary, Gary Dale Thrash, Jackson, David W. Crane, Gulfport, Glen K. Till, attorneys for appellees.

Before SMITH, P.J., CARLSON and GRAVES, JJ.

GRAVES, Justice, for the Court.

¶ 1. This appeal arises from the decision of the Circuit Court of Harrison County, Mississippi, First Judicial District, affirming the actions of the Harrison County Board of Supervisors ("the Board") and its governmental subdivision, Harrison County Development Commission ("HCDC"), authorizing the sale of county property to Conrad Yelvington Distributors, Inc. ("Yelvington") for use as an aggregate distribution plant. The objectors to the sale, Citizens Association for Responsible Development, Inc. ("CARD") assert six issues on appeal: (1) the decision by Harrison County and HCDC to allow CYI's outdoor aggregate distribution terminal into a light industrial park violated the land use provisions *364 of the ordinance creating the Long Beach Industrial Park; (2) the decisions of Harrison County and HCDC do not contain sufficient detail as to the findings or reasoning to permit judicial review; (3) the record lacks proof or findings that vibrations and impacts upon property values were adequately considered by the Board; (4) the record lacks findings and proof that noise impacts were minimal or were adequately mitigated; (5) the conclusion that impacts from silica dust were insignificant is not supported by the record; and (6) the conclusion that the transaction was valid and supported by adequate consideration is both legally and factually erroneous.

¶ 2. We find that the circuit court did not err in concluding that the decision of Harrison County and the Harrison County Development Commission was not arbitrary or capricious and was supported by adequate consideration. Therefore, we affirm the circuit court's judgment.

FACTS

¶ 3. By a Bill of Exceptions filed pursuant to Miss.Code Ann. § 11-51-75 (Rev. 2002), the Citizens Association for Responsible Development, Inc. ("CARD") appealed the conveyance of county-owned property in the Long Beach Industrial Park to Conrad Yelvington Distributors, Inc. ("Yelvington"). CARD's members include residents of neighborhoods near the Industrial Park which was created in the early 1970's to encourage and foster the location and growth of industry in the county. The Industrial Park is located in an unincorporated part of Harrison County governed by the Board of Supervisors who have legal authority to convey county-owned property. The Harrison County Development Commission ("HCDC") is a governmental subdivision of Harrison County.

¶ 4. In January 1999, Yelvington began negotiating with HCDC to acquire land in the Industrial Park for its aggregate distribution facility, in large part because the Industrial Park has a railroad spur necessary to the efficient operation of Yelvington's business. Fearing that excessive noise, vibrations and air pollution from silica dust would emanate from Yelvington's facility, CARD expressed concern about the location of such a business in the Industrial Park.

¶ 5. The Harrison County Board of Supervisors held three hearings on the matter, giving proponents and opponents of the sale full opportunity to be heard and present evidence supporting their respective positions. In addition to hearing from experts presented by Yelvington on the issues raised by CARD, the Board engaged experts of its own to assist in analyzing the impact of the Yelvington plant on the surrounding area. The Board also personally visited the Yelvington plant and observed its normal operations before finally deciding to convey the property to Yelvington. Although Harrison County had no comprehensive zoning ordinance in effect at the time of the conveyance to Yelvington, the Board of Supervisors attempted to satisfy the concerns of CARD by placing a number of restrictions upon the use of the property conveyed to Yelvington. In addition, the County persuaded Yelvington to agree to record a covenant restricting use of its privately owned 18 acres of property located just outside the park.

¶ 6. On March 19, 2002, the circuit court entered an order addressing these issues. The court, finding no error of law in the proceedings below nor in the record made before the Board of Supervisors, found that the decision of the Board was reasonably debatable and that it was supported by substantial evidence, and therefore affirmed the decision of the Board to convey *365 property in the Long Beach Industrial Park to Yelvington.

DISCUSSION

I. WHETHER THE DECISION BY HARRISON COUNTY AND HCDC TO ALLOW YELVINGTON'S OUTDOOR AGGREGATE DISTRIBUTION TERMINAL INTO A LIGHT INDUSTRIAL PARK VIOLATED THE LAND USE PROVISION OF THE ORDINANCE CREATING THE PARK.

¶ 7. In reviewing an administrative agency's findings of fact, our courts are limited by the arbitrary and capricious standard of review. Bd. of Supervisors of Harrison County v. Waste Management of Miss., Inc. 759 So.2d 397, 400 (Miss.2000) (citing McDerment v. Miss. Real Estate Comm'n, 748 So.2d 114, 118 (Miss.1999)). An action is arbitrary or capricious if the agency "entirely failed to consider an important aspect of the problem, or offered an explanation for its decision that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Miss. Dep't of Envtl. Quality v. Weems, 653 So.2d 266, 281 (Miss.1995).

¶ 8. CARD argues that the decision by Harrison County and HCDC to allow Yelvington's outdoor aggregate distribution terminal into a light industrial park violated the land use provisions of the ordinance creating the Long Beach Industrial Park.

¶ 9. The Long Beach Industrial Park was created pursuant to resolutions of HCDC and the Board of Supervisors. In support of its resolutions, HCDC and the Board of Supervisors adopted and approved a feasibility study prepared by Brown and Russell, Inc. The report states in part:

The proposed industrial development has been discussed with officials of the Gulf Regional Planning Committee (GRPC) and they stated that they would have no objections to an industrial park developed for light industry provided protective covenants were used to insure that the industrial park would not destroy the surrounding area as a residential section." The report further states: "The park is to be developed to attract light industry that will be compatible with the surrounding residential areas. Thus the industry should be of a type which does not present a problem by discharging air or water pollutants, create excessive noise, nor give off offensive odors. These factors should dictate the type of industry allowed within the park.

¶ 10. CARD attempts to impose a zoning regulation upon HCDC by citing the resolutions of HCDC and the Board authorizing the creation of the Park. This attempt is made by referencing the abovementioned language which was contained in the Brown and Russell feasibility study.

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Bluebook (online)
859 So. 2d 361, 2003 Miss. LEXIS 597, 2003 WL 22510382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/citizens-assn-for-responsible-development-inc-v-conrad-yelvington-miss-2003.