Como Steak House, Inc. v. Board of Supervisors of Panola County, Mississippi

200 So. 3d 417, 2016 Miss. LEXIS 383, 2016 WL 4919428
CourtMississippi Supreme Court
DecidedSeptember 15, 2016
DocketNO. 2014-SA-01514-SCT
StatusPublished
Cited by6 cases

This text of 200 So. 3d 417 (Como Steak House, Inc. v. Board of Supervisors of Panola County, Mississippi) 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
Como Steak House, Inc. v. Board of Supervisors of Panola County, Mississippi, 200 So. 3d 417, 2016 Miss. LEXIS 383, 2016 WL 4919428 (Mich. 2016).

Opinion

DICKINSON, PRESIDING JUSTICE,

FOR THE COURT:

¶1. H&G Land Company, L.P. (“H&G”), filed an application with the Panola County Land Development Commission (“the Commission”) for a special exception to Panola County’s Land Use District Ordinance (“the Ordinance”) to extract sand and gravel on its property. When the Commission failed to approve the request, H&G appealed to the Panola County Board of Supervisors (“the Board”), which reversed the Commission. This appeal followed. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2. In areas zoned “Agricultural,” the Ordinance provides for permitted uses, and uses permitted by special exception. An owner of agriculturally zoned property may apply for a special exception permit *419 for the “extraction of ... gravel ... provided a reclamation plan is submitted and approved by the ... Commission.” According to the Ordinance, the Commission, or the Board — in considering whether to grant a special exception—

shall investigate all aspects of the application giving particular regard as to whether such a building or use will:
(a) [substantially increase traffic hazards or congestion[,]
(b) [substantially increase fire hazards[,]
(c) [adversely affect the character of the neighborhood[,]
(d) [adversely affect the general welfare of the county[,]
(e) [o]vertax public utilities or facilities[, and]
(f) [b]e in conflict with the goals of [the] Progress Panola General Development Plan.

And “any party aggrieved by any final action, decision, ruling, judgment, or order of the ... Commission may appeal to the ... Board ... within ten calendar days of such decision.”

¶3. H&G entered into a lease agreement with APAC-Mississippi, Inc. • (“APAC”), whereby APAC would operate an asphalt plant and mining operation on H&G’s land for a period of twenty years. H&G then filed an application for a special exception to extract sand and gravel on its property. The application included documentation concerning property, including ownership, government permits, insurance, a bond for reclamation of the property, and site proposals; Thereafter, the Commission held a series of hearings to consider H&G’s application. At the last hearing, the Commission denied the application and informed H&G that it could appeal to the Board. 1

¶4. Two days later, H&G — along -with APAC — notified the Commission that it wished to appeal the “Commission’s failure to approve” its application to the Board. At its next regularly scheduled meeting, the Board held a hearing to consider H&G’s request. Several local businesses and residents attended the meeting to oppose H&G’s request, so the Board permitted each side — the applicant and those opposed — thirty minutes to present their arguments.

¶5. Following each side’s presentation, the Board voted to approve H&G’s application. The Board’s order approving H&G’s special exception stated:

ORDER OF THE BOARD OF SUPERVISORS
On August 12, 2013, there came on for consideration by the Board ..., an appeal filed by H&G ... and APAC ... of a decision by the ... Commission rendered July 8, 2013, denying the application fór a special exception. Presentations were made' by Mike Graves, attorney for H&G ... and APAC ... and David Slocum, attorney for a group citizens from the Como, Mississippi' area. Testimony was offered by Jerry Brewer concerning the effect of mining operations on property values. A copy of the curriculum vitae of [] Brewer is incorporated in the record of these proceedings. Testimony was also offered by Earnestine Bridgforth of Cistern Hill M.B. Church, James May, Tim Rakes-traw of APAC ... Nolan West of H&G ... and other individuals attended the meeting.
H&G ... and APAC ... presented a notebook with 29 tabbed entries, which is incorporated into the record of these *420 proceedings. The Concerned Citizens of Como, Mississippi, also presented a booklet with correspondence and petition with affidavits, which is incorporated into the record of these proceedings.
After discussion, Supervisor Flint made a motion to approve the application for special exception for twenty (20) years with hours of operation from 6:00 A.M. to 6:00 P.M., Monday through Saturday, and that the application was to conform to the site plan submitted by the applicants. Supervisor Thomas seconded the motion and a roll call vote was held. Supervisors Flint, Thomas, and Morris voted in favor of the motion. Supervisor Birge voted against the motion. Supervisor Avant was absent due to illness.
IT IS THEREFORE ORDERED by the Board ... that the decision of the [ ] Commission dated July 8, 2013, denying the application of H&G ... for a special exception in an agricultural district for a gravel mine, hot mix asphalt plant, concrete plant, crusher and sand and gravel washer located [at] 16535 Highway 310, Como, Mississippi, is hereby overruled a special exception is granted to H&G ... and APAC ... for a twenty (20) year period with hours of operation to be limited from 6:00 A.M. until 6:00 P.M. on Mondays through Saturdays of each week. The operation and development shall conform to the site plans submitted by the applicants. A certified copy of this Order shall be forwarded to Michael Graves ....

¶6. Thereafter, in the Circuit Court for the First Judicial District of Panola County, Mississippi, the Appellants 2 filed a Notice of Appeal, stating that they were appealing the Board’s approval of H&G’s special-exception application. The Board properly verified the Bill of Exceptions as selected by the Appellants, and the appellate record was designated. H&G and APAC then filed a motion to intervene, which was granted by an Agreed Order Allowing Intervention.

¶7. In their brief, Appellants argued that the Board’s decision was both unsupported by substantial evidence and arbitrary or capricious. The Board responded to the contrary. H&G and APAC filed a brief asserting that Appellants lacked standing to appeal the Board’s decision, and that— because the appeal was not timely filed— the circuit court lacked jurisdiction.

¶8. The circuit court affirmed the Board’s decision. H&G and APAC filed a Motion to Reconsider, and the court entered an order Granting in Part and Denying in Part — in which it granted on the standing issue but once again rejected the argument about timeliness of the appeal. Within its order, the court scheduled a hearing for the parties to present evidence and arguments on the question of standing.

¶9. Following a lengthy hearing, the court entered a Final Order on Standing/Merits, finding that Appellants had standing to appeal the Board’s decision, and also concluding once again that the Board’s decision was supported by substantial evidence, was not arbitrary or capricious, and consequently must be affirmed.

¶10.

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200 So. 3d 417, 2016 Miss. LEXIS 383, 2016 WL 4919428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/como-steak-house-inc-v-board-of-supervisors-of-panola-county-miss-2016.