Hearne v. City of Brookhaven

822 So. 2d 999, 2002 WL 382900
CourtCourt of Appeals of Mississippi
DecidedMarch 12, 2002
Docket2000-CA-01869-COA
StatusPublished
Cited by8 cases

This text of 822 So. 2d 999 (Hearne v. City of Brookhaven) 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
Hearne v. City of Brookhaven, 822 So. 2d 999, 2002 WL 382900 (Mich. Ct. App. 2002).

Opinion

822 So.2d 999 (2002)

Allan K. HEARNE, Appellant,
v.
CITY OF BROOKHAVEN, Mississippi, Appellee.

No. 2000-CA-01869-COA.

Court of Appeals of Mississippi.

March 12, 2002.
Rehearing Denied May 21, 2002.
Certiorari Denied August 29, 2002.

*1001 Dale F. Schwindaman, Jr., Jackson, attorney for appellant.

Joseph A. Fernald, Jr., Brookhaven, attorney for appellee.

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 *1002 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 ACED 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 *1003 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,

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Bluebook (online)
822 So. 2d 999, 2002 WL 382900, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hearne-v-city-of-brookhaven-missctapp-2002.