Martin Wheelan v. City of Gautier and David A. Vindich

• Court: Court of Appeals of Mississippi
• Decided: February 23, 2021
• Docket: 2019-CA-01062-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-CA-01062-COA

MARTIN WHEELAN APPELLANT

v.

CITY OF GAUTIER AND DAVID A. VINDICH APPELLEES

DATE OF JUDGMENT: 02/20/2019 TRIAL JUDGE: HON. MICHAEL H. WARD COURT FROM WHICH APPEALED: JACKSON COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: ROBERT E. O’DELL ATTORNEYS FOR APPELLEES: EDWARD C. TAYLOR A. KELLY SESSOMS III NATHAN RYNE HAND NICOLE WALL SULLIVAN NATURE OF THE CASE: CIVIL - REAL PROPERTY DISPOSITION: AFFIRMED - 02/23/2021 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC.

McDONALD, J., FOR THE COURT:

¶1. Martin Wheelan appeals from the Jackson County Chancery Court judgment

upholding the City of Gautier’s grant of a building permit to David Vindich, authorizing

Vindich to erect a 1,410-square-foot accessory structure on his property. Vindich cross-

appeals from the chancery court’s judgment that also dismissed his claims against Wheelan

for slander of title, as well as the chancery court’s order denying him attorney’s fees. After

a review of the record, arguments of counsel, and relevant precedent, we affirm the chancery

court’s rulings. FACTS

A. Vindich’s Planned Project and Initial Meetings Concerning a Permit

¶2. In 2015, Vindich purchased a .76-acre tract in a low-density residential neighborhood

in Gautier, Mississippi.1 Vindich’s property was larger than most of the quarter-acre lots in

the area. Located on the property was Vindich’s 2,840-square-foot home, gazebo, pool, and

boat house that was built partially on land and partially over the abutting canal.

¶3. Vindich initially desired to build an 1,800-square-foot garage/workshop on the

property. In May 2015, before ordering the plans for the building, Vindich met with Scott

Ankerson, the city’s planning director, to discuss the project.2 According to Vindich,

Ankerson verbally approved a 1,410-square-foot building, but Ankerson later denied this.

Vindich moved forward and spent $9,800 to purchase the plans that were required to be

attached to the formal application for the building permit.

B. The Relevant Ordinance Provision

¶4. Vindich’s permit application was subject to the building guidelines found in Gautier’s

Uniform Development Ordinance (UDO) that the city adopted on September 29, 2009 and

updated on November 5, 2015. Under Section 4.5 A of the UDO, no building can be erected

without a permit issued by the city manager or his designee, who is to insure that the permit

1 Vindich is a Gautier native who returned to retire after twenty-six years of service in the Marines. 2 Vindich says he also met at different times with individuals named “Wes” and “Cody” in the planning department before he moved forward with ordering his plans.

2 conforms to the provisions of the UDO. Under Section 4.5.1 A, all applications for building

permits must have the plans for the building attached and a survey drawn to scale.

¶5. A key UDO provision that affected Vindich’s project was Section 5.4.4. It set a limit

for the total square footage of all buildings on a lot and set limits for the size of the accessory

buildings:

F. Maximum Lot Coverage—Twenty-five (25) percent for the principal structure and accessory structures. Accessory Structures shall not exceed twenty (20) percent of the rear lot area or fifty (50) percent of the main building area, whichever is less.

Vindich’s .76-acre lot contained 33,105.6 square feet. Therefore, according to the first part

of Section 5.4.4 F, the total of all structures on his property could not exceed 8,276.4 square

feet (25% of 33,105). Less clear, and more problematic, was the computation of the limits

to the size of the accessory buildings found in the second part of this section. The UDO

provided no definition for the term “rear lot area.” Nor is there any definition in the UDO

for “main building area,” though Section 2.1.3 does define “buildable area” as “the space

remaining on a lot after the minimum open space offset and setback requirements have been

complied with; excepting any flood plain wetland or similarly designated unbuildable lands.”

C. Vindich’s Permit Application and Department Denial

¶6. Vindich submitted his building permit application with the plans attached on February

8, 2016. The Building Department denied Vindich’s application that same day because of

the size of the proposed workshop. Department personnel contended that the “main building

area” referred to in Section 5.4.4. F. meant the size of Vindich’s house, which was 2,840

3 square feet. Therefore, the department contended that the limit to accessory structures was

50% of the size of the house, or 1,420 square feet. The department also contended that all

accessory structures, added together, could not exceed this 50% of the size-of-the-home limit.

The department added up the size of the accessory structures already located on Vindich’s

property as follows:

Pool House 140 Gazebo 375 Boat House 614 Total 1,129

The department concluded that according to its interpretation of Section 5.4.4. F, Vindich

was limited to 1,420 square feet for all accessory buildings (50% of the 2,840-square-foot

residence). It reasoned that because Vindich already had 1,129 square feet of accessory

buildings, he could only build a 291-square-foot workshop [50% of the size of the home

(1,420 square feet) minus the square footage of the existing accessory buildings (1,120

square feet) equaling 291 square feet]. Vindich disagreed with the department’s

interpretation of the meaning of “main building area” and its interpretation of the size

limitation of accessory buildings (whether the UDO meant them to be aggregated in size or

considered individually).

D. Vindich’s Appeal to the Planning Commission with Rationale

¶7. On February 16, 2016, Vindich appealed the department’s denial of his building

permit to Gautier’s Planning Commission. He submitted a “Public Hearing Application,”

a form that contained several options of appeals and fees depending on the type of appeal,

4 including “zoning changes,” “major development,” “variance,” and “appeal to staff

decision.” Vindich checked “appeal to staff decision” as his reason for requesting a public

hearing. Under the UDO, the appeal of a staff decision on a building permit does not require

notice to neighboring property owners as would the appeal of a request for a variance.

¶8. Vindich attached to his hearing request a hand-written statement summarizing his

initial meeting with Ankerson, who Vindich said had given a verbal approval of the project.

Vindich also attached a type-written argument with his interpretation of the terms in the UDO

and his calculations that showed how his proposed workshop met the criteria of the UDO

limits of accessory-structure size. Using the dimensions on the official survey he also had

to submit with his application, Vindich showed that the total square footage of his house

(2,843.74 square feet) plus the square footage of his current accessory buildings (1,034.6

square feet)3 was 3,878 square feet.

¶9. The second part of Section 5.4.4 F reads, “Accessory Structures shall not exceed

twenty (20) percent of the rear lot area or fifty (50) percent of the main building area,

whichever is less.” (Emphasis added). Vindich noted the ambiguity of the term “main

building area,” which the UDO did not define. The department felt this term meant the main

residence, but it could also mean the “buildable area,” which the UDO does define, on

Vindich’s entire lot.

3 From the survey, he calculated that his house covered 2,843.74 square feet. The accessory buildings covered the pool house (147.29), gazebo (404.6), and boat house (482.37), totaling 1,034.6 square feet.

5 ¶10. Department personnel never calculated the first part of the second sentence of Section

5.4.4 F, i.e., the size of the “rear lot area,” which is to be compared to the size of the “main

building area.” Vindich did. From the survey, he calculated the front yard square footage

(3,068.1) and his house square footage (2,843.74) and subtracted each from the square

footage of the entire lot (33, 105.6 minus 3,068.1 minus 2,843.74) which results in the “rear

lot” square footage of 27,193.76. He then took 20% of that number to get the limit referred

to in Section 5.4.4 F (20% x 27,193.76) to get 5,478 square feet as the “rear lot area.”

according to Section 5.4.4 F, Vindich argued that this figure would then be compared to 50%

of the “main building area,” and whichever is less becomes the limit of the size of an

accessory building.

¶11. Vindich then calculated the “main building area” in two ways, depending on what the

term “main building area” meant. If “main building area” meant the overall size of the lot,

again referencing the definition of “buildable area,” then the 50% referred to in Section 5.4.4

F would be 50% times 33,105.6 square feet, equaling 16,552.8 square feet. But comparing

this amount to 20% of the “rear lot area” (5,478 square feet), the “rear lot area” was less.

Therefore, Vindich concluded that if “main building area” meant the overall size of the lot,

the limit for any new accessory building would be the “rear lot area,” or 5,478 square feet.

Vindich reasoned that because he already had 3,878 square feet of buildings on his property,

Vindich had 1,600 square feet available to build his workshop (5,478 square feet less 3,878

square feet).

6 ¶12. In the alternative, if the phrase “main building area” means the size of the house,

2,843.74 square feet, then 50% of that would limit an accessory structure to 1,421.87 square

feet (which is less than the 5,478 square feet that was calculated as the 20% of the “rear lot

area”). Vindich contended that his 1,410-square-foot workshop still met the UDO accessory-

building-size criteria even if the definition of “main building area” was the size of the house,

assuming that the UDO terminology meant the size limit for each accessory building.

E. Planning Commission Meeting and Vote

¶13. Prior to the Commission’s meeting to consider Vindich’s appeal, Chandra Nicholson,

the Planning and Economic Development Director, submitted the department’s rationale in

a staff report dated April 1, 2016. It did not deal with the computation of all portions of

Section 5.4.4 F but solely the computation of what the department considered was the limit

on a total of the accessory buildings, which it contended was 50% of the square footage of

the house. Also before the commission meeting, four of the seven commissioners visited the

property, and two other commissioners communicated with staff.

¶14. At the Planning Commission’s meeting on April 7, 2016, Vindich reviewed his

interactions with building department personnel Wes, Cody, and Ankerson, as well as the

events leading up to his application for the permit.4 One commissioner noted the lack of

4 There was discussion about whether Section 4.4 F limited the square footage of the accessory buildings individually or in the aggregate. In support of her position, Nicholson pointed out that Section 5.4.4 F refers to “accessory structures” with an “s” (in the plural form), indicating that it meant the square footage of all accessory buildings together.

7 definition of “main building area” in the UDO and asked the city attorney whether Vindich’s

interpretation of that term (i.e., the entire lot or even buildable area on the lot) had any

validity. The city attorney replied that he had not thought about it in the way Vindich

presented it. Another commissioner raised the hypothetical of a person adding on to their

house and thus gaining additional allowable storage space. Also, it was raised that the staff’s

interpretation would mean that a person with ten acres, but only an 1,100-square foot-home

would have limited square footage available for accessory buildings even though that person

had a large piece of property. Everyone agreed that the interpretation of the UDO was a

“gray area.” Vindich voiced some frustration because he felt that by talking informally to

the building permit department before he ordered the plans, he would avoid the problem he

now faced; namely, that he had spent nearly $10,000 to get the plans he was told he needed,

only to have permission for the project denied. He also told the commissioners that he had

spoken to the neighbors about his plans and shown them pictures of the building he was

going to order. No one had a problem with the workshop he planned to erect. Vindich’s

brother-in-law told the commissioners he could verify that Vindich “did his best to make sure

it would fly before he ordered the building.” One commissioner commented that he felt that

they needed to be just a little bit flexible and that what Vindich proposed fits the

environment. But another commissioner felt that if they deviated from the definition of “50

percent of the ‘main building area’” as the staff interpreted it just because Vindich’s lot was

large, then owners of smaller lots may want the same deviation. This commissioner felt that

8 any deviation would be arbitrary. But another felt that approving the building permit because

Vindich’s lot was larger than the standard lot was not arbitrary, but reasonable. Ultimately,

the motion to reverse the staff decision and allow Vindich to build the 1410-square-foot-

workshop passed on a 4-3 vote.

F. City Council Meeting and Vote

¶15. But the Planning Commission was not the final authority on the matter; it only

recommended a position to Gautier’s City Council, which is the final arbiter of UDO

interpretations and applications. The City Council met on April 19, 2016, to discuss the

Planning Commission’s recommendation that Vindich be granted the building permit.5

Vindich appeared and told the members basically what he had told the Planning

Commission.6 They discussed with Vindich and staff members the genesis of the Vindich’s

building permit application. Staff acknowledged that they did meet with Vindich prior to the

formal application.7 But they said they only gave him the general percentages available in

Section 5.4.4. They were not aware that the boat house was built partially on land, so any

prior calculations they may have made would have been incorrect. Department personnel

5 It should be noted that both the Planning Commission and City Council publish their agenda items on their website prior to each meeting. 6 This included his meetings with department staff and that he was ultimately told that he could build a 1,410-square-foot workshop. He proceeded to purchase plans that cost him nearly $10,000 to enable him to submit the formal permit application. 7 The only evidence of the City Council meeting was a recording on which it is difficult to identify who from the staff appeared and which member of the council was speaking at any specific time.

9 argued to the council their interpretation of the UDO provision, namely that Vindich’s plans,

including the square footage of all accessory buildings, exceeded the 50% of the square

footage of the main residence (which was how they obviously interpreted the term “main

building area”). But they also suggested that the council eliminate the 50% rule when the

council next met to update the code. One councilman noted that Vindich’s lot was three

times the size of a standard lot. But another councilman felt that the council could not bend

the rules for one person. One councilman asked if they could grant Vindich a conditional use

or variance. The staff responded that they could not. In a 4-3 vote, the Council accepted the

Planning Commission’s recommendation and allowed Vindich to build his 1,410-square- foot

workshop. On that same date, the City Council issued an order memorializing the vote.

Thereafter, Vindich proceeded to construct the workshop as permitted.

¶16. Thereafter, Vindich’s neighbor, Wheelan, whom Vindich had told earlier about his

plans and who had told Vindich to get the permit, returned from a trip to see that construction

had begun. Without Vindich’s knowledge or permission, Wheelan went onto Vindich’s

property and measured the size of the forms of the foundation. Wheelan objected to the size

of the building and told Vindich that he planned to do something about it. Wheelan felt it

was not right that such a large building could be permitted.8 Wheelan downloaded the UDO

and read through it. He accessed Vindich’s appeal online and reviewed the calculations

8 Wheelan admitted that he trespassed on Vindich’s property to measure the foundation’s forms to get the dimensions of the workshop.

10 Vindich had made. Wheelan then learned from the building permit department that the

department had rejected Vindich’s permit application but that the Planning Commission and

the City Council had reversed that decision. Wheelan met with a person named Scott, who

advised him to go to the next Planning Commission meeting to address the issue if he wanted

to.9 Only months later did Wheelan take legal action.

G. Litigation

¶17. After Vindich’s building was nearly completed, on October 24, 2016, Wheelan filed

suit in the Jackson County Chancery Court against Vindich, the City of Gautier, and the

individual members of the Gautier City Council. Wheelan alleged that the City Council’s

order was unlawful because in reality, Vindich was not seeking a building permit but rather

a variance, which required a public hearing with notice to neighbors and the public at large.

As a result, Wheelan pleaded that he was denied due process under 42 U.S.C. § 1983.

Wheelan also claimed that the City Council violated Mississippi Code Annotated section 17-

1-17 (Rev. 2003) because its actions were “arbitrary and capricious, an abuse of discretion,

beyond their legal authority, an abuse of power and unsupported by substantial evidence.”

Finally, against Vindich personally, Wheelan pleaded that the workshop “completely

overwhelms the residential neighborhood,” interfering with Wheelan’s enjoyment of his

9 There was no transcript or recording of this subsequent Planning Commission meeting, but Wheelan admitted that he did attend the meeting and told the Commission that he had no problem with Vindich’s building the shed and that the height of the building was irrelevant. Apparently, Wheelan took no further action thereafter until October when he filed suit.

11 property and creating a nuisance.

¶18. The individual council members and Vindich answered the complaint. In Vindich’s

answer, he counterclaimed against Wheelan for slander of title. Both Vindich and the City

filed Mississippi Rule of Civil Procedure 12(b)(6) motions to dismiss Wheelan’s complaint

for failure for state a claim and/or summary judgment. They argued that Wheelan failed to

exhaust his administrative remedies in a timely fashion because the UDO establishes a ten-

day deadline for appealing decisions by the city council, and Wheelan failed to do so.

Moreover, Mississippi Code Annotated section 11-51-75 (Rev. 2012) also requires that

anyone aggrieved by an action of a municipal authority appeal that decision within ten days

of the adjournment of the session in which the action was taken. They also pleaded that the

Mississippi Supreme Court has established the circuit court as the appellate court for

municipal-action appeals, not the chancery court. Because Wheelan alegedly failed to

exhaust the administrative process, Vindich and the City argued that the chancery court did

not have jurisdiction to hear Wheelan’s challenge to the city’s order granting the building

permit.

¶19. Wheelan responded to these motions and argued that his was a claim for the

deprivation of his constitutional rights under 42 U.S.C. § 1983 and that because he was

seeking injunctive relief, the chancery court had subject matter jurisdiction. Moreover, he

argued that the Mississippi Supreme Court has held that when the notice of a hearing is

deficient, the remedy of appeal provided for in section 11-51-75 was not exclusive. Wheelan

12 reiterated that Vindich’s workshop did not comply with the UDO, and thus it was a non-

conforming use that required a variance, which had different notice requirements. Because

of that, Wheelan argued that he was denied due process.

¶20. All three chancery court judges in the Sixteenth Judicial District, which includes

Jackson County, recused, and the Mississippi Supreme Court appointed a special judge to

hear the matter. The special chancery court judge denied both the City’s and Vindich’s

motions to dismiss or, in the alternative, for summary judgment on November 15, 2017. The

chancery court thereafter conducted a trial on the matter on June 25, 2018.

H. Trial and Chancery Court Rulings

¶21. During his case-in-chief, Wheelan testified, as did Ankerson, realtor Anna Kral,10 and

neighbor Leonard Frederick Sr. Ankerson explained his interpretation of Section 5.4.4 F,

i.e., that the total square footage of all accessory buildings could not exceed 50% of the

square footage of the main residence. He admitted that when he first met with Vindich, he

may have told him that there were 1,410 square feet available for accessory buildings. But

he meant 1,410 square feet for all accessory buildings and Vindich must have misunderstood

him. Ankerson said he did not verbally approve a single building of that size. During his

testimony, Ankerson read the UDO’s definition of “building area”: “the space remaining on

10 Anna Kral, the real estate agent for the seller in the sale of the home to Vindich, testified to its sales price of $250,000. When Wheelan’s attorney tried to elicit testimony from Kral about the value of other homes in the area, the defendants objected because Kral had not been designated as an expert. The chancery court agreed with the defendants and prohibited Kral from giving such testimony.

13 a lot after the minimum open space offset and setback requirements have been complied

with; excepting any flood plain wetland or similarly designated unbuildable lands.”

Ankerson agreed that this definition can be applied in interpreting Section 5.4.4 F’s reference

to “main building area.” He admitted that Section 5.4.4 F contains no language referencing

the square footage of the main house. Ankerson also admitted that Vindich’s interpretation

of the UDO provisions was reasonable and that the building department has actually been

using it since the Planning Commission and City Council approved Vindich’s permit.

Ankerson also agreed that Vindich’s workshop met the height requirements of Section 5.4.4

E (25 feet). Ankerson confirmed that Vindich did not ask for a variance and that no notice

to neighboring property owners was required for the appeal of a building permit denial.

Ankerson said he did not issue a written refusal but that he spoke to the department’s

director, Shandra Nicholson, and they agreed on refusing Vindich’s permit application.

¶22. Wheelan testified about the information he received prior to the grant of the permit

and what he did after he surreptitiously measured the building’s foundation. Wheelan said

that 80% of his view of the canal is now blocked by Vindich’s building. But he admitted that

his view is over Wheelan’s property and that he had no legal right, such as an easement, to

such a view. Wheelan said he purchased his house in 2005 for $97,000 and that he had made

improvements to his property. Without the Vindich workshop, Wheelan estimated he could

sell his property for $135,000, but with the Vindich building, he lost 20% of the $135,000

value. Although he talked to an appraiser, Wheelan did not have an appraisal prepared and

14 admitted that this “estimate” was more of a “guess.” Wheelan agreed that under another

section of the UDO, Vindich could have lawfully built an eight-foot fence on his property

that would also have obstructed Wheelan’s view of the canal. Still, Wheelan had issues with

the workshop building itself. He testified that his main “gripe” was that the City denied him

due process. Wheelan also admitted that there were different interpretations that could be

drawn from the wording of the UDO and that he did tell his neighbors that he believed

Vindich’s permit was illegal.

¶23. Frederick, a landowner who lived across the canal from Vindich, testified that he

knew nothing of Vindich’s workshop plans until an 18-wheeler pulled up and off-loaded the

steel and metal building parts. Frederick had bought his house in 1993 for $42,000. He

testified that he planned to sell it and called the realtor, Kral, to view the property. She never

gave him an estimate, but Frederick said that he wanted to sell the property for $349,000, and

that “if you look on Zillow now, the value of the property is $198,000.”

¶24. Finally, Wheelan presented as evidence the recording of the City Council’s meeting

on the Planning Commission’s recommendation, which completed his presentation. The

defendants then each moved for a directed verdict. The court dismissed Wheelan’s case

against the individual councilmen but denied the City and Vindich’s motions for directed

verdicts.

¶25. The City presented two witnesses: Phil Torgusen, the mayor of Gautier and former

Planning Commission member, and City Councilman Charles Anderson. Torgusen sat on

15 the Planning Commission that considered Vindich’s appeal. He explained that he felt that

Section 5.4.4F could have different interpretations and that at some point the Code would

need to be modified because of this. One interpretation (the Department’s) was that the

“main building area” included the square footage of the accessory buildings already there

compared to the square footage of the main house. He said that there was nothing in the

ordinance that said the square footage of the residence should be used. Vindich had a

different interpretation of the term “main building area,” namely the square footage of the

entire lot. Torgusen said that the Planning Commission has dealt with variances before, but

Vindich’s situation was not considered by the Commission as a variance. On cross-

examination, Torgusen agreed that he used the word “exception” during the Commission

meeting, but he said he did not mean it as a variance:

Q. Okay. And other than saying you wanted to give Mr. Vindich an exception, in the next paragraph you said you wanted to make it a one- time exception. Certainly that applied to Mr. Vindich. Did it not?

A. Well, it did apply to him, but what I was saying was that I thought there would be a small window of time where we could address the UDO and get it defined clearly before any other issue came back up. So I didn’t think that doing this one right there would hurt --

Q. Okay. So you thought --

A. -- on the interpretation we used.

Thus, Torgusen explained he felt that the Commission was applying what it considered was

the correct interpretation of the UDO in Vindich’s case and that future modifications of the

UDO would make this clearer.

16 ¶26. Councilman Anderson testified that the City Council did not grant Vindich a variance.

Following Councilman Anderson’s brief testimony, Vindich testified that he spoke to his

neighbors about building a workshop before he took any steps. He said he never referred to

it as a “shed.” No one had any objections, but Wheelan cautioned him to get a permit.

Vindich said he met with city personnel about his project four times. Ankerson checked

Vindich’s property size on the computer and calculated that he could build a 1,411-square-

foot building. Vindich then purchased plans for a 1,410-square-foot-building that cost him

nearly $10,000, which was not refundable. He submitted these plans with his building permit

application, only to have it denied. He met again with the building department, which

explained the appeal process. Vindich appealed and met with the City Planning Commission,

which decided to recommend to the City Council that the department’s decision should be

reversed. Vindich attended the City Council meeting, where the recommendation was made

and accepted. Both the Planning Commission and the City Council meetings were public

with published agendas. After Vindich received the permit, he began building. Vindich

testified that Wheelan approached him only once thereafter, in June 2016, when Wheelan

told Vindich that he did not like Vindich’s building plans and that he intended to do

something about it. At first Vindich waited, but hearing nothing further from Wheelan,

Vindich continued to build. He heard nothing more until October 2016, when he was sued.

He stopped work on the building at that time, but he had already spent nearly $40,000 on it

($10,000 for the plans and over $29,000 for materials and labor). Other people had told him

17 that Wheelan had said Vindich did not have a permit for the building, and then that Vindich’s

permit was illegal. Vindich said that this hurt his reputation and affected his relationship

with his neighbors. Vindich also said that he had to incur legal fees of $30,000 because of

Wheelan’s claims.

¶27. After considering the testimony, on February 20, 2019, the chancery court issued an

opinion and final order dismissing Wheelan’s claims against the City and Vindich, finding

that the City’s interpretation of the ordinance was not manifestly unreasonable. The court

also found that the structure was not a nuisance because the law does not vest one with a

right to an unobstructed view across a neighbor’s property. Additionally, the court dismissed

Vindich’s counterclaim of slander of title.

¶28. Wheelan filed a motion to amend or correct the judgment and motion for reconsider-

ation of the chancery court’s ruling on his claim against the City. The City replied to

Wheelan’s motion, as did Vindich, even though the motion did not deal with Wheelan’s

claim against him. Vindich cross-moved for reconsideration of the chancery court’s ruling

denying Vindich’s slander-of-title claim. He sought attorney’s fees as damages for the

slander-of-title claim, but he also sought attorney’s fees under Mississippi Code Annotated

section 11-55-5, alleging that the Wheelan’s nuisance claim was brought “without substantial

justification.” After hearing argument from counsel, the chancery court denied both

Wheelan’s motion and Vindich’s cross-motion.

¶29. Wheelan appealed, and Vindich cross-appealed. Wheelan claims (1) that the City’s

18 decision was unlawful because it violated the UDO and (2) that he and other neighboring

property owners were deprived of due process because they received no notice of the City

Council’s meeting to discuss Vindich’s application and consequently were denied the right

to be heard. Wheelan did not appeal the chancery court’s dismissal of his nuisance claim

against Vindich. Vindich argues in his cross-appeal: (1) that the chancery court erred in

denying his motion to dismiss (i.e., that the chancery court had no jurisdiction to hear

Wheelan’s challenges to the City Council’s actions); (2) that Wheelan’s claim was frivolous

and that the chancery court erred in not awarding Vindich damages, costs, and attorney’s

fees; and (3) that the chancery court erred in dismissing Vindich’s counterclaim against

Wheelan for slander of title.11

11 Vindich raises several other “issues” that we need not address. He argues that because Wheelan raises no issue on appeal relating to Vindich’s conduct; therefore, the chancery court judgment in favor of Vindich on Wheelan’s claim against him personally (i.e., nuisance) should be affirmed. But Wheelan did not challenge the chancery court’s ruling on the nuisance claims, and Wheelan confessed in his reply brief that the chancery court’s dismissal of Wheelan’s nuisance claim against Vindich remains in full force and effect. So we need not deal with that issue raised by Vindich. Even though Wheelan did not appeal the nuisance claim, Vindich lists as another issue: “Wheelan does not have a legal right to an unobstructed view across Vindich’s property so no nuisance existed.” But because Vindich obtained the relief he sought from the chancery court, i.e., the dismissal of the nuisance claim, Vindich cannot cross-appeal a decision regarding the nuisance claim. Forrest County v. Thompson, 204 Miss. 628, 657, 37 So. 2d 787, 793 (1948). Nor will we consider Wheelan’s response to Vindich’s argument on nuisance because Wheelan did not appeal the chancery court’s nuisance ruling in his direct appeal, and he cannot raise an issue in a reply brief. Ogunbor v. May, 204 So. 3d 840, 848 (¶33) (Miss. Ct. App. 2016). In addition, both Vindich and the City argue as an issue that Wheelan’s attachments to his appellate brief should not be considered by this Court because they were not presented to the chancery court at trial. We agree because appellate courts “will not consider new

19 STANDARD OF REVIEW

¶30. This Court “will not disturb a chancellor’s findings unless they are manifestly wrong,

clearly erroneous, or the chancellor applied an erroneous legal standard.” Estate of Avakian

v. Wilmington Tr. Nat’l Ass’n, 231 So. 3d 208, 213-14 (¶22) (Miss. Ct. App. 2017); Howard

v. Gunnell, 63 So. 3d 589, 593 (¶8) (Miss. Ct. App. 2011). “We apply an abuse-of-discretion

standard when reviewing a chancellor’s decision.” Id. (citing Creely v. Hosemann, 910 So.

2d 512, 516 (¶11) (Miss. 2005)). A board’s zoning decision will be affirmed “unless it is

clearly ‘arbitrary, capricious, discriminatory, illegal, or without a substantial evidentiary

basis.’” Hatfield v. Bd. of Supervisors of Madison Cnty., 235 So. 3d 18, 21 (¶10) (Miss.

2017) (quoting Drews v. City of Hattiesburg, 904 Sp. 2d 138, 140 (¶5) (Miss. 2005)). “Local

authorities’ construction of zoning ordinances is given great weight unless their construction

is manifestly unreasonable.” Roundstone Dev. LLC v. City of Natchez, 105 So. 3d 317,

321(¶15) (Miss. 2012).

DISCUSSION

I. Whether the chancery court had jurisdiction to consider Wheelan’s challenge to the City Council’s actions.

¶31. Early in the litigation, both the City and Vindich moved to dismiss Wheelan’s

complaint based on Wheelan’s failure to exhaust his administrative remedies, i.e., appeal the

evidence for the first time on appeal.” W-T Holdings LLC v. Gilchrist, 299 So. 3d 808, 814 (¶24) (Miss. Ct. App. 2019) (citing Abercrombie v. Abercrombie, 193 So. 3d 680, 683 (¶9) (Miss. Ct. App. 2016)). Consequently, we will not consider Wheelan’s attachments to his brief.

20 City Council’s action within ten days. Vindich argues on appeal that because of this failure,

the chancery court lacked jurisdiction and erred in denying the motions to dismiss. In

response, Wheelan argues that under the state and federal constitutions, due process claims

arise from a city’s failure to provide required notice of proceedings, and therefore the

chancery court had jurisdiction to hear Wheelan’s claims. The special chancery court judge

denied Vindich’s and the City’s motions, and we find no error in that ruling.

¶32. “The standard of review for a trial court’s grant or denial of a motion to dismiss is de

novo.” Weill v. Bailey, 227 So. 3d 931, 934 (¶14) (Miss. 2017) (quoting Burch v. Ill. Cent.

R.R. Co., 136 So. 3d 1063, 1064-65 (¶3) (Miss. 2014)). “A Rule 12(b)(6) motion to dismiss

for failure to state a claim tests the legal sufficiency of the complaint.” Rose v. Tullos, 994

So. 2d 734, 737 (¶11) (Miss. 2008). Such a motion “should not be granted unless it appears

beyond doubt that the plaintiff will be unable to prove any set of facts in support of his

claim.” Id. The jurisdiction of the trial court is critical because if a trial court lacked

jurisdiction to address a matter, then we as the appellate court are also without jurisdiction.

Cortez v. State, 9 So. 3d 445, 446 (¶6) (Miss. Ct. App. 2009).

¶33. Mississippi Code Annotated section 11-51-75 (Rev. 2012) establishes a ten-day limit

for a party aggrieved by a decision of a municipality to file a notice of appeal with the circuit

court. In most cases, this section has been held to be both mandatory and jurisdictional.

Foster v. Edwards, 61 So. 3d 960, 963 (¶8) (Miss. Ct. App. 2011). But in Tippah County v.

LeRose, 283 So. 3d 149, 153 (¶13) (Miss. 2019), the Mississippi Supreme Court held that the

21 direct appeal procedures found in section 11-51-75 are not the exclusive remedy for a due

process challenge to actions by local authorities:

It is true that this Court has repeatedly held that the statute permitting appeal from a decision of a county board of supervisors within ten days is “both mandatory and jurisdictional.” Lowndes Cty. v. McClanahan, 161 So. 3d 1052, 1056 (Miss. 2015) (internal quotation marks omitted) (quoting Newell v. Jones Cty., 731 So. 2d 580, 582 (Miss. 1999)). See also Miss. Code Ann. § 11-51-75 (Supp. 2018). But we have also held that a direct appeal is not the exclusive remedy when the complaining parties did not receive notice, if notice was required. In City of Jackson v. Jordan, 202 So. 3d 199, 204 (Miss. 2016), this Court held that “[w]hen notice to appear at a hearing is deficient, the remedy of appeal provided for in Section 11-51-75 is not exclusive.”

In this case, Wheelan claims that the City Council granted Vindich a variance, not a building

permit. In variance actions, the UDO requires notice to adjoining property owners, which

Wheelan claims was not given; therefore, he claims he was denied due process.

¶34. State and federal courts have concurrent jurisdiction over 42 U.S.C. §1983 claims.

Bessent v. Clark, 974 So. 2d 928, 934 (¶23) (Miss. Ct. App. 2007); E. Miss. State Hosp. v.

Callens, 892 So. 2d 800, 812 (¶21) (Miss. 2004).

State courts are not free to refuse or ignore jurisdiction over rights of action which arise under the constitution and laws of the United States. If the ordinary jurisdiction of the state court as prescribed by local law is adequate to the case, the court must accept jurisdiction of such federally created rights.

Lewis v. Delta Loans Inc., 300 So. 2d 142, 144-45 (Miss. 1974). Moreover, one suing under

42 U.S.C. § 1983 to enforce a substantive right need not exhaust administrative remedies.

Patsy v. Board of Regents, 457 U.S. 496, 515 (1982). In Johnson v. City of Canton, 194 So.

3d 161, 170 (¶36) (Miss. Ct. App. 2015), we said that a challenge to a government’s land-use

22 decision that alleges the decision was arbitrary or capricious states a violation of a

substantive right, which is not subject to the exhaustion of administrative remedies bar:

“When challenges to land-use decisions aspire to constitutional stature, we view those

decisions as ‘quasi-legislative’ in nature, and thus sustainable against a substantive due

process challenge if there exists therefor ‘any conceivable rational basis.’” Id. (quoting FM

Props. Op. Co. v. City of Austin, 93 F. 3d 167, 174 (5 Cir. 1996).

¶35. Thus, if the chancery court here has jurisdiction “as prescribed under local law” per

Lewis, then it had jurisdiction to hear Wheelan’s §1983 claim. “Once the chancery court has

jurisdiction on any ground of equity, the chancery court will proceed to a complete

adjudication and settlement of all issues.” Derr Plantation Inc. v. Swarek, 14 So. 3d 711,

718 (¶16) (Miss. 2009) (citing McClendon v. Miss. State Highway Comm’n, 205 Miss. 71,

78, 38 So. 2d 325, 327 (1949)). In Swarek, the Mississippi Supreme Court said:

It has long been settled in this state, as one of the pre-eminent principles of equity procedure, that the chancery court, having taken jurisdiction on any one ground of equity, will thereupon proceed in the one suit to a complete adjudication and settlement of every one of all the several disputed questions materially involved in the entire transaction, awarding by a single comprehensive decree all appropriate remedies, legal as well as equitable, although all the other questions involved would otherwise be purely of legal cognizance; and in this state, the rule goes even to the extent that if the ground of equity fail under the proof, the cause may still be retained to a complete final decree on the remaining issues, although the latter present legal subjects only and the decree would cover only legal rights and grant none but legal remedies, . . . that having taken jurisdiction the power of the court to administer full relief is limited by nothing but justice itself.

Swarek, 14 So. 3d at 718 (¶18). The Swarek court also pointed out that

23 [t]o determine whether a court has subject matter jurisdiction, we look to the face of the complaint, examining the nature of the controversy and the relief sought. The reviewing court must look to the substance, not the form, of a claim to determine whether that claim is legal or equitable. We have consistently held that if it appears from the face of a well-pleaded complaint that an independent basis for equity jurisdiction exists, our chancery courts may hear and adjudge law claims. In that circumstance, the legal claims lie within the pendent jurisdiction of the chancery court.

Swarek, 14 So. 3d at 716 (¶11) (citations and internal quotation marks omitted).

¶36. In this case, Wheelan’s claim was essentially equitable because Wheelan sought a

chancery court order requiring the City to order to Vindich to remove his workshop. Because

Wheelan’s suit was equitable in nature, and because state courts have concurrent jurisdiction

with federal courts to consider due process claims under 42 U.S.C. § 1983, the chancery

court had jurisdiction to hear his claims. Moreover, under Tippah County, Wheelan’s due

process claims relieved him of section 11-51-75’s requirement that he first appeal the City

Council’s permit decision within ten days. Accordingly, the chancery court had jurisdiction

and did not err in denying the City and Vindich’s motions to dismiss.

II. Whether the City’s decision to grant the permit was unlawful.

¶37. Wheelan argues that the chancery court erred in finding that the City Council’s

adoption of Vindich’s interpretation of Section 5.4.4 F was not arbitrary, capricious, or

manifestly unreasonable. We find that because the authority to interpret the wording of an

ordinance is vested in the City Council and because the interpretation of the UDO was

debatable, the City Council’s actions were not arbitrary, capricious, or manifestly

unreasonable, and the chancery court did not abuse its discretion, apply an erroneous legal

24 standard, or make a manifestly wrong finding.

¶38. The Mississippi Supreme Court has held that concerning an ordinance’s application,

“this Court will affirm a board’s zoning decision unless it is clearly ‘arbitrary, capricious,

discriminatory, illegal, or without a substantial evidentiary basis.’” Hatfield v. Bd. of

Supervisors of Madison Cnty., 235 So. 3d 18, 21 (¶10) (Miss. 2017) (citing Drews v. City of

Hattiesburg, 904 So. 2d 138, 140 (¶5) (Miss. 2005); Carpenter v. City of Petal, 699 So. 2d

928, 932 (¶13) (Miss. 1997)). In Vineyard Investments LLC v. City of Madison, 999 So. 2d

438, 440-41 (¶7) (Miss. Ct. App. 2009), we noted that the Mississippi Supreme Court ruled

in Thompson v. Mayfield, 204 So. 2d 878, 880 (Miss. 1967), that the issuance of a building

permit is a “purely ministerial” function; therefore, “a city does not have the discretion to

deny a building permit in instances where all applicable building code requirements and

zoning ordinances are met by the applicant.” Often in making such decisions, local

authorities may need to interpret their ordinances. “A key function of a county board, city

council, or board of aldermen is to interpret its zoning ordinances.” Hatfield, 235 So. 3d at

21 (¶9)).

¶39. In Hatfield, the supreme court reiterated the function and authority of a local zoning

board to interpret its ordinances and held that a board of supervisors’s determination that a

property owner had violated a county ordinance concerning breeding chickens, ducks, and

other fowl was not arbitrary and capricious. Id. at 19 (¶2). The supreme court also made

clear that appellate court’s review is not de novo but that deference should be given to the

25 ruling of the local authorities. Id. at 21 (¶11).12 “Local boards are in the most advantageous

position to interpret and apply local ordinances. That is why in construing a zoning

ordinance, great weight should be given to the construction placed upon the words by the

local authorities.” Id. at 21 (¶9). The Hatfield majority also cautioned against a totally de

novo review of local authorities’ interpretations of their ordinances as the dissent in that case

had suggested, saying:

[The dissent] recognizes this Court’s precedent but advocates we change the law and pursue a new approach. What [it] prefers is a purely de novo review, giving absolutely no deference to interpretations by local governing boards. We disagree with the wisdom of this suggestion. We also see no constitutional infirmity in our present law.

Id. at (¶11).

¶40. The supreme court defined the terms “arbitrary” and “capricious” as follows:

In applying an ordinance, an arbitrary decision is one “not done according to reason or judgment, but depending on the will alone.” A capricious decision is one “implying either a lack of understanding of or a disregard for the surrounding facts and controlling principles.”

Id. at 23 (¶21) (citations omitted). Further, in its opinion, the supreme court in Hatfield said:

“Still, even if this Court had some uncertainty with the Board’s decision, where the issue is

‘fairly debatable,’ it is the antithesis of arbitrary and capricious.” Id. at (¶24) (citations

omitted). Hatfield instructs that zoning interpretations are to be affirmed “unless manifestly

12 “Whatever may be the personal opinion of the judges of an appeal court on zoning, the court cannot substitute its own judgment as to the wisdom or soundness of the municipality’s action.” Thomas v. Bd. of Supervisors of Panola County, 45 So. 3d 1173, 1186 (¶41) (Miss. 2010) (citations omitted).

26 unreasonable.” Id. at 19 (¶1).

¶41. All parties here agree that the principles promulgated in Hatfield, which were used by

the special chancery court judge here, were applicable to Wheelan’s case. The basis of

Wheelan’s argument is that the City’s issuance of a building permit violated the size

limitations for accessory building in Section 5.4.4 and thus was unlawful.13 In his brief,

Wheelan presents a lengthy argument, with calculations and interpretations of key terms in

Section 5.4.4 F.14 But basically Wheelan argues the same interpretation that the City

Building Permit Department used—that the aggregate square footage of Vindich’s accessory

buildings was limited to 50% of the size of the “main building area,” defined as main

residence. Vindich had presented his interpretation of Section 5.4.4 F and calculations in his

appeal to the Planning Commission. He contended that “main building area” could also mean

“building area” as defined in the UDO, which basically included his entire lot.15 Both the

Planning Commission and City Council acknowledged that the wording of Section 5.4.4 F

was “gray” and subject to different interpretations. At trial, Ankerson agreed, as did

Wheelan himself. When he was questioned at trial, Wheelan said that there could be multiple

13 Wheelan claims that Vindich intentionally chose to seek a permit rather than a variance in order to avoid formal notice to his neighbors. However, he presented no proof of such intent. 14 Wheelan did not present these calculations at trial. 15 If the “building area” definition is used as “main building area,” Section 5.4.4 F would limit accessory structures 20% of the “rear lot area,” which would be less than 50% of the entire lot even subtracting setbacks.

27 interpretations of the ordinance. The mayor and former planning commissioner, as well as

one of the City Council members, testified at trial that they were interpreting the ordinance,

not granting Vindich a variance from it. In essence, the City Council rejected the

department’s interpretation of “main building area” as meaning the size of the house and

adopted Vindich’s definition that it meant the size of the building area, basically the size of

the lot. As Vindich calculated in his appeal papers, the 1410-square-foot accessory building

was less than 20% of the rear lot area (5,478 square feet), which was the less than 50% of the

main building area. It is our opinion that this is one reasonable interpretation of Section

5.4.4 F. Accordingly, we find that the City Council’s decision was “fairly debatable” and

that this interpretation was not manifestly unreasonable. See Jones v. Lutken, 62 So. 3d 455,

459 (¶19) (Miss. Ct. App. 2011).

¶42. The dissent contends that the City Council’s interpretation of the term “main building

area” is manifestly unreasonable because such a definition nullifies other portions of the

UDO provision. The dissent says that interpreting the “main building area” as Vindich’s

entire lot would mean that the comparison of the lesser “50% of the main building area” to

“20% of the rear lot” will always result in the 20% prevailing. The dissent says this violates

existing precedent, found in Hemphill Construction. Co. v. City of Clarksdale, 250 So. 3d

1258, 1263 (¶15) (Miss. 2019), that “a construction which will render any part of a statute

inoperative, superfluous, or meaningless is to be avoided.” But this mandate arose in a case

where a city was interpreting a state statute on bidding procedures, not in a case like this one

28 where a city is interpreting its own zoning ordinance.16 This is not a case where we as an

appellate court are being asked to examine a city’s interpretation of a statute as in Hemphill

or to review a chancery court’s decision on the interpretation of a statute as in Davis v.

Miller, 202 Miss. 880, 32 So. 2d 871 (Miss. 1947), which is the other case the dissent cites.

16 In Hemphill, the City of Clarksdale advertised a water works project, and two companies bid, Landmark and Hemphill. Hemphill, 250 So. 3d at 1260 (¶¶2-3). When bids were opened, Landmark’s bid was the lower, but it was still more than 10% over the funds allocated for the project. Id. Clarksdale’s grant manager told the City that their CDBG grant could be increased and the Clarksdale Public Utilities Commission could also match the additional fund, making up the amount that Landmark bid. Id. The City did this, got the funds, and contracted with Landmark. Id. at (¶6). Hemphill filed a bill of particulars. Id. at (¶7). The circuit court found for the City and Hemphill appealed. Id. at 1261 (¶¶8-9). The Mississippi Supreme Court reversed. The statute concerning a municipality’s authority to accept a bid, Mississippi Code section 31-7-13(d)(iv) (Rev. 2020), provides that:

if the lowest and best bid is not more than ten percent (10%) above the amount of funds allocated for a public construction or renovation project, then the agency or governing authority shall be permitted to negotiate with the lowest bidder in order to enter into a contract for an amount not to exceed the funds allocated.

Id. at 1261 (¶14). The supreme court said that Landmark’s bid was not less than 10% of the initially allocated funds, and so the city had no authority to accept the bid. Id. When the City tried to argue that the statute necessarily implied its authority to act as it did, the supreme court recounted what the City had done and concluded:

These steps, taken after the bids were opened, frustrate the powers expressly granted, clearly given, or necessarily implied in the public-purchasing laws and render the ten-percent limitation not only superfluous, but meaningless. “A construction which will render any part of a statute inoperative, superfluous, or meaningless is to be avoided.” McCaffrey’s Food Market Inc. v. Miss. Milk Comm’n, 227 So.2d 459, 463 (Miss. 1969).

Id. at 1262-63 (¶15).

29 As noted in Tinseltown Cinema LLC v. City of Olive Branch, 158 So. 3d 367, 373 (¶18)

(Miss. Ct. App. 2015):

there is a distinct difference between a review of a municipal board’s interpretation of a statute and its interpretation of an ordinance. Like other questions of law, a board’s interpretation of a statute calls for a de novo review. However, we are bound to give “great weight” to a local government’s construction of zoning ordinances unless it is manifestly unreasonable.

(Citations omitted). If “[t]he language of the ordinance is . . . flexible enough to

accommodate the City’s interpretation,” the interpretation is not manifestly unreasonable.

Roundstone Dev. LLC, 105 So. 3d at 320 (¶12). In the case before us, we find that there are

several interpretations of the ordinance, and the language of the ordinance does

accommodate the interpretation adopted by the City Council.

¶43. The dissent itself presents interpretations of the UDO in question that the City could

have adopted that would also have allowed Vindich to build his workshop.17 This shows the

debatable nature of the meaning of the words in Gautier’s UDO, which we have previously

found to be the province of the governing authority to decide. For example, in Jones v.

Lutken, 62 So. 3d 455 (Miss. Ct. App. 2011), we upheld a board of supervisors’

17 If we were to adopt the Hemphill mandate, we would have to find one of the dissent’s interpretations faulty as well. The dissent says that a “reasonable interpretation” is that “main building area” could mean the “Maximum Lot Coverage”—twenty-five percent of the lot. But this interpretation ascribes the same meaning to two different terms in the UDO (the “Maximum Lot Coverage” and “main building area”). Moreover, such an interpretation ignores the intent of the second sentence of this UDO provision, which specifically addresses the sizes of “accessory buildings” only.

30 interpretation of an ordinance because certain terms were not defined and debatable; thus the

board’s decision was not manifestly unreasonable. In that case, Jones’s RV park operated

as a permissible non-conforming use to Washington County zoning ordinances. Id. at 457

(¶3). The ordinance provided, however, that “nonconformities shall not be enlarged upon,

expanded, or extended, nor be used as grounds for adding other structures or uses prohibited

elsewhere in the same district.” Id. Jones later sold portable cabins, and two purchasers

placed them on two of the RV park lots. Id. at 457 (¶4). The county planning commission

considered these cabins as permissible continuations of Jones’s permissible non-conforming

use. Id. at 457 (¶6). Nearby homeowners appealed to the board of supervisors, which upheld

the commission’s decision. Id. at 457 (¶7). Homeowners appealed, and the circuit court

reversed the board’s decision, finding that the placement of the cabins was an expansion of

Jones’s non-conforming use. Id. at 457 (¶8). On appeal, we noted:

The Board of Supervisors was faced with these questions and had to interpret the zoning-ordinance language. The words “expansion” and “continuation” were not clearly defined, precise terms in the zoning ordinance. These words must be interpreted and applied within the context of a given factual scenario. It is the role of the Board of Supervisors to make these judgments, subject to limited appellate review.

Id. at 459 (¶18). We also noted that when construing an ordinance, great weight should be

given to the construction of the local authorities unless manifestly unreasonable. Id. at (¶19).

We reiterated that when the issue is fairly debatable, then the decision of local authorities

should be affirmed. Id. We opined that the board’s interpretation that the ordinances

definition of an RV could include a portable cabin and that the board’s decision was fairly

31 debatable. Id. We held that the board’s decision was not manifestly unreasonable. Id.

Similarly, in this case, we find the interpretation of Gautier’s UDO on maximum lot coverage

was fairly debatable, and the City Council’s interpretation was not manifestly unreasonable.

¶44. In addition, after the City Council met and granted Vindich’s permit, the director of

the building permit department testified that they have used that interpretation of the UDO

ever since. All acknowledged that there were different ways to interpret the ordinance, and

once the City Council chose an interpretation, future matters were decided using that

interpretation. Wheelan argued that the case of City of Ocean Springs v. Psycamore LLC,

124 So. 3d 658 (Miss. 2013), where Mississippi Supreme Court said that “the best

interpretation of a city ordinance is the city’s history of applying that ordinance.” Id. at 662

(¶16). But Wheelan presented no evidence that prior building permits that had been issued

by the City Council using Wheelan’s interpretation. There was no proof that the City Council

had previously approved and used a specific interpretation of Section 5.4.4 from which it

deviated in Vindich’s case. It appears that the City Council had not been presented with the

issue prior to Vindich’s permit application. As already mentioned, according to the city

planning director’s testimony at the June 2018 trial, the department has used the Vindich

interpretation since the Council made its decision in April 2016. While prior history of use

is important, we have no evidence of that; therefor, the subsequent use becomes significant

as well, which weighs against Wheelan. The department obviously considered the City

Council’s action as a directive on the interpretation of Section 5.4.4 F and has since applied

32 it.

¶45. In light of the evidence presented at trial, Wheelan did not prove, nor can we say, that

the City Council’s actions were done without reason, in a whimsical manner, or with a

disregard of the facts. The City Council performed its legitimate function of interpreting an

ordinance that the record shows was subject to different debatable interpretations. We cannot

say that the grant of the permit was “manifestly unreasonable.” Therefore, we affirm the

chancery court’s ruling that the City Council’s grant of a building permit was not arbitrary,

capricious, or without a substantial basis.

III. Whether Wheelan was deprived of due process because he and other neighbors received no notice of the public hearing on Vindich’s appeal and the City Council meeting on the Planning Commission’s recommendation.

¶46. Wheelan argues that he and neighboring property owners were given no notice of

Vindich’s appeal to the Planning Commission nor of the City Council meeting that accepted

the Planning Commission’s recommendation. Wheelan claims that both local authorities

granted Vindich a de facto variance, not a permit, and that he did not receive notice of the

variance proceedings, thereby depriving him of his due process rights. The City maintains

that Vindich applied for a building permit, not a variance, and it was processed and approved

as such. The UDO does not require private or public notice for the appeal of a staff decision

of a building permit application. After a review of the record, we find no merit to Wheelan’s

33 due process claim.18

¶47. Whether the City deprived Wheelan of his due process rights by failing to provide him

with notice and a right to be heard on Vindich’s application obviously depends on whether

Wheelan had such a right. This in turn depends on whether the Planning Commission and

City actually considered Vindich’s application and appeal as a request for a variance, or

whether it considered its actions as the interpretation of an ordinance.

¶48. Section 4.18 defines a variance:

In certain circumstances, a [v]ariance from the dimensional requirements (i.e. height, setbacks, square footage) of this ordinance may be granted if the applicant can prove that because of physical constraints of the property involved, he is not able to build the same type of structure that other persons with the same zoning classification can build. . ..

Eligibility for a variance, found in Section 4.18.4, includes:

The Variance application shall demonstrate the following:

18 Wheelan also argues that the department staff did not properly process Vindich’s appeal of his building permit denial, saying that there was no written staff decision of the denial and no review of the appeal application by the City Attorney. But Wheelan did not raise these deficiencies in the permit procedure to the chancery court, so he is barred from arguing them now on appeal. “We need not consider matters raised for the first time on appeal, which practice would have the practical effect of depriving the trial court of the opportunity to first rule on the issue, so that we can then review such trial court ruling under the appropriate standard of review.” Stephens v. Miller, 970 So. 2d 225, 227 (¶9) (Miss. Ct. App. 2007) (citing Alexander v. Daniel, 904 So. 2d 172, 183 (¶26) (Miss. 2005)). Moreover, these deficiencies in the Vindich’s permit denial appeal process are not a different argument on the same issue as Wheelan claims. The issue here is whether the Planning Commission and City Council in fact granted Vindich a variance that required personal and public notice to his neighbors, not whether the City’s processing of Vindich’s appeal of the staff decision denying his permit application was defective.

34 A. That special conditions and circumstances exist which are peculiar to this particular site(lot or parcel), structure or building involved and which are not applicable to other sites (lots or parcels) or structures or buildings in the same district; B. That literal interpretation of the provisions of this Ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same district under the provisions of this Ordinance; C. That the special conditions and circumstances do not result from actions of the applicant; and D. That granting the Variance requested will not confer upon the applicant any special privilege that is denied by this Ordinance to other similar sites (lots or parcels)structures or buildings in the same district.

UDO Section 4.14.2 indicates that a review of a request for a variance at both the Planning

Commission and City Council levels requires public notice, including publication in a local

newspaper of general circulation.19 Clearly, if Vindich’s application was in fact an

application for a variance, then notice by publication and mailing was required.

¶49. But the evidence presented in this case shows that from the beginning, Vindich sought

a building permit and that the City Council considered and granted him a permit, not a

19 According to Section 4.14.2 A, this notice must contain:

1. Parcel Identification Number 2. Address of the subject property (if available) 3. A description of the action requested 4. The time, date and location of the public hearing 5. A phone number to contact Economic Development/Planning Department 6. A statement that interested parties may appear at the public hearing and shall have the opportunity to be heard.

Also under Section 4.14.3 A, “The Economic Development Director, or his designee, shall notify by first class mail all property owners within the appropriate notification distance from the property under consideration for a Rezoning, Conditional Use, Variance or Home Occupation.”

35 variance. All documents entered into evidence show that Vindich applied for a building

permit, not a variance. The application itself is entitled “Application for a Residential

Building Permit” and did not contain the elements required in an application for a variance.

Furthermore, the appeal form he completed was for an appeal from a “staff decision” that

denied his building permit application, not from a denial of a variance. Thus, from the

beginning, Vindich was not applying for a variance but for a building permit that he

contended met the requirements of the UDO under one interpretation of its language.

¶50. But Wheelan argues that the use of the word “exception” by one commissioner during

the Planning Commission meeting indicates that the commissioners were not in fact voting

on an interpretation of the ordinance but on an exception to it, i.e., a variance, which required

notice. We disagree. At trial, Mayor Torgusen, who served on the Planning Commission

that approved Vindich’s permit, explained that he did not use word “exception” to mean that

he considered his action as granting a variance to the ordinance. He said he meant that the

language of the UDO needed interpretation and that he saw no harm in applying to Vindich’s

application the interpretation that they planned to use in an amended UDO with more clearly

defined terms. The staff as well as City Council member Anderson testified that they agreed

that no variance was granted. Everyone, including Wheelan, admitted that the UDO terms

were subject to interpretation and that Vindich’s interpretation was reasonable. Since no

variance was applied for or granted, Wheelan was not entitled to any further notice.

¶51. Wheelan cites Robinson v. Indianola Municipal School District, 467 So. 2d 911 (Miss.

36 1985), as support for his argument that he was entitled to additional notice. But Robinson

is distinguishable and in applicable to the facts of this case. In Robinson, the school district

sought to build a new gymnasium on property it owned located across the street from

Robinson’s home. Id. at 913. The Indianola off-street parking ordinance required “a parking

space for each four seats in the main auditorium of a school or one space for each seventeen

classroom seats, whichever is greater.” Id. at 914. Given the size of the gymnasium

proposed, the parking ordinance would require between 375 and 500 parking spaces to

accommodate a capacity crowd of 1,500 to 2,000. Id. at 916. But the school district’s plan

included only 53 permanent parking spaces with 40 additional temporary spaces off Battle

Street. Id. The School District did not request nor was it granted a variance by the City of

Indianola from the parking ordinance requirements; the district merely altered the distance

that the gymnasium would be set back from the street. Id. at 914. The superintendent and

architect met with the city planning commission, which approved the plan. Id. at 913. On

appeal from the chancery court’s dismissal of Robinson’s lawsuit, the Mississippi Supreme

Court held that the school district was bound by the city’s zoning ordinance requiring that

off-street parking be proportional to the auditorium capacity. Id. at 917. The school district

had argued that it had been granted a variance when the city approved its construction plans.

Id. But the supreme court pointed out that “the city’s own zoning ordinance requires public

notice and hearing in order to validly grant a variance, a requirement that was not fulfilled.”

Id.

37 ¶52. This case differs from Robinson because Robinson did not deal with the interpretation

of an ordinance but merely with the application of a clear, undebatable ordinance that set out

parking requirements based on the gymnasium’s seating capacity. The supreme court held

that to deviate from that clearly stated ordinance, Indianola was required to give notice to the

public. In the case at hand, Gautier’s Planning Commission and City Council needed to

interpret the wording of its UDO provisions and then apply that interpretation to Vindich’s

permit application. The provisions were “gray,” and the concepts used were subject to

different interpretations. Unlike the City of Indianola, here the City of Gautier was not

considering a permit application that deviated from a clearly worded, undebatable ordinance.

Here the City interpreted language in its ordinance and found Vindich’s permit application

in compliance with its UDO requirements.

¶53. In this case, because the UDO provisions do not require public notice of the appeal

of a staff decision, because the documents presented showed that Vindich applied for a

building permit and not a variance, and because witnesses for the City testified that the

Planning Commission and City Council did not grant a variance but rather adopted an

interpretation of its ordinances provisions that was fair and reasonable, we find no basis for

determining that the City’s actions required notice to the public or Wheelan. Therefore, we

find that Wheelan was not deprived of any due process rights.20

20 We further note that Vindich did notify Wheelan of his intent to build and that Wheelan was aware of the size of the building when he measured the framing for the slab in June before it was poured. Wheelan knew of the City Council’s approval of the permit by

38 IV. Whether Vindich was entitled to damages, costs, and attorney’s fees.

¶54. Because the chancery court judge decided that Wheelan failed to prove a nuisance

claim against Vindich, post-hearing Vindich requested an award of attorney’s fees pursuant

to Mississippi Code Annotated section 11-55-5. He argued that Wheelan had filed a case

against him “without substantial justification.” The chancery court denied Vindich’s motion

for attorney’s fees. Vindich appeals this denial and further, he seeks attorney’s fees for what

he considers a frivolous appeal by Wheelan under Mississippi Rule of Appellate Procedure

38. We find no error in the chancery court’s ruling, and because of this, Wheelan’s appeal

is not frivolous either.

¶55. Mississippi Code Annotated 11-55-5(1) provides for an award of attorney’s fees in

limited circumstances:

(1) Except as otherwise provided in this chapter, in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorney’s fees and costs against any party or attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification, or that the action, or any claim or defense asserted, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceedings by other improper conduct including, but not limited to, abuse of discovery procedures available under the Mississippi Rules of Civil Procedure.

July and met with department personnel and later attended a Planning Commission meeting about it. So he had actual notice of the approval and of the dimensions of Vindich’s planned building in July, but he took no action to stop it until October after Vindich had spent nearly $40,000 in construction costs and had the building nearly completed.

39 We review the chancery court’s grant or denial of attorney’s fees requested under this statute

for an abuse of discretion. Kuhn v. High, 302 So. 3d 630, 640 (¶26) (Miss. 2020). To

reverse the chancery court denial of fees, we would have to be of “a definite and firm

conviction that the court below committed a clear error of judgment in the conclusion it

reached upon weighing of relevant factors . . . .” Id.

¶56. “An action or filing made without substantial justification is one that ‘is frivolous,

groundless in fact or in law, or vexatious, as determined by the court.’ Miss. Code Ann.

§ 11-55-3(a) (Rev. 2012).” Garner v. Smith, 277 So. 3d 536, 541 (¶17) (Miss. 2019). “A

claim is frivolous when ‘objectively speaking, the pleader or movant has no hope of

success.’” Id. at (¶18) (citation omitted). For example, an amended complaint in action

challenging a garnishment was frivolous and sanctionable where it made essentially the same

allegations that were stated in original complaint, which was dismissed for failure to state a

claim. Triplett v. Brunt-Ward Chevrolet, Oldsmobile, Pontiac, Buick, Cadillac, GMC Trucks

Inc., 812 So. 2d 1061, 1067-68 (¶14) (Miss. Ct. App. 2001). But a case that is “weak” or

“light-headed” is not frivolous. Cont’l Cas. Co. v. Allstate Prop. & Cas. Ins. Co., 235 So.

3d 40, 58 (¶74) (Miss. 2017).

¶57. Vindich begins by arguing that he is entitled to fees because Wheelan failed to exhaust

his administrative remedies before filing suit, and thus Wheelan’s suit in chancery court was

filed out of time. Because we hold that Wheelan’s due process claim did not require an

exhaustion of administrative remedies, Wheelan’s chancery court filing was not “without

40 justification” based on a failure to exhaust administrative remedies.

¶58. Vindich next cites Alexander v. Pitts, 229 So. 3d 1073 (Miss. Ct. App. 2017), to

support his claim that Wheelan’s suit was frivolous. In that case, Pitts had purchased the

property from Lowe who had obtained it in a tax sale and confirmed his title. Id. at 1074

(¶2). Pitts’s neighbor Alexander sued Pitts for adverse possession of property along a fence

line. Id. at 1074 (¶3). Pitt moved to dismiss. Id. at (¶4). After a hearing, the chancery court

denied Alexander’s request for a preliminary injunction. Id. at 1075 (¶5). In a subsequent

hearing on the matter, Alexander challenged the legality of the tax sale by which Pitts’s

previous owner had obtained the property. Id. at (¶9). The chancery court held that

Alexander had not pleaded any collateral attack on the tax sale and that the tax sale had

ended Alexander’s interest in the land. Id. After trial, Alexander moved for a new trial to

put on evidence of irregularities in the tax sale. Id. The chancery court denied Alexander’s

motion because the issue had not been presented at trial. Id. at 1076 (¶10). On appeal,

Alexander did not challenge any ruling of the chancery court but attempted to collaterally

attack the tax sale again, raising arguments not made before the chancery court. Id. at (¶11).

Alexander cited no authority for his claims and no authority to support an attack on the tax

sale through his appeal. Id. We found that “[b]ecause Alexander clearly relied on the idea

that he would circumvent the chancellor and raise an issue for the first time on appeal, his

attempted collateral attack on judgments that did not stem from the underlying litigation had

no hope of success.” Id. at 1077 (¶14). Based on the finding that Alexander’s appeal was

41 frivolous under Mississippi Rule of Appellate Procedure 38, the case was remanded for the

chancery court to assess attorney’s fees. Id. at (¶15).

¶59. The facts of the case at hand differ significantly from those in Alexander. Here

Wheelan filed suit against the City on his claims for denial of due process and against

Vindich for nuisance. He appealed the denial of due process claim which had been tried

before the chancery court judge. Wheelan is raising no new issue on appeal as did

Alexander.

¶60. Vindich next argues that Wheelan’s nuisance claim against him was frivolous because

Wheelan had no right to an unobstructed view across Vindich’s property. As support,

Vindich cites Blackwell v. Lucas, 271 So. 3d 638 (Miss. Ct. App. 2018), in which we made

such a ruling. Id. at 640-42 (¶7, 10). But the defendants in Blackwell raised no issue of the

filing being frivolous or for attorney fees. We note that the Blackwell case was decided in

November 2018, months after the trial of this case in June 2018. Therefore, we cannot hold

Wheelan to precedent that had not been established because an appellate court looks to the

facts known at the time of filing a complaint. Eatman v. City of Moss Point, 809 So. 2d 591,

594 (¶12) (Miss. 2000). Moreover, Wheelan also pleaded due process claims for which he

sought an injunction that would ultimately make Vindich remove his workshop. Vindich was

clearly a necessary party to the case under Rule 19 of the Mississippi Rules of Civil

Procedure. “We also recognize the maxim of equity which states that all persons with an

interest in the subject of litigation whose interest will be affected by the judgment must be

42 made parties to the action, to enable the court to do complete justice and not by halves.”

Mahaffey v. Alexander, 800 So. 2d 1284, 1286 (¶6) (Miss. Ct. App. 2001). Therefore, we

cannot hold that Wheelan filed a case that had no hope of success, and we find no merit to

Vindich’s claim for attorneys fee’s for filing a frivolous claim under section 11-55-5.

¶61. Nor is Vindich entitled to attorney’s fees under Rule 38 of the Mississippi Rules of

Appellate Procedure. Rule 38 provides, “In a civil case if the Supreme Court or Court of

Appeals shall determine that an appeal is frivolous, it shall award just damages and single

or double costs to the appellee.” M.R.A.P. 38. An appeal may be frivolous if the appellant

has absolutely no hope of success. Mabus v. Mueller Indus., No. 2019-WC-00983-COA,

2020 WL 4436288, at *11 (¶48) (Miss. Ct. App. June 23, 2020), cert. denied, Order, No.

2019-CT-00983-SCT (Miss. Feb. 4, 2021). But if it can only be said that an “appellant does

not appear to have much hope of success,” we cannot conclude that he has no hope of

success. Id. (quoting In re Estate of Cole, 256 So. 3d 1156, 1160 (¶13) (Miss. 2018).

¶62. In this case, Wheelan did not appeal the nuisance issue. But for Vindich’s cross-

appeal of the chancery court’s denial of his slander of title claim, Vindich would not even

be a party to this appeal. We cannot sanction Wheelan for an appeal he did not file.

Therefore, Vindich is not entitled to attorney’s fees under Mississippi Rule of Appellate

Procedure 38.

V. Whether the chancery court erred in dismissing Vindich’s counter- claim against Wheelan for slander of title.

¶63. In his cross-appeal, Vindich claims that the chancery court erred in dismissing his

43 slander of title counter-claim against Wheelan. We find no abuse of discretion or manifest

error by the chancery court on this issue because Vindich’s title was not disparaged.

¶64. “To succeed in an action for slander of title, a claimant must show that another has

falsely and maliciously published statements that disparage or bring into question the

claimant’s right of title to the property, thereby causing special damage to the claimant.”

Mize v. Westbrook Const. Co. of Oxford LLC, 146 So. 3d 344, 348 (¶7) (Miss. 2014) (citing

Walley v. Hunt, 212 Miss. 294, 304, 54 So. 2d 393, 396 (1951)). Key to this cause of action

is that the false and malicious statements disparage one’s title to property. Here the chancery

court correctly found that any of Wheelan’s alleged disparaging statements concerned the

legitimacy of Vindich’s permit to build, not Vindich’s title to his land. All cases cited by

Vindich as support dealt with statements or actions inferring that an individual did not

actually have title to the property he claimed. Mize was a suit to confirm title based on a

corrected deed in a boundary dispute between adjoining land owners. Mize, 146 So. 3d at

347 (¶5). In Butler v. City of Europa, 725 So. 2d 158, 161 (¶11) (Miss. 1998), Butler sued

the city for laying waterlines on property before identifying the proper owners. Another case

Vindich cites was brought by an a heir who claimed title to the lands allotted to the other

heirs in a partition action. Phelps v. Clinkscales, 247 So. 2d 819, 820 (Miss. 1971). Again,

title to property was involved. Id. In Walley v. Hunt, 212 Miss. 294, 305, 54 So. 2d 393, 396

(1951), the supreme court described the type of statement underlying a slander of title claim:

“[t]he false statement may consist of an assertion that plaintiff has no title to the property of

44 which he is the ostensible owner, or that his title is defective, or that defendant has an interest

in or lien upon the property.” Here, Vindich has presented no authority that Wheelan’s

statements questioning the validity of Vindich’s building permit constitutes slander of title.

Accordingly, the chancery court did not err when it dismissed Vindich’s slander-of-title claim

against Wheelan.

CONCLUSION

¶65. We find that the City of Gautier’s interpretation of its UDO provisions was not

arbitrary, capricious, or manifestly unreasonable and that its issuance of a permit to Vindich

was not unlawful. Finding no error or abuse of discretion by the special chancery court in

the dismissal of Wheelan’s deprivation of due process claim and its dismissal of Vindich’s

slander-of-title claim, we affirm the chancery court’s judgment in this matter.

¶66. AFFIRMED.

BARNES, C.J., GREENLEE, McCARTY AND SMITH, JJ., CONCUR. WILSON, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY CARLTON, P.J. WESTBROOKS AND LAWRENCE, JJ., NOT PARTICIPATING.

WILSON, P.J., CONCURRING IN PART AND DISSENTING IN PART:

¶67. I concur that the chancery court had jurisdiction to consider Wheelan’s challenge to

the City Council’s order granting Vindich’s building permit. I also concur insofar as the

majority affirms the chancery court’s denial of Vindich’s counterclaim for slander of title and

holds that Vindich is not entitled to recover attorney’s fees for the trial or appeal. I

respectfully dissent in part because the City’s interpretation of its ordinance cannot be

45 upheld. Although there are reasonable interpretations of the subject ordinance under which

the City could have granted Vindich’s application for a building permit, the City’s

interpretation is manifestly unreasonable. For that reason, the judgment of the chancery court

should be reversed in part, and the City Council’s order should be vacated.

I. The chancery court had jurisdiction to decide Vindich’s claim that the City improperly granted a variance without notice.

¶68. As a threshold matter, Vindich argues that the circuit court lacked jurisdiction because

Wheelan failed to appeal the City Council’s decision within ten days as required by

Mississippi Code Annotated section 11-51-75 (Rev. 2019).21 However, our Supreme Court

has “held that a direct appeal [under section 11-51-75] is not the exclusive remedy when the

complaining parties did not receive notice, if notice was required.” Tippah County v.

LeRose, 283 So. 3d 149, 153 (¶13) (Miss. 2019) (emphasis omitted; emphasis added). In the

present case, Wheelan was not entitled to notice of the hearing before the City Council if it

involved nothing more than a run-of-the-mill application for a building permit. But Wheelan

was entitled to notice if the Council’s decision in substance granted Vindich a variance from

the requirements of the City’s Uniform Development Ordinance (UDO). Thus, the

jurisdictional issue that Vindich raises is bound up with Wheelan’s claim that the City

unlawfully granted a variance without notice. I agree that we have jurisdiction to consider

21 While this case was pending, the Legislature amended section 11-51-75 to provide that such an appeal should be filed by filing a notice of appeal rather than a bill of exceptions. See 2018 Miss. Laws ch. 448, § 1 (H.B. 1239).

46 the merits of that claim. Cf. Bell v. Hood, 327 U.S. 678, 682-83 (1946) (holding that federal

courts have jurisdiction to decide claims that allegedly arise under federal law unless the

claim “clearly appears to be immaterial and made solely for the purpose of obtaining

jurisdiction or . . . is wholly insubstantial and frivolous”).

II. The City’s interpretation of the zoning ordinance is manifestly unreasonable.

¶69. Although this case has a lengthy procedural history and the record includes hearings

before the Planning Commission and the City Council and a bench trial in chancery court,

the dispositive legal issue in the case is narrow: whether the City’s interpretation of Section

5.4.4.F of the City’s UDO is “manifestly unreasonable.” Hatfield v. Bd. of Supervisors of

Madison Cnty., 235 So. 3d 18, 21-22, 25 (¶¶9, 20, 35) (Miss. 2017). Section 5.4.4.F, which

applies to the “Low Density Single-Family Residential District,” states:

F. Maximum Lot Coverage—Twenty-five (25) percent for the principal structure and accessory structures. Accessory structures shall not exceed twenty (20) percent of the rear lot area or fifty (50) percent of the main building area, whichever is less.

The dispute in this case focuses on the second sentence of this provision and, more

specifically, the City’s interpretation of “main building area.”22 The provision is ambiguous

22 On appeal, Wheelan alleges that Vindich’s metal building also violates the ordinance because it “exceed[s] twenty (20) percent of the rear lot area”; however, Wheelan ultimately states that the rear-lot-area calculation is “immaterial” because he should prevail on other grounds. In any event, Wheelan waived this issue because he failed to present any evidence or argument on the issue in the chancery court. See, e.g., Adams v. Bd. of Supervisors of Union Cnty., 177 Miss. 403, 170 So. 684, 685 (1936) (“It is a long-established rule in this state that a question not raised in the trial court will not be considered on

47 because, among other reasons, the UDO does not define “main building area.”

¶70. As an initial matter, the record does not include a clear statement of the City’s

Council’s interpretation of the ordinance. The Council voted 4-3 to grant Vindich’s

application for a building permit, but the Council’s order does not specify how it interpreted

the ordinance or why it granted the application. The City represents that the Council

interpreted the phrase “main building area” to mean the “entire lot,” which is the primary

interpretation that Vindich urged before the Planning Commission and City Council. See

City’s Br. at 4-5. The City’s planning director, Scott Ankerson, also testified at trial that the

City Council adopted Vindich’s interpretation and that the planning department has applied

that interpretation ever since. Given that Wheelan does not dispute this point, it is

appropriate to accept the City’s representation regarding the Council’s interpretation.

¶71. The problem is that the City’s interpretation of Section 5.4.4.F leads to absurd results

and renders parts of the ordinance meaningless. For example, while the City’s interpretation

of “main building area” would permit the homeowner to build accessory structures covering

up to fifty percent of the “entire lot,” the immediately preceding sentence of the ordinance

limits the principal structure and all accessory structures combined to only twenty-five

percent of the lot area. Logically, twenty-five percent of the lot is always less than fifty

percent of the lot. Therefore, the twenty-five-percent limitation in the first sentence will

always control—and the City’s interpretation of the fifty-percent limitation will never apply.

appeal.”).

48 As a result, the City’s interpretation of the phrase “main building area” renders that very

phrase a nullity.

¶72. The City’s interpretation of “main building area” also cannot be reconciled with the

first part of the same sentence. The first part of the sentence states that accessory structures

“shall not exceed twenty (20) percent of the rear lot area.”23 Logically, twenty percent of the

rear lot area will always be less than fifty percent of the entire lot. Therefore, the twenty-

percent limitation will always control, and the City’s interpretation of the fifty-percent

limitation will never apply. Thus, for this reason as well, the City’s interpretation of “main

building area” to mean the “entire lot” renders that very phrase a nullity.

¶73. We are bound by a local government’s interpretation of its zoning ordinances unless

the interpretation is “manifestly unreasonable.” Hatfield, 235 So. 3d at 21-22, 25 (¶¶9, 20,

35).24 However, “[a] construction which will render any part of a statute inoperative,

23 As noted above, Vindich failed to present any evidence or argument regarding the rear-lot-area limitation in the chancery court. Therefore, that limitation is not at issue in this appeal. See supra note 22. 24 In Hatfield, the Supreme Court reaffirmed this deferential standard of review over a dissent. See id. at 25-29 (¶¶38-46) (Coleman, J., dissenting) (arguing that the interpretation of an ordinance is a question of law and should be reviewed de novo). Since Hatfield was decided, the Supreme Court has held that a state agency’s interpretation of a statute is a question of law that a reviewing court must review de novo, King v. Miss. Military Dep’t, 245 So. 3d 404, 408 (¶12) (Miss. 2018), and that a state agency’s “[i]nterpretation of a rule or regulation governing the agency concerns a matter of law, which is reviewed de novo, with great deference afforded to the agency’s interpretation of the rule.” Miss. Div. of Medicaid v. Windsor Place Nursing Ctr. Inc., 296 So. 3d 68, 72 (¶15) (Miss. 2020). However, I agree with the majority that Hatfield continues to state the applicable standard of review of a city council’s interpretation of a zoning ordinance.

49 superfluous, or meaningless is to be avoided.” Hemphill Constr. Co. v. City of Clarksdale,

250 So. 3d 1258, 1263 (¶15) (Miss. 2019) (quoting McCaffrey’s Food Mkt. Inc. v. Miss. Milk

Comm’n, 227 So. 2d 459, 463 (Miss. 1969)). “Courts are not at liberty to ascribe to any

statute a construction which would make a part of it, in some cases, meaningless and

ineffective if another reasonable construction can be found which would give it meaning and

effectiveness in all cases within its purview.” Davis v. Miller, 202 Miss. 880, 890, 32 So.

2d 871, 873 (1947).

¶74. The City’s interpretation of the ordinance in this case is manifestly unreasonable

because it renders meaningless the “main building area” language and its fifty-percent

limitation. As set out above, under the City’s interpretation of the ordinance, this language

and limitation will never apply. Such an interpretation of the ordinance is manifestly

unreasonable and cannot be upheld if there is a reasonable alternative interpretation that will

give effect to all of its provisions.

¶75. Reasonable alternative interpretations are available. For example, “main building

area” could be interpreted to mean the area of the main building on the property—in this

case, Vindich’s home. This was how the City’s planning director originally interpreted the

ordinance when he denied Vindich’s application.

¶76. Moreover, this interpretation of “main building area” would permit two different

reasonable alternative interpretations of the ordinance. In relevant part, the ordinance states,

“Accessory structures shall not exceed . . . fifty (50) percent of the main building area . . . .”

50 The City could interpret this language to mean that the combined area of all accessory

structures on the property shall not exceed fifty percent of the area of the home. Because

Vindich already has other accessory structures on his property, this interpretation would not

permit him to build his 1,410-square-foot metal building. However, the City also reasonably

could interpret the ordinance to mean only that no one accessory structure may exceed fifty

percent of the area of the home—i.e., as a limit on the size of each individual accessory

structure, not a limit on the total area of all such structures. This interpretation would permit

Vindich to build his metal building.

¶77. In addition, the phrase “main building area” reasonably could be interpreted as a

reference to the “Maximum Lot Coverage” that the ordinance establishes for all principal and

accessory structures, i.e., twenty-five percent of the lot. That is, the “main building area”

could be read to mean the maximum area that buildings may cover. The first sentence of the

ordinance establishes that the principal structure and all accessory structures may not cover

more than twenty-five percent of the lot—in this case, 8,276.4 square feet. The “main

building area” limitation could be interpreted to permit the homeowner to allocate up to fifty

percent of that area to accessory structures. This interpretation would also permit Vindich

to build his 1,410-square-foot metal building.

¶78. In summary, the City’s interpretation of Section 5.4.4.F of its UDO is manifestly

unreasonable. Therefore, we should reverse the judgment of the chancery court with

instructions to vacate the City Council’s order granting the building permit. The Council

51 would be free to revisit Vindich’s application based on a reasonable interpretation of the

ordinance.

CARLTON, P.J., JOINS THIS OPINION.