McKee v. City of Starkville
| Docket Number: | 2009-CP-01833-COA Linked Case(s): 2009-CP-01833-COA |
|
| Court of Appeals: |
Opinion Link Opinion Date: 08-07-2012 Opinion Author: Irving, P.J. Holding: Reversed and remanded |
|
| Additional Case Information: |
Topic: Real property - Rezoning - Subject matter jurisdiction - Section 11-51-75 - Bill of exceptions - Due process - Notice - Section 17-1-17 Judge(s) Concurring: Lee, C.J., Griffis, P.J., Ishee, Roberts, Carlton and Maxwell, JJ. Non Participating Judge(s): Barnes, Russell and Fair, JJ. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - OTHER |
|
| Trial Court: |
Date of Trial Judgment: 09-09-2009 Appealed from: Oktibbeha County Circuit Court Judge: Lee J. Howard Disposition: AFFIRMED CITY’S DENIAL OF REZONING REQUEST Case Number: 2008-0188-CV |
|
| Note: | The motion for rehearing is denied. The previous opinion of this Court is withdrawn, and this opinion is substituted therefor. The judgment of the Oktibbeha County Circuit Court is reversed, and this case is remanded for further proceedings consistent with this opinion. | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | George C. McKee |
PRO SE |
|
|
| Appellee: | City of Starkville, Mississippi | CHRISTOPHER J. LATIMER | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
|
| Topic: | Real property - Rezoning - Subject matter jurisdiction - Section 11-51-75 - Bill of exceptions - Due process - Notice - Section 17-1-17 |
| Summary of the Facts: | The motion for rehearing is denied, and this opinion is substituted for the original opinion. In 2008, George McKee filed an application with the City of Starkville, seeking to rezone .75 acres from R-2 (“single family/duplex”) to R-5 (“multi-family/high-density”). The City’s Board of Aldermen denied the rezoning request. McKee appealed the Board’s decision to circuit court which affirmed. McKee appeals. |
| Summary of Opinion Analysis: | Issue 1: Subject matter jurisdiction Section 11-51-75 provides for an appeal from a decision of a board of supervisors or a municipal authority through a bill of exceptions. The bill of exceptions serves as the record on appeal, and the circuit court may only consider the case as made by the bill of exceptions. If the bill of exceptions is not complete and is fatally defective in that pertinent and important facts and documents are omitted therefrom, then the court does not have a record upon which it can intelligently act. A proper bill of exceptions on appeal is necessary to confer jurisdiction on the appellate court. In this case, McKee’s bill of exceptions did not comply with the procedural requirements set forth in section 11-51-75, because it did not contain the mayor’s signature. The City also failed to comply with the requirements because, rather than noting the portions of McKee’s bill of exceptions that it deemed incorrect and allowing him to amend it, it filed its own bill of exceptions. Neither party has raised the issue of jurisdiction based on the lack of a properly filed bill of exceptions. In addition, the bills of exceptions filed with the circuit court contained the pertinent and important facts and documents and constituted a record upon which the court could intelligently act. Therefore, under these facts, the Court will not dismiss for lack of subject matter jurisdiction. Issue 2: Due process McKee argues that the Board violated his right to due process when it failed to notify him of the meeting where it denied his rezoning application. The City argues that because the Planning Commission recommended approval of McKee’s rezoning application, he was not an aggrieved party and was not entitled to a public hearing before the Board under section 17-1-17. While the plain language of the statute supports the City’s position, it produces a result that is inconsistent with existing case law. The Supreme Court has stated that in proceedings before city zoning authorities, due process requires notice and the opportunity to be heard at all critical stages of the process. Even where a party has not been aggrieved by the recommendation of the city engineer or advisory committee, he is still entitled to notice of the hearing before the governing body of the city where the rezoning request is considered. Because McKee was not given notice of the Board’s meeting where his rezoning request was denied, he was denied due process. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
