Duckett v. Mayor & Bd. of Alderman of the City of Ocean Springs
| Docket Number: | 2008-CA-01329-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 12-15-2009 Opinion Author: Griffis, J. Holding: Reversed and rendered. |
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| Additional Case Information: |
Topic: Real property - Special-use permit - Rezoning Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Barnes, Roberts and Maxwell, JJ. Non Participating Judge(s): Myers, P.J., and Ishee, J. Dissenting Author : Carlton, J., with separate written opinion. Procedural History: Bench Trial Nature of the Case: CIVIL - OTHER |
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| Trial Court: |
Date of Trial Judgment: 07-02-2008 Appealed from: Jackson County Circuit Court Judge: Dale Harkey Disposition: CITY’S INTERPRETATION OF ZONING ORDINANCE AFFIRMED Case Number: 2007-00-130(3) |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Albert Duckett and Alice Duckett |
JOHN PAUL BARBER |
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| Appellee: | Mayor and Board of Alderman of the City of Ocean Springs, Mississippi | KENDALL K. STOCKMAN, JOHN B. EDWARDS | ||
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. |
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| Topic: | Real property - Special-use permit - Rezoning |
| Summary of the Facts: | The City of Ocean Springs issued a building permit to Harbor Landing owners David and Melba Harris authorizing the rebuilding of a ship’s store and a boatstorage facility after Harbor Landing was damaged in Hurricane Katrina. At that time, Harbor Landing offered pre-made sandwiches and other packaged snacks; it had no on-site food preparation. Harbor Landing is a boat-storage facility located on the Ocean Springs harbor, in the limited marina district. Subsequent to the issuance of the permit, Terry Agar, a city building official, read an article in the local newspaper that announced Harbor Landing’s intention to have a deli and sell po-boys and gumbo. Agar sent David Harris a letter warning that the deli would be classified as a restaurant, and the only way Harris would be allowed to operate a restaurant in the harbor zoning area would be to obtain a special-use permit from the City’s planning commission. The Harrises filed a public hearing application with the City requesting that the property be used as a full-service marina. The planning commission voted to deny the specialuse permit. The planning commission also voted to recommend that the Mayor and Board of Alderman of the City of Ocean Springs prepare an agreement with Harbor Landing limiting the scope of food sales to food prepared off site. The Harrises appealed this decision to the Board. Before the appeal was heard, the Harrises requested a clarification of the zoning ordinance. Upon the City’s attorney’s review of the ordinance, it was determined that a special-use permit was not allowed under the relevant ordinance; thus, the Board informed the Harrises that it was impossible for them to obtain a special-use permit. However, the Board further held that the proposed deli qualified as a permitted use under the language of the ordinance. A resolution was passed interpreting this zoning ordinance to allow Harbor Landing to operate a deli. The Ducketts, who own a home on the harbor, appealed the City’s ruling to the circuit court. The circuit court affirmed the resolution of the Board. The Ducketts appeal. |
| Summary of Opinion Analysis: | The Ducketts argue that the City’s decision was arbitrary and capricious because the City interpreted Harbor Landing’s proposal as a permitted use under the zoning ordinance and then placed restrictions on such use. On one hand, the City claims to be interpreting what constitutes a permitted use under its zoning ordinance; on the other hand, it claims to have issued a revocable permit to Harbor Landing listing multiple conditions that must be met to maintain such permit. Both parties agree, based on the opinion of the City’s attorney, that a special-use or conditional-use permit is not permitted in the limited marina district. The City in actuality granted a special use permit. The City’s decision was an attempt to circumvent its inability to issue a special-use permit in the limited marina district. Accordingly, the decision was arbitrary and capricious and beyond the City’s authority. The City essentially attempted to re-zone the limited marina district without complying with the statutory protections attendant to a rezoning action. |
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