City of Gulfport v. McHugh
| Docket Number: | 2009-CA-00244-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 06-29-2010 Opinion Author: Lee, P.J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Real property - Alteration of subdivision plat - Section 17-1-23(4) - Notice to interested parties Judge(s) Concurring: King, C.J., Myers, P.J., Irving, Griffis, Ishee, Roberts and Maxwell, JJ. Non Participating Judge(s): Barnes and Carlton, JJ. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 01-12-2009 Appealed from: Harrison County Circuit Court Judge: Roger T. Clark Disposition: REVERSED AND VACATED ORDER OF PLANNING COMMISSION SUBDIVIDING LOT Case Number: A2401-07-393 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | City of Gulfport, Mississippi |
MARGARET E. MURDOCK |
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| Appellee: | Gregory McHugh; Tammy McHugh; Mary Batchelor, Deceased; Mary L. Mohler; Jim Batchelor, Son of Mary Batchelor; James Athanaelos; Patricia A. Drake; Dr. Geddes B. Flagg; Nona McDonnell Flagg; Janice Toon Norman; Bruce Norman; Betty Toon Collins; Frank Collins; Philip W. Shaw, Jr.; and Betty Shaw | BETTY TOON COLLINS, T. FRANK COLLINS | ||
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 - Alteration of subdivision plat - Section 17-1-23(4) - Notice to interested parties |
| Summary of the Facts: | The Gulfport Planning Commission held a hearing on the request of Charles and Denise Hubbard to alter the subdivision plat to subdivide one lot they owned into two lots by inserting an interior lot line. The neighboring property owners were not notified of the meeting. After the hearing, the Commission submitted a recommendation to the city council recommending that the request be approved. The City notified the Hubbards and the neighboring residents that it would consider the issue. The adjoining property owners to the north and south, Phil Shaw and Greg McHugh, argued that the division of the Hubbards’ lot would be inconsistent with the neighborhood’s restrictive covenants and detrimental to the subdivision. After the hearing, the City denied the Hubbards’ request. However, the City met again to reconsider the request. The neighboring property owners were not notified of the meeting, but some neighbors who learned of the meeting attended to voice their objection. Those who were unable to attend submitted a petition opposing the request. After Charles submitted an affidavit stating that he would not build a duplex on either lot if his request was granted, the City approved the request to make the lot two separate lots. Notice of the approval was sent to the Hubbards and some of the neighboring property owners. Two groups, the adjacent property owners and other residents of the subdivision, filed a bill of exceptions in circuit court. The circuit court found that the Hubbards had failed to follow proper statutory procedure, such as notifying interested parties and obtaining written approval, in their attempt to alter the subdivision plat, and vacated the decision of the City. The City appeals. |
| Summary of Opinion Analysis: | The City argues that the insertion of an interior lot line into a parcel of property in a subdivision is not considered a vacation or alteration of the subdivision plat as to invoke the provisions of section 17-1-23(4). The Hubbards failed to follow statutory procedure by not notifying the adversely affected or directly interested parties and obtaining their approval in writing. Further, it was not determined who the appropriate adversely affected or directly interested parties were. The terms “adversely affected” and “directly interested” are not defined in section 17-1-23(4); thus, this was a factual issue that should have been determined by the Commission. Since the Hubbards failed to follow the mandatory provisions of section 17-1-23(4), the decision of the Commission allowing the division of the Hubbards’ property was in error. |
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