McKee v. City of Starkville


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Docket Number: 2009-CP-01833-COA
Linked Case(s): 2009-CP-01833-COA
Court of Appeals: Opinion Link
Opinion Date: 09-14-2010
Opinion Author: Myers, P.J.
Holding: Reversed and remanded.
Additional Case Information: Topic: Real property - Rezoning - Process for appealing - Section 11-51-75 - Bill of exceptions - Notice - Section 17-1-17
Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Ishee, Roberts, Carlton and Maxwell, JJ.
Non Participating Judge(s): Barnes, J.
Dissenting Author : Griffis, J., dissents without separate written opinion.
Procedural History: Admin or Agency Judgment; Bench Trial
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
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: George C. McKee




 PRO SE



  
  • Appellant #1 Brief
  • Appellant #1 Reply Brief
    		•
    Appellee: City of Starkville, Mississippi CHRISTOPHER JAMES LATIMER  
    Synopsis provided by:

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    Topic: Real property - Rezoning - Process for appealing - Section 11-51-75 - Bill of exceptions - Notice - Section 17-1-17
    Summary of the Facts: George McKee applied to the Starkville Planning and Zoning Commission to rezone a piece of property from R-2 (single-family, duplex) to R-5 (multi-family, high-density). The Commission voted unanimously to recommend approval of McKee’s request to the Board based on changing conditions in the neighborhood consistent with R-5 zoning. However, the Mayor and Board of Aldermen denied McKee’s request. McKee, an inactive member of The Mississippi Bar, filed a pro se “Appeal and Complaint” in the Oktibbeha County Circuit Court against the City, in which he claimed he was denied constitutional due process. He asked that the Board’s decision be overruled, and he sought compensatory and punitive damages. McKee also filed a bill of exceptions. The City filed its own bill of exceptions. McKee thereafter filed a motion for partial summary judgment. The circuit court issued an order affirming the Board’s decision. McKee appeals.
    Summary of Opinion Analysis: The method of appeal from a judgment or decision of a governing board is set forth in section 11-51-75, which mandates that the circuit court shall decide such a case as presented by the bill of exceptions as an appellate court. The bill of exceptions is the only record before the circuit court, and the court is not permitted to go outside the record as made in the bill of exceptions. The general rule with respect to bills of exceptions when presented to the proper official for signature appears to be that the such officer or official cannot arbitrarily refuse to sign and return the bill of exceptions merely because he deems the same to be incorrect, but that it is his duty to point out wherein he deems the same to be incorrect, and to note his corrections thereon, and to sign the same as correct. When an accurate bill of exceptions is presented, the president of the board has a duty to sign it; otherwise, a writ of mandamus can be issued requiring that he or she sign it. If the president of the board believes that some defect exists, the aggrieved party is entitled to have the specific defect explained so that a correction may be made. Here, neither party satisfactorily complied with these requirements. McKee erred at the outset of the matter by labeling his initial pleading both as an appeal and a complaint. The only avenue McKee had available to him for seeking relief from the wrong he claimed was done to him by the Board’s order denying his rezoning request was by way of an appeal to the circuit court. Relief through an original action, initiated by filing a complaint in the circuit court, was not an option for McKee in this type of case. With respect to McKee’s bill of exceptions, the bill not only lacked the Mayor’s signature, it also failed to include essential documents. As for the City, it filed its own bill of exceptions and did not inform McKee of the deficiencies in his bill of exceptions. The City’s bill of exceptions inaccurately stated that the Board unanimously voted to deny McKee’s rezoning request, and it wrongly asserted that McKee had filed a notice of appeal to the Board following the Commission’s unanimous decision to recommend that his rezoning request be granted. The circuit court interpreted section 17-1-17 to mean that McKee was not entitled to a public hearing. Based on that interpretation, the circuit court implicitly found that McKee was not entitled to notice of the Board’s meeting. This may very well be an accurate interpretation of the statute. But the record presented to the circuit court was not a proper record by which to review the circuit court’s application of the statute. Section 17-1-17 is an enabling statute, and it contains enumerated conditions. The case is remanded to the circuit court with instructions to allow the parties to file a proper amended bill of exceptions.


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