Heroman, et al. v. Mayor and Bd. of Aldermen of the City of Pass Christian, et al.
| Docket Number: | 2003-CC-01466-SCT Linked Case(s): 2003-CC-01466-SCT |
|
| Supreme Court: | Opinion Link Opinion Date: 08-19-2004 Opinion Author: Smith, C.J. Holding: Affirmed |
|
| Additional Case Information: |
Topic: Zoning - Nonconforming use - Notice of hearing Judge(s) Concurring: Waller and Cobb, P.JJ., Carlson, Graves, Dickinson and Randolph, JJ. Non Participating Judge(s): Diaz, J. Dissenting Author : Easley, J. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - STATE BOARDS AND AGENCIES |
|
| Trial Court: |
Date of Trial Judgment: 05-29-2003 Appealed from: Harrison County Circuit Court Judge: Stephen Simpson Disposition: The board of aldermen and mayor reversed the decision of the zoning board and held that the Palace in the Pass was a legal continuation of a nonconforming use. Heroman and other objectors then appealed to the circuit court which affirmed. Case Number: A2401-02-00065 |
|
| Party Name: | Attorney Name: | |||
| Appellant: | William J. Heroman, Janet L. Heroman, Eric Lynch, Nicholas Augustus, IV, Timothy Koerner, Ann Koerner, Hilda Williams and Barbara Scott |
FLOYD J. LOGAN |
||
| Appellee: | Mayor Billy McDonald and Board of Aldermen of the City of Pass Christian, Mississippi, and Phyllis Hughes and Randy Tuggle, Intervenors | PRO SE FRANK R. McCREARY, III |
|
|
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: | Zoning - Nonconforming use - Notice of hearing |
| Summary of the Facts: | Randy Tuggle and Phyllis Hughes purchased property commonly known as the “Palace in the Pass” from the Cecil R. Ruddock Post 5931, Veterans of the Foreign Wars of the United States. They applied to the Pass Christian Code Office for a building permit for structural repair to the building. At that time, Hughes informed the assistant officer that the upstairs of the subject property would be used for residential purposes and the downstairs would be used as a reception hall. The permit application was completed, with the assistant code officer filling in the occupancy as “Single-Family Dwelling.” Objectors, William J. Heroman, et al, are the owners of real property situated, adjoining, and/or surrounding the Pass property. They applied to the zoning board for administrative review and interpretation of the zoning ordinance or map of the city concerning the owners’ use of the property. After conducting a public hearing on the issue, the zoning board held that the Palace in the Pass was not a continuation of a legal nonconforming use and was therefore in violation of the zoning ordinance. An appeal was filed with the Mayor and Board. The Board of Aldermen and mayor subsequently reversed the decision of the zoning board and held that the Palace in the Pass was a legal continuation of a nonconforming use. Heroman and other objectors then appealed to the circuit court which affirmed. The objectors appeal. |
| Summary of Opinion Analysis: | The right to continue a nonconforming use is not a personal right but one that runs with the land. This right may not be terminated or destroyed by change of ownership of property alone. The objectors first argue insufficient notice, asserting the Board should have followed Section 1005.2 of the city zoning ordinances which requires notice to be mailed not less than fifteen prior to hearing, to the owner(s) of all properties within a radius of three-hundred feet of the external boundaries of the property described in the application for special exception. However, this section only applies where the action taken by the zoning board concerns a special exception permit. Continuation of a nonconforming use flows with the land and does not require application for special exception unless the nonconforming use was lost. The objectors also argue that the owners lost or abandoned the benefits of their nonconforming use status by obtaining a certificate of occupancy of the building as a single-family dwelling. This argument fails since testimony from the permanent zoning officer and former V.F.W. Post Master Scarborough showed that not only that there had been a mistake by an inexperienced assistant code officer, but that the use of the second floor as a rental property for residence had been part of or included in the nonconforming use of the property along with the weddings, receptions, parties, and other activities held on the first floor. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
