Am. Tower Asset Sub, LLC v. Marshall Cnty.

• Decision Date: 02 September 2021
• Docket Number: NO. 2020-CA-00718-SCT,2020-CA-00718-SCT
• Parties: AMERICAN TOWER ASSET SUB, LLC d/b/a American Tower Corporation v. MARSHALL COUNTY, Mississippi, and Tillman Infrastructure, LLC
• Court: Mississippi Supreme Court

324 So.3d 300

AMERICAN TOWER ASSET SUB, LLC d/b/a American Tower Corporation

v.MARSHALL COUNTY, Mississippi, and Tillman Infrastructure, LLC

NO. 2020-CA-00718-SCT

Supreme Court of Mississippi.

September 2, 2021

ATTORNEYS FOR APPELLANT: MICHAEL J. BENTLEY, SIMON T. BAILEY

ATTORNEYS FOR APPELLEES: AMANDA WHALEY SMITH, MICHAEL K. GRAVES, THOMAS WALLER

BEFORE KING, P.J., MAXWELL AND GRIFFIS, JJ.

GRIFFIS, JUSTICE, FOR THE COURT:

¶1. In this appeal, we consider the dismissal of an appeal of a decision by a board of supervisors under Mississippi Code Section 11-51-75 (Rev. 2019). Finding reversible error, we remand the case for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶2. Tillman Infrastructure, LLC, sought to build a 290-foot tower in Marshall County on a plot designated an agricultural zone. Tillman applied for a special exception through the Marshall County Planning Commission, and the request was approved.

¶3. American Tower Corporation owns an existing wireless-telecommunications tower that is approximately a quarter of a mile from Tillman's proposed tower. American Tower opposed Tillman's request for a special exception.

¶4. Tillman's application was considered at the November 18, 2019 meeting of the Marshall County Board of Supervisors. American Tower argued that Tillman could not satisfy the standards for a special exception. The board unanimously approved Tillman's request for a special exception.

¶5. Eight days later, on November 26, 2019, American Tower filed a notice of appeal in the Marshall County Circuit Court. The same day, American Tower hand delivered and emailed a copy of the notice of appeal to the Marshall County Chancery Clerk.¹ American Tower emailed a copy of the notice of appeal to Tillman's attorney. At the board's regularly scheduled meeting, on December 16, 2019, the board clerk provided a copy of the notice of appeal to the board president and the other board members.

¶6. Marshall County filed a motion to dismiss the appeal and argued that the circuit court lacked jurisdiction. Marshall County claimed that American Tower failed to provide notice to the board president of the board of supervisors as required by Mississippi Code Section 11-51-75. Tillman joined the motion and also argued that American Tower lacked standing to prosecute its appeal.

¶7. On March 3, 2020, the circuit court entered an order that granted the motion to dismiss. The court ruled:

The above-styled appeal came before the Court on Appellee Marshall County, Mississippi's Motion to Dismiss Appeal. The Court finds the motion to dismiss is hereby GRANTED. The Court finds the appellant did not comply with the mandatory notice requirements of Miss. Code Ann. Sec. 11-51-75 (2018) as appellant did not deliver notice of the appeal to the president of the Marshall County Board of Supervisors.

Additionally, Appellee Tillman Infrastructure, LLC ("Tillman") moves the Court to dismiss this appeal against Tillman. The Court hereby reserves ruling on Tillman's motion to dismiss until the parties have fully briefed the Court on the issue of whether the appellant has standing to pursue this appeal solely against Tillman.

¶8. After the parties presented supplemental briefing on standing, the circuit court entered a final order that held:

After considering the arguments and authority presented to the Court on this issue at hearing and in briefings, the Court now finds Tillman Infrastructure, LLC shall be dismissed as a party. The Court finds under Miss. Code Ann. Sec. 11-51-75 (2018) the appellant does not have standing to assert a private cause of action here against Appellee Tillman Infrastructure, LLC.

Therefore, Tillman Infrastructure, LLC's Motion-to Dismiss is hereby GRANTED, and the claims against Tillman on appeal are DISMISSED WITH PREJUDICE.

STANDARD OF REVIEW

¶9. This Court reviews matters of statutory interpretation de novo. Chandler v. McKee , 202 So. 3d 1269, 1271 (Miss. 2016). "If the words of a statute are clear and unambiguous, the Court applies the plain meaning of the statute and refrains from using principles of statutory construction." Hall v. State , 241 So. 3d 629, 631 (Miss. 2018) (internal quotation marks omitted) (quoting Lawson v. Honeywell Int'l, Inc. , 75 So. 3d 1024, 1027 (Miss. 2011) ). "This Court ‘cannot ... add to the plain meaning of the statute or presume that the legislature failed to state something other than what was plainly stated.’ " Lawson , 75 So. 3d at 1030 (alteration in original) (citing His Way Homes, Inc. v. Miss. Gaming Comm'n , 733 So. 2d 764, 769 (Miss. 1999) ). But if the statute is ambiguous or silent on a specific issue, statutory interpretation is appropriate, and the Court must "ascertain the intent of the legislature from the statute as a whole and from the language used therein." BancorpSouth Bank v. Duckett (In re Guardianship of Duckett) , 991 So. 2d 1165, 1181-82 (Miss. 2008) (internal quotation mark omitted) (quoting Bailey v. Al-Mefty , 807 So. 2d 1203, 1206 (Miss. 2001) ).

ANALYSIS

¶10. This Court must determine whether American Tower properly perfected its appeal under Mississippi Code Section 11-51-75 (Rev. 2019).

¶11. This is a matter of first impression before this Court because the Legislature recently amended Section 11-51-75. Prior decisions of this Court interpreted Section 11-51-75 and ruled that the appellant must properly file a bill of exceptions to initiate an appeal.² In City of Jackson v. Allen , this Court explained the history of bills of exceptions and overruled several earlier decisions in an effort "to restore fairness and sensibility to the bill of exceptions process[.]" City of Jackson v. Allen , 242 So. 3d 8, 14-23 (Miss. 2018). We further interpreted the procedure for such appeals "going forward[.]" Id.

¶12. After Allen , the Legislature amended Section 11-51-75 and removed the bill-of-exceptions requirement. Under the revised statute, an aggrieved party may appeal a decision of the board of supervisors by filing a notice of appeal.³ Section 11-51-75 now reads:

Any person aggrieved by a judgment or decision of the board of supervisors of a county ... may appeal the judgment or decision to the circuit court of the county in which the board of supervisors is the governing body .... A written notice of appeal to the circuit court must be filed with the circuit clerk within ten (10) days from the date at which session of the board of supervisors ... rendered the judgment or decision. Upon filing, a copy of the notice of appeal must be delivered to the president of the board of supervisors ... and, if applicable, to any party who was a petitioner before the board of supervisors ....

(a) The notice of appeal filed in the circuit court with the circuit clerk shall contain the following:

(i) The name of the county board of supervisors ... as the appellee. If applicable, any party who was a petitioner before the board of supervisors ... shall be named as an appellee.

(ii) A succinct statement of the reasons, or grounds, for the appeal.

(iii) A written description or designation of record which includes all matters that the appellant desires to be made part of the record.

(iv) Appellant must also deliver a copy of the notice of appeal and a written designation of the record, along with a list of all documents or transcripts in appellant's possession, to the clerk of the board of supervisors ....

(b) An appellee has ten (10) days from the filing of the notice of appeal with the circuit clerk to designate any other items or matters that appellee believes should be included in the designated record.

(c) The clerk of the board of supervisors ... must assemble a complete record of the proceedings to include all writings, matters, items, documents, plats, maps and transcripts of proceedings that were part of the record and deliver the complete record to the circuit clerk within thirty (30) days after the filing of the notice of appeal with the circuit clerk. The clerk of the board of supervisors ... shall certify that the record is accurate and complete and contains all writings, matters, items, documents, plats, maps and transcripts of proceedings designated by appellant and appellee in their designations of record.

(d) The circuit court, as an appellate court, either in term time or in vacation, shall hear and determine the same on the record and shall affirm or reverse the judgment. The circuit court shall enter an order establishing a briefing schedule and a hearing date, if any, for the parties to appear and present oral argument. If the judgment is reversed, the circuit court shall render such judgment or decision as the board of supervisors ... ought to have rendered, and certify the same to the board of supervisors .... Costs shall be awarded as in other cases.

Miss. Code Ann. § 11-51-75 (Rev. 2019).

¶13. American Tower's notice of appeal was filed within ten days, and it complied with Section 11-51-75(a)(i)-(iv).

¶14. The question here concerns whether the service or delivery of the notice of appeal satisfied the third sentence of Section 11-51-75. It states, "Upon filing, a copy of the notice of appeal must be delivered to the president of the board of supervisors ...." Miss. Code. Ann. § 11-51-75. American Tower did not deliver a copy of the notice of appeal to the president of the board of supervisors. Instead, American Tower delivered a copy of the notice of appeal to the chancery clerk, who also served as the board's clerk.

¶15. In the motion to dismiss, Marshall County and Tillman argued that the failure to serve the president of the board of supervisors was a jurisdictional defect that required dismissal. American Tower claimed it was not jurisdictional but rather a procedural defect that could be remedied and did not deprive the circuit court of jurisdiction. The circuit court ruled that it was jurisdictional and dismissed the appeal.

¶16. We disagree. In the 2018 amendment, the Legislature removed the bill-of-exceptions requirement in Section 11-51-75. The...