Carroll v. City of Canton

• Citation: 296 So.3d 751
• Decision Date: 12 May 2020
• Docket Number: NO. 2019-CC-01146-COA,2019-CC-01146-COA
• Parties: Elizabeth Ann CARROLL and Thomas B. Butchart, Appellants v. CITY OF CANTON, MISSISSIPPI, Appellee
• Court: Court of Appeals of Mississippi

296 So.3d 751

Elizabeth Ann CARROLL and Thomas B. Butchart, Appellants

v.CITY OF CANTON, MISSISSIPPI, Appellee

NO. 2019-CC-01146-COA

Court of Appeals of Mississippi.

May 12, 2020

ATTORNEY FOR APPELLANTS: JAMES H. HERRING, Canton

ATTORNEY FOR APPELLEE: KIMBERLY CELESTE BANKS, Jackson

BEFORE J. WILSON, P.J., WESTBROOKS AND McDONALD, JJ.

McDONALD, J., FOR THE COURT:

¶1. In 2015, the City of Canton's Board of Aldermen denied Elizabeth Carroll and Thomas Butchart's request for an extension of a special-use permit to operate their RV park. The Board gave them one year to wind down operations. At the end of that time, instead of closing, Carroll and Butchart filed another application for an extension of the permit. The Board denied the application, and Carroll and Butchart appealed to the Circuit Court of Madison County, claiming that the Board's actions were arbitrary and capricious and lacked substantial support. The circuit court affirmed the Board's actions, and Carroll and Butchart appeal to this Court, raising the same arguments. In response, the City claims that this Court lacks jurisdiction, that the appeal is moot, and that the Board's actions were not arbitrary or capricious and were supported by substantial evidence. We find that this Court does have jurisdiction, that the appeal is not moot, and that the Board's actions were not arbitrary or capricious and had sufficient support. We therefore affirm the circuit court's order that approved the City's denial of Carroll and Butchart's request.

FACTS

¶2. Brother and sister Elizabeth Carroll and Thomas Butchart are co-owners of a 5.5 acre parcel of property located at 2747 South Liberty Street (Highway 51) in the city of Canton, Mississippi. The parcel is a portion of twenty-five acres of property they acquired through exchanges with other family members. The acreage was originally zoned as residential.

¶3. In May 2002, the City approved the five acre parcel for use as a recreational vehicle (RV) park, which was incorporated as "Hwy 51 RV Park, Inc." The park's initial intent was to house construction workers when the Nissan plant was being built, but by July 2016, only three-to-four people living there were employed by Nissan. Currently the park, utilized by travelers and full-time residents, averages about forty recreational vehicles (with no mobile homes) at any given time. The units belong to the individuals, but the park provides water, sewer, and electrical service and pays City and State property and income taxes. Butchart spent considerable time and money preparing the site for use.

¶4. Since 2002, the RV park has operated under its "Special Exception/Conditional Use" permit, which has been renewed twice even though the City adopted a Uniform Development Code and the area was re-zoned "C-3" (i.e., commercial). By 2015, other developments in the C-3 commercially zoned RV park area included the Links Apartments, a Bumpers Restaurant, an Exxon Gas Station, a Scott Petroleum, and Bear Creek Store. But across the road, there is a residential subdivision called "Parkside of Eastgate."

¶5. In 2015, Carroll and Butchart again applied for a renewal of the permit. They did not seek a permanent exception or re-zoning. The City's Planning Commission considered their application and recommended an extension of five years.¹ But the Board rejected the recommendation. Instead, the City gave Carroll and Butchart sixty days to cease operations. Carroll and Butchart initiated an appeal of the City's decision by filing a "Bill of Exceptions" in the circuit court. But they withdrew the appeal when they and the Board agreed to a one-year moratorium to enable residents to leave and to give Butchart and Carroll more time to close the RV park.²

¶6. After the expiration of the one-year period given by the Board, the Planning Commission sent Butchart a notice to cease operations. Instead of doing so, on May 11, 2016, Butchart submitted to the Planning Commission another application for renewal of the property's conditional use permit. Butchart admitted that his request was for a temporary, not a permanent, use exception, nor was it a request for re-zoning.

¶7. The matter came before the City's Planning Commission on July 28, 2016. At that time, Butchart, a certified public accountant and owner of other businesses in Madison County, addressed the Board and reviewed the RV park's history. He noted that fifteen years prior, when they obtained their first use exception, he understood that if the presence of the park impeded the growth of the city, it would be shut down. But he argued it has not. It had been well-maintained, landscaped, and fenced. During the hearing, one Planning Commission member commented that even though the RV park existed when the new zoning ordinance passed, it could not be "grandfathered in" because it was not a permanent use, only a temporary use. Butchart's attorney recommended that the Planning Commission look at updating their zoning ordinance so that Butchart would not have to keep coming back to request a special-use exception. But the Planning Commission did not want to get into spot zoning³ and said that the current C-3 designation is really a catch-all designation.

¶8. During the Planning Commission hearing, a letter from the Parkside of Eastgate Homeowners Association was acknowledged in which homeowners who resided within 160 feet of the RV park objected to the special-exception application. However, although the Planning Commission sent homeowners notice of the hearing, no one from the Association appeared to testify. Despite the objection, the Planning Commission recommended that Carroll and Burchart's renewal request be granted and that their permit be extended for two years, until July 2018.

¶9. As previously stated, the Planning Commission had no authority to grant or deny Butchart's request—only to refer its recommendation to the City's mayor and the Board of Aldermen. The mayor and Board met on August 2, 2016 to consider the Commission's recommendation on Butchart's request. One Board member commented that the park's presence had negatively affected the value of the residential homes in the area. Homeowners had been told that the park was not permanent and felt betrayed. There was also concern about criminal activity in the park. Butchart responded that he knew of only a couple of instances when the police had to be called. Board members were also concerned that Butchart had not honored their 2015 decision that gave him time to close. Butchart presented a petition signed by residents of the RV park asking that the park be kept open because of its proximity to many of their worksites and because it was less expensive that the other RV park in the county. Butchart admitted that the park was now a business, and he presented to the Board his compilation of the tax benefits that the business brought to the City. Another Board member was concerned that the Planning Commission and the Board seemed to have different viewpoints on the application. The Board then voted to table the discussion until it could meet with the Planning Commission.

¶10. On August 16, 2016, the Board of Aldermen reconvened. Butchart appeared again and passed out the transcript of the August 2 Board meeting. Alderman Gilkey said that since the last meeting, the Board had realized that it made a decision about the park back in 2015. The Board had not met with the Planning Commission but there was a member of the Planning Commission present whom Alderman Gilkey asked to come forward and speak. That the Board did in fact grant Butchart a one-year moratorium from enforcement of the Board's 2015 decision was confirmed by a review of the minutes from April 7, 2015, which reflected a unanimous vote to "delay enforcement" for one year.

¶11. The Board continued to discuss what it was actually considering—how long of a period of time to give Butchart to close down the park in enforcement of the prior order, or consideration of the Planning Commission's recommendation on a new request. Donald Lawrence, the City's Building and Development Director, confirmed that the Planning Commission had recommended approval of Butchart's request for a two-year extension. However, several aldermen felt that Butchart should have complied with the notice to cease operations instead of being given another chance to present a new application. Butchart was given five minutes to speak, during which time he presented a spreadsheet showing that Parkside Eastgate subdivision homes had increased in value, not decreased. The Board resumed its discussion. A motion to grant Butchart ninety days to cease operations was made. One Board member moved to revise the motion to allow Butchart to operate the RV park indefinitely. This latter motion failed. The Board then voted on the ninety-day extension, which passed by a five-to-two vote.

¶12. On August 25, 2019, Carroll and Butchart filed their notice of appeal from the Canton Board of Alderman's decision in the Circuit Court of Madison County, Mississippi. On August 26, 2016, Carroll and Butchart presented the mayor and the City with their "Bill of Exceptions." The mayor refused to sign it because he believed it included more information than was presented to the Board. The mayor gave Butchart his own Addendum. Butchart and Carroll filed their Bill of Exceptions along with the mayor's Addendum with the Circuit Court of Madison County, Mississippi that day. The Bill of Exceptions and Addendum were later amended with the court's approval.

¶13. Butchart filed a motion for supersedeas, attaching his affidavit and that of a resident of the RV park to show the need for a stay of the Board's decision. After a telephonic hearing on the matter, on October 31, 2016, the circuit court granted the motion and stayed the effectiveness of the decision made by the Board until final resolution of the matter on appeal.

¶14. The docket of the case reflects that no action taken by any party in 2017. I...