IN RE MUN. BOUNDARIES OF CITY OF BILOXI

• Decision Date: 29 July 1999
• Docket Number: No. 97-AN-00613-SCT.,97-AN-00613-SCT.
• Citation: 744 So.2d 270
• Parties: In the Matter of the ENLARGEMENT AND EXTENSION OF the MUNICIPAL BOUNDARIES OF the CITY OF BILOXI, Mississippi. George S. Lee, Gerald Fountain, Albert Goss, Paul McKay, Janice Massey, Martha Spence, Jerry Benedict, Carolyn Richardson, Harrison County, Mississippi and Harrison County School District v. City of Biloxi, Mississippi; City of D'Iberville, Mississippi; And Biloxi Public School District.
• Court: Mississippi Supreme Court

744 So.2d 270

In the Matter of the ENLARGEMENT AND EXTENSION OF the MUNICIPAL BOUNDARIES OF the CITY OF BILOXI, Mississippi.

George S. Lee, Gerald Fountain, Albert Goss, Paul McKay, Janice Massey, Martha Spence, Jerry Benedict, Carolyn Richardson, Harrison County, Mississippi and Harrison County School District v. City of Biloxi, Mississippi; City of D'Iberville, Mississippi; And Biloxi Public School District.

No. 97-AN-00613-SCT.

Supreme Court of Mississippi.

July 29, 1999.

Joseph R. Meadows, Albert Lionel Necaise, Gulfport, Dale F. Schwindaman, Jr., Jackson, Karen J. Young, Gulfport, Attorneys for Appellants.

Virgil G. Gillespie, Gulfport, Holmes S. Adams, Jackson, Jerry L. Mills, Ridgeland, Ronald G. Peresich, Biloxi, James L. Carroll, Jackson, Virginia LoCoco, Diberville, William Armistead, Tupelo, Greg A. Caraway, Jackson, Attorneys for Appellees.

EN BANC.

SMITH, Justice, for the Court:

¶ 1. This case comes to the Court on appeal from the Chancery Court of Harrison County by certain resident objectors aggrieved by the Chancellor's determination of reasonableness as to a portion of parcel A of the proposed annexation area in the City of Biloxi's 1995 annexation ordinance enlarging the city's corporate boundaries. We hold the chancellor's determination was reasonable as to parcel A. Therefore, we affirm.

¶ 2. This case was consolidated with the case of City of Biloxi v. City of D'Iberville which was substituted for the D'Iberville Water and Sewer District (the "District"), wherein Biloxi appealed from an adverse ruling of the Circuit Court of Harrison County concerning allegations of due process violations and Biloxi's failure to timely file a Bill of Exceptions.

¶ 3. On June 11, 1999, Biloxi and D'Iberville filed a joint motion to dismiss that appeal and announced same to this Court at oral argument on June 14, 1999. Having considered that motion, we agree with the parties and dismiss the case by separate order.

STATEMENT OF THE CASE

Statement of the Facts

¶ 4. On March 6, 1995, the Biloxi City Council unanimously adopted an ordinance enlarging the city's corporate boundaries. The ordinance included a valid legal description of five parcels of annexed territory which are listed as Parcels A through E and are delineated on the map and are generally referred to as follows:

Parcel A—the northern annexation area—it consists of a large area north of the Tchoutacabuffa River and across I-10 to the DeSoto National Forest (the majority of the area and the only parcel contested by the objectors).

Parcel B—the Goat Island annexation area—it consists of mostly water in the Back Bay and the unpopulated island known as Goat Island.

Parcel C—the Deer Island annexation area—it consists of portions of the Mississippi Sound and the unpopulated Deer Island.

Parcel D—the Fernwood School annexation area—a very small area on the Gulfport/Biloxi border that includes Fernwood Junior High School.

Parcel E—the Beauvoir annexation area—this the Jefferson Davis historical site known as Beauvoir.

¶ 5. The ordinance also contained a valid legal description of the boundaries for the entire city after the annexation. The proposed annexation area (hereinafter, the "PAA") was approximately 54 square miles of which 28 percent is water. The ordinance of annexation described in general the proposed improvements to be made in the annexed territory, the time frame of such improvements, and the municipal services to be provided.

The Proceedings Below

¶ 6. On March 21, 1995, the City of Biloxi, Mississippi (hereinafter "Biloxi") filed its Petition for Approval, Ratification and Confirmation of the Enlargement or Extension of its Municipal Boundaries. Various entities, including Harrison County, Mississippi, the Harrison County School District, and the individual objectors (collectively as the "Objectors") as well as the City of D'Iberville ("D'Iberville"), intervened and filed objections to this proposed annexation.

¶ 7. Rather than initially joining the Objectors, the D'Iberville Water & Sewer District (the "District") petitioned the Harrison County Board of Supervisors (the "Board") to annex a certain area of Harrison County adjacent to its present boundaries on May 13, 1996, which happened to encompass a portion of parcel A as proposed for annexation by Biloxi. Specifically, the area to be annexed by the District was based on the following legal description:

The POINT OF BEGINNING of the area to be annexed is the point where the center line of Cypress Creek intersects the Harrison/ Jackson County lines; from said POINT OF BEGINNING run thence North along the East line of Harrison County, Mississippi, and the West line of Jackson County, Mississippi, to the Northeast corner of Section 21, Township 6 South, Range 9 West, Harrison County, Mississippi; thence run West and along the North line of Section 21, Section 20, and Section 19 to the point where the center line (running North and South) of Section 19, Township 6 South, Range 9 West intersects the North line of said Section; thence run South and along said center line of Sections 19, 30, and 31, Township 6 South, Range 9 West and continuing along the center line of Sections 6 and 7 of Township 7 South, Range 9 West to the point where the center line of said Section 7 intersects the North right-of-way of Interstate Highway No. 10; thence run East along the North margin of the right-of-way of Interstate 10 to the point where the East line of Section 8, Township 7 South, Range 9 West intersects said North margin; from said point run thence North along said Section line and along the West line of the city limits of D'Iberville, Mississippi, to the point that such line, or an extension thereof, intersects the centerline of the Tchoutacabuffa River; thence run East along the center line of the Tchoutacabuffa River and Cypress Creek to the POINT OF BEGINNING.

¶ 8. A hearing was noticed via publication in The Sun Herald on May 17, May 24, May 31, and June 7, 1996. At the public hearing on June 10, 1996, the Board entered a Resolution for the District's petition to go into effect on July 8, 1996. Notice of this Resolution was via publication in The Sun Herald on June 19, June 26, and July 23, 1996.

¶ 9. On July 23, 1996, Biloxi filed a Notice of Appeal to the Circuit Court of Harrison County, Second Judicial District, Mississippi, contesting the decision of the Board. The District filed a motion to docket and dismiss for failure to properly perfect the appeal and a hearing was held on October 11, 1996. Meanwhile, the trial of the Biloxi annexation case with the Special Chancellor W.E. Bearden, Jr., presiding, began on October 14, 1996, and concluded on November 7, 1996.

¶ 10. On October 16, 1996, the Circuit Court entered an order dismissing Biloxi's appeal of the Board's decision for lack of jurisdiction due to the failure of Biloxi to file a proper bill of exceptions.

¶ 11. Aggrieved by the circuit court dismissal for lack of jurisdiction, Biloxi timely appealed to this Court and raised the following contention of error:

I. WHETHER THE CIRCUIT COURT ERRED IN DISMISSING BILOXI'S APPEAL WHERE THE REASON FOR BILOXI'S FAILURE TO TIMELY FILE A BILL OF EXCEPTIONS WAS DUE TO THE VIOLATION OF ITS DUE PROCESS RIGHTS.

¶ 12. By order dated June 30, 1997, this Court substituted D'Iberville for the District as the Appellee. By order dated December 22, 1997, this Court sua sponte consolidated this appeal with the collateral case involving these parties and issues. In that order, this Court abated determination of the one contention of error until such time as the Biloxi annexation case reached a Final Judgment.

¶ 13. On February 14, 1997, the Chancellor entered his opinion approving the Biloxi annexation of Parcels B through E entirely, and most of Parcel A. Annexation of Parcel A was specially reduced so as not to overlap with area annexed by the District and immediately north of D'Iberville. Specifically, annexation of a portion of parcel A was approved according to the following legal description:

All of that property located in Harrison County, Mississippi, BEGINNING at a point where the marked channel of Back Bay of Biloxi or Big Lake, as the same may be designated, intersects a line common to Sections 20 and 21, Township 7 South, Range 10 West, and, from said POINT OF BEGINNING, run northerly, along said line common to section 20 and 21, Township 7 South, Range 10 West, to the point of intersection with the thread of the Big Biloxi River; thence following the meanderings of the thread of said Bib Biloxi River, run in a general northerly and northwesterly direction, through Sections 5, 8, and 17, Township 7 South, Range 10 West, Sections 31 and 32, Township 6 South, Range 10 West; thence continuing along the thread of said river in a generally northerly and northwesterly direction to its intersection with the west line of Section 30, Township 6 South, Range 10 West; thence northerly along the west line of said Section 30 to the half section line; thence easterly along the half section lines of Sections 30, 29, 28, 27, 26, and 25, Township 6 South, Range 10 West to the west line of Section 30, Township 6 South, Range 9 West; thence easterly along the half section line of said Section 30 to the middle of said section; thence southerly along the center line of Section 30 and 31, Township 6 South, Range 9 West; and continue southerly along the center line of Sections 6 and 7, Township 7 South, Range 9 West to the point where the center line of said Section 7 intersects the south right-of-way line of U.S. Interstate Highway 10; thence run in a westerly direction, along said south right-of-way line of U.S. Interstate Highway 10, to the intersection with the thread of Tchoutacabuffa River in Section 12, Township 7 South, Range 10 West; thence, following the meanderings of the thread of said Tchoutacabuffa River, run in a general southwesterly direction to the mouth of said river at

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