Wheelan v. City of Gautier
| Decision Date | 23 February 2021 |
| Docket Number | 2019-CA-01062-COA |
| Citation | 332 So.3d 863 |
| Parties | Martin WHEELAN, Appellant v. CITY OF GAUTIER and David A. Vindich, Appellees |
| Court | Mississippi Court of Appeals |
ATTORNEY FOR APPELLANT: ROBERT E. O'DELL, Pascagoula
ATTORNEYS FOR APPELLEES: EDWARD C. TAYLOR, Gulfport, A. KELLY SESSOMS III, Pascagoula, NATHAN RYNE HAND, Gulfport, NICOLE WALL SULLIVAN, Biloxi
EN BANC.
McDONALD, J., FOR THE COURT:
¶1. Martin Wheelan appeals from the Jackson County Chancery Court judgment upholding the City of Gautier's grant of a building permit to David Vindich, authorizing Vindich to erect a 1,410-square-foot accessory structure on his property. Vindich cross-appeals from the chancery court's judgment that also dismissed his claims against Wheelan for slander of title, as well as the chancery court's order denying him attorney's fees. After a review of the record, arguments of counsel, and relevant precedent, we affirm the chancery court's rulings.
FACTS
¶2. In 2015, Vindich purchased a .76-acre tract in a low-density residential neighborhood in Gautier, Mississippi.1 Vindich's property was larger than most of the quarter-acre lots in the area. Located on the property was Vindich's 2,840-square-foot home, gazebo, pool, and boat house that was built partially on land and partially over the abutting canal.
¶3. Vindich initially desired to build an 1,800-square-foot garage/workshop on the property. In May 2015, before ordering the plans for the building, Vindich met with Scott Ankerson, the city's planning director, to discuss the project.2 According to Vindich, Ankerson verbally approved a 1,410-square-foot building, but Ankerson later denied this. Vindich moved forward and spent $9,800 to purchase the plans that were required to be attached to the formal application for the building permit.
¶4. Vindich's permit application was subject to the building guidelines found in Gautier's Uniform Development Ordinance (UDO) that the city adopted on September 29, 2009 and updated on November 5, 2015. Under Section 4.5 A of the UDO, no building can be erected without a permit issued by the city manager or his designee, who is to insure that the permit conforms to the provisions of the UDO. Under Section 4.5.1 A, all applications for building permits must have the plans for the building attached and a survey drawn to scale.
¶5. A key UDO provision that affected Vindich's project was Section 5.4.4. It set a limit for the total square footage of all buildings on a lot and set limits for the size of the accessory buildings:
F. Maximum Lot Coverage—Twenty-five (25) percent for the principal structure and accessory structures. Accessory Structures shall not exceed twenty (20) percent of the rear lot area or fifty (50) percent of the main building area, whichever is less.
Vindich's .76-acre lot contained 33,105.6 square feet. Therefore, according to the first part of Section 5.4.4 F, the total of all structures on his property could not exceed 8,276.4 square feet (25% of 33,105). Less clear, and more problematic, was the computation of the limits to the size of the accessory buildings found in the second part of this section. The UDO provided no definition for the term "rear lot area." Nor is there any definition in the UDO for "main building area," though Section 2.1.3 does define "buildable area" as "the space remaining on a lot after the minimum open space offset and setback requirements have been complied with; excepting any flood plain wetland or similarly designated unbuildable lands."
¶6. Vindich submitted his building permit application with the plans attached on February 8, 2016. The Building Department denied Vindich's application that same day because of the size of the proposed workshop. Department personnel contended that the "main building area" referred to in Section 5.4.4. F. meant the size of Vindich's house, which was 2,840 square feet. Therefore, the department contended that the limit to accessory structures was 50% of the size of the house, or 1,420 square feet. The department also contended that all accessory structures, added together, could not exceed this 50% of the size-of-the-home limit. The department added up the size of the accessory structures already located on Vindich's property as follows:
| Pool House | 140 |
| Gazebo | 375 |
| Boat House | 614 |
| Total | 1,129 |
The department concluded that according to its interpretation of Section 5.4.4. F, Vindich was limited to 1,420 square feet for all accessory buildings (50% of the 2,840-square-foot residence). It reasoned that because Vindich already had 1,129 square feet of accessory buildings, he could only build a 291-square-foot workshop [50% of the size of the home (1,420 square feet) minus the square footage of the existing accessory buildings (1,120 square feet) equaling 291 square feet]. Vindich disagreed with the department's interpretation of the meaning of "main building area" and its interpretation of the size limitation of accessory buildings (whether the UDO meant them to be aggregated in size or considered individually).
¶7. On February 16, 2016, Vindich appealed the department's denial of his building permit to Gautier's Planning Commission. He submitted a "Public Hearing Application," a form that contained several options of appeals and fees depending on the type of appeal, including "zoning changes," "major development," "variance," and "appeal to staff decision." Vindich checked "appeal to staff decision" as his reason for requesting a public hearing. Under the UDO, the appeal of a staff decision on a building permit does not require notice to neighboring property owners as would the appeal of a request for a variance.
¶8. Vindich attached to his hearing request a hand-written statement summarizing his initial meeting with Ankerson, who Vindich said had given a verbal approval of the project. Vindich also attached a type-written argument with his interpretation of the terms in the UDO and his calculations that showed how his proposed workshop met the criteria of the UDO limits of accessory-structure size. Using the dimensions on the official survey he also had to submit with his application, Vindich showed that the total square footage of his house (2,843.74 square feet) plus the square footage of his current accessory buildings (1,034.6 square feet)3 was 3,878 square feet.
¶9. The second part of Section 5.4.4 F reads, "Accessory Structures shall not exceed twenty (20) percent of the rear lot area or fifty (50) percent of the main building area , whichever is less." (Emphasis added). Vindich noted the ambiguity of the term "main building area," which the UDO did not define. The department felt this term meant the main residence, but it could also mean the "buildable area," which the UDO does define, on Vindich's entire lot.
¶10. Department personnel never calculated the first part of the second sentence of Section 5.4.4 F, i.e., the size of the "rear lot area," which is to be compared to the size of the "main building area." Vindich did. From the survey, he calculated the front yard square footage (3,068.1) and his house square footage (2,843.74) and subtracted each from the square footage of the entire lot (33, 105.6 minus 3,068.1 minus 2,843.74) which results in the "rear lot" square footage of 27,193.76. He then took 20% of that number to get the limit referred to in Section 5.4.4 F (20% x 27,193.76) to get 5,478 square feet as the "rear lot area." according to Section 5.4.4 F, Vindich argued that this figure would then be compared to 50% of the "main building area," and whichever is less becomes the limit of the size of an accessory building.
¶11. Vindich then calculated the "main building area" in two ways, depending on what the term "main building area" meant. If "main building area" meant the overall size of the lot, again referencing the definition of "buildable area," then the 50% referred to in Section 5.4.4 F would be 50% times 33,105.6 square feet, equaling 16,552.8 square feet. But comparing this amount to 20% of the "rear lot area" (5,478 square feet), the "rear lot area" was less. Therefore, Vindich concluded that if "main building area" meant the overall size of the lot, the limit for any new accessory building would be the "rear lot area," or 5,478 square feet. Vindich reasoned that because he already had 3,878 square feet of buildings on his property, Vindich had 1,600 square feet available to build his workshop (5,478 square feet less 3,878 square feet).
¶12. In the alternative, if the phrase "main building area" means the size of the house, 2,843.74 square feet, then 50% of that would limit an accessory structure to 1,421.87 square feet (which is less than the 5,478 square feet that was calculated as the 20% of the "rear lot area"). Vindich contended that his 1,410-square-foot workshop still met the UDO accessory-building-size criteria even if the definition of "main building area" was the size of the house, assuming that the UDO terminology meant the size limit for each accessory building.
¶13. Prior to the Commission's meeting to consider Vindich's appeal, Chandra Nicholson, the Planning and Economic Development Director, submitted the department's rationale in a staff report dated April 1, 2016. It did not deal with the computation of all portions of Section 5.4.4 F but solely the computation of what the department considered was the limit on a total of the accessory buildings, which it contended was 50% of the square footage of the house. Also before the commission meeting, four of the seven commissioners visited the property, and two other commissioners communicated with staff.
¶14. At the Planning Commission's meeting on April 7, 2016, Vindich reviewed his interactions with building department personnel Wes, Cody, and...
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Wheelan v. City of Gautier
...notice of the City's proceedings on Vindich's application. The Court of Appeals affirmed in Wheelan v. City of Gautier , No. 2019-CA-01062 COA, 332 So.3d 863 (Miss. Ct. App. Feb. 23, 2021). The majority held that the City's building permit was not arbitrary, capricious, or without substanti......