                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2012-CA-01283-SCT

BAYMEADOWS, LLC, A MISSISSIPPI LIMITED
LIABILITY COMPANY d/b/a BAYMEADOWS
APARTMENTS

v.

THE CITY OF RIDGELAND, MISSISSIPPI

DATE OF JUDGMENT:                           07/13/2012
TRIAL JUDGE:                                HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED:                  MADISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     J. LAWSON HESTER
ATTORNEYS FOR APPELLEE:                     JERRY L. MILLS
                                            JAMES H. GABRIEL
                                            JOHN P. SCANLON
NATURE OF THE CASE:                         CIVIL - OTHER
DISPOSITION:                                REVERSED AND REMANDED - 02/06/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE DICKINSON, P.J., KITCHENS AND CHANDLER, JJ.

       DICKINSON, PRESIDING JUSTICE, FOR THE COURT:

¶1.    The Board of Aldermen for the City of Ridgeland (“the Board”) denied Baymeadows,

LLC’s proposed repair plans to correct 1,478 cited code violations, and Baymeadows

appealed the Board’s decision. We hold that the Board did not adequately state its rationale

for denying the proposed plans, and we remand for the Board either to issue Baymeadows

a permit or provide an appropriate factual basis for its denial.
                       FACTS AND PROCEDURAL HISTORY

¶2.    Baymeadows, LLC (“Baymeadows”) owns Baymeadows Apartments, a 264-unit

apartment complex located in the City of Ridgeland (“Ridgeland”). Baymeadows purchased

the property from Ridgeland Group, LLC, in 1998 and owned the property until its

foreclosure in August 2013. On June 10, 2010, Ridgeland provided Baymeadows written

notice and an order to correct 1,478 property and maintenance code violations. Baymeadow

appealed the violations to the Board, which stayed any enforcement action until the

disposition of the appeal. On August 24, 2010, after a lengthy hearing, the Board denied

Baymeadows’ appeal, and Baymeadows took no further action.

¶3.    After it failed to correct the violations, on February 2, 2011, Ridgeland commenced

a criminal action against Baymeadows in the Municipal Court of the City of Ridgeland. A

Ridgeland Department of Community Development code enforcement officer swore to 1,478

citations before the municipal court, and each alleged a violation of certain provisions of an

unspecified municipal code. On April 14, 2011, Ridgeland withdrew all 1,478 citations

previously filed, and it filed 1,478 new citations under the correct provisions of the City of

Ridgeland Property and Maintenance Code. Ridgeland then served Baymeadows notice

concerning the new citations.

¶4.    Prior to the adjudication of these violations, on April 21, 2011, the municipal court

accepted Baymeadows into the Pretrial Diversion Program so that it might avoid prosecution

of the code violations. Baymeadows signed a Pretrial Diversion Agreement (“PDA”), which




                                              2
specified that Baymeadows must meet certain minimum requirements before submitting its

repair plans to the Board. In relevant part, the PDA stated:

       Baymeadows, LLC will submit by May 10, 2011, for approval its proposal for
       construction work and repairs to the Baymeadows Apartments to the
       Architectural Review Board, which submission shall include the following
       minimum requirements: (a) Site Plan; (b) Construction Phasing Plan/Safety
       Plan; (c) Erosion Control Plan and SWPPP; (d) Drainage Plan; (e) Landscape
       Plan; (f) Lighting Plan; (g) Architectural Rendering; (h) Interior Remodeling
       Plan; (i) Material and Color Sample Board. Baymeadows, LLC will conduct
       a camera inspection of all sanitary sewer lines on the West portion of the
       Baymeadows Apartments and, on the east portion of the property, only as to
       those sanitary sewer lines servicing Building 16, with a repair plan by June 7,
       2011.

The PDA went on to state that:

       If a definitive and mutually acceptable agreement in all respects is reached
       between the City of Ridgeland and Baymeadows, LLC, with formal approval
       of the Architectural review committee and . . . the Board of Aldermen . . . no
       later than June 15, 2011, Baymeadow shall immediately apply for a valid
       building permit to be issued by the City of Ridgeland promptly thereafter.

¶5.    The PDA also contained a time frame for the completed construction, which stated

that Baymeadows should complete construction in three phases, and it must resolve all

remaining code violations by May 19, 2012. Lastly, the PDA stated that

       if a definitive and mutually acceptable agreement in all respects for the nature,
       details, scope and performance of the specific repairs and construction work
       at Baymeadows Apartments is not reached mutually between the City of
       Ridgeland and Baymeadows . . . not later than June 15, 2011, this Pretrial
       Diversion Agreement . . . shall be automatically deemed void and of no legal
       effect and shall be automatically fully rescinded . . . .




                                              3
¶6.    After entering into the PDA, Baymeadows submitted its repair plans to the

Department of Community Development for review.1 In response, the Ridgeland City

Planner and the Department of Community Development requested fifteen additional items,

which it needed before Baymeadows could submit its plans to the Architectural Review

Board. Baymeadows complied with the request and supplied the additional items.

¶7.    On May 18, 2011, Alan Hart, Director of the Community Development Department

of Ridgeland, notified Baymeadows that the City Planner and Building Official had reviewed

the submissions again and had found them complete; thus Baymeadows did not need to

submit any additional items before making its presentation to the Architectural Review

Board. On May 24, 2011, Baymeadows presented its repair plans to the Architectural Review

Board, which approved the plans by majority vote.

¶8.    Thereafter, the Board placed Baymeadows’ repair plans on its agenda for the June 6,

2011, work session and the June 7, 2011, formal session. Baymeadows appeared at both

meetings and gave presentations concerning the improvements. On June 7, 2011, after

considering the matter in executive session, the Board voted to deny Baymeadows’ proposed

repair plans. In its meeting minutes, the Board explained that it denied Baymeadows’ repair

plans because Baymeadows failed to “provide an adequate safety plan, erosion control plan,




       1
        It should be noted that, according to Ridgeland’s Developmental Review Procedures,
applicants must receive developmental review approval before applying for a permit. Thus,
Baymeadows had not yet applied for a building permit.

                                            4
interior remodeling plan and did not provide the agreed camera inspection and repair plan

for sewer lines.”

¶9.    Baymeadows appealed the Board’s denial to the circuit court, which affirmed the

Board’s decision, finding the decision was (1) supported by substantial evidence; (2) not

arbitrary or capricious nor beyond the power of the City to make, and that it (3) did not

violate any statutory or constitutional right of the appellant. Baymeadows now appeals to this

Court, arguing that the Board improperly applied the terms of the PDA, instead of the

applicable city ordinances, when determining whether Baymeadows’ repair plans qualified

for approval. Further, Baymeadows argues the Board’s denial was not supported by

substantial evidence, was arbitrary and capricious, illegal, beyond the power of the City of

Ridgeland, and that it violated Baymeadows’ Fourteenth Amendment substantive due-

process and equal-protection rights and resulted in a “taking” under the Fifth Amendment.

                                  STANDARD OF REVIEW

¶10.   Under Section 11-51-75, “any person aggrieved by a judgment or decision of the

board of supervisors, or municipal authorities of a city, town, or village may appeal within

ten (10) days . . . in a bill of exceptions to the circuit court . . . .” 2 This Court will not reverse

the decision of the municipality unless its decision is “arbitrary, capricious, discriminatory,




       2
           Miss. Code Ann. § 11-51-75 (Rev. 2012).

                                                  5
or is illegal, or without a substantial evidentiary basis.” 3 “Legal errors are subject to a de

novo review.” 4

                                          ANALYSIS

       The terms of the city ordinances, not the PDA, must govern the Board’s
       decision.

¶11.   Baymeadows asserts that it fully complied with all of the requirements outlined in

Ridgeland’s city ordinances, and the Board improperly based its denial on the inadequacy

of documents required by the PDA but not the ordinances. Baymeadows argues that its

compliance with the PDA is distinct from its ability to obtain Board approval of its repair

plans. On the other hand, Ridgeland asserts that it considered the terms of the PDA when

making its determination because Baymeadow asked the Board to grant a forebearance on

code-violation enforcement–a provision of the PDA–throughout the repair process. Secondly,

at oral argument, Ridgeland argued that, regardless of the PDA, the Board acted within the

authority of the city’s ordinances to deny Baymeadows’ proposed repair plans. As explained

below, we find Ridgeland could require the additional items under its city ordinances.

¶12.   Ridgeland’s Development Review Procedures require development-review approval

prior to the issuance of any building permit.5 The ordinances further provide that, “in

addition to meeting all of the requirements of the Zoning Ordinances, any applicant for a


       3
         Town of Florence v. Sea Lands, Ltd., 759 So. 2d 1221, 1223 (Miss. 2000) (citing Faircloth
v. Lyles, 592 So. 2d 941, 943 (Miss. 1991)).
       4
           ABC Mfg. Corp. v. Doyle, 749 So. 2d 43, 45 (Miss. 1999).
       5
           Ridgeland, Miss., Developmental Review Procedure § 13-S-2 (1991).

                                                6
building permit . . . shall submit the following plans. . . ”: (a) site plan; (b) a conceptual

landscape plan; (c) architectural drawings shall conform to the building codes; (d) signs shall

conform to the ordinances; (e) conceptual grading and drainage plans shall conform to the

ordinances; (f) such other data as may be required by the Building Official or City Engineer.6

¶13.   The PDA requires that Baymeadows submit each of the following to the Board for

review: (a) site plan; (b) construction phasing plan/safety plan; (c) erosion-control plan

and SWPPP; (d) drainage plan; (e) landscape plan; (f) lighting plan; (g) architectural

rendering; (h) interior remodeling plan; (i) material and color-sample board. It also states

that Baymeadows must conduct a camera inspection of all sanitary sewer lines on the west

portion of the property and complete a camera inspection of the sanitary sewer lines servicing

building 16 on the East portion of the property, with a repair plan created by June 7, 2011.

¶14.   Further, both the PDA and the city ordinances require approval from the Architectural

Review Board prior to submitting these items to the Board for approval,7 and Baymeadows

received approval before submitting to the Board. Then, Baymeadows presented its plans

to the Board, and the Board denied them, stating only that Baymeadows “failed to provide

an adequate safety plan, erosion control plan, interior remodeling plan and did not provide

the agreed camera inspection and repair plan of the sewer lines.”




       6
           Id. at § 13-8-3(A)-(F).
       7
           Ridgeland, Miss., Site Plan Review Checklist, ¶¶ 23-24.

                                                 7
¶15.   As a preliminary matter, we agree that Baymeadows’ compliance with the PDA and

its ability to submit repair plans for approval under the city ordinances are two distinct issues.

Ridgeland cannot use a criminal pretrial diversion agreement as a basis to deny

Baymeadows’ right to make repairs to its property. If Baymeadows did not comply with the

terms of the PDA, Ridgeland’s only remedy is to resume prosecution. And if Baymeadows

adequately complied with the city ordinances, then Ridgeland should have approved

Baymeadows’ submissions. Though the PDA expressly incorporated all of the documents

which the Board deemed inadequate, we find Ridgeland also could have required these items

under the ordinances.

¶16.   Ridgeland’s development-review procedures state that applicants must submit certain

plans and drawings to the building official for review prior to applying for a building permit.8

Section 13-8-3(F) of Ridgeland’s development-review procedures provides that the city may

request “such other data as may be required by the Building Official or City Engineer to

ensure that the purposes of this Section are satisfied.” 9 Thus, Ridgeland may

require–consistent with “such other data” in Section 13-8-3(F)– a safety plan, erosion control

plan, interior remodeling plan, camera inspection, and repair plan of the sewer lines.

¶17.   Furthermore, Baymeadows corresponded only with the Department of Community

Development concerning the documents it needed to supply prior to submitting its plans to




       8
           Ridgeland, Miss., Developmental Review Procedure § 13-8-3.
       9
           Id. at § 13-8-3(F).

                                                8
the Architectural Review Board. Specifically, on May 12, 2011, Alan Hart, the Director of

Community Development, wrote to Baymeadows indicating that the Public Works and

Community Development Departments requested that Baymeadows submit fifteen additional

items. The letter listed David Williams, the city engineer, as part of the Public Works

Department, and it listed Chris Ramsey, the building official, as part of the Community

Development Office. After submitting the additional items, Alan Hart further advised

Baymeadows that the city planner and the building official had again reviewed Baymeadows’

submissions and had found them complete. This correspondence indicates that the building

official requested all documents necessary for submission of Baymeadows repair plans, in

accordance with Section 13-8-3(F). Thus, Ridgeland properly requested the documents not

expressly provided for in accordance with Section 13-8-3(F), which allows “such other data

as may be required by the Building Official or City Engineer . . . .” 10

¶18.   The Board, however, claimed that Baymeadows failed to submit a camera inspection

and repair plan of the sewer lines. Though, as stated above, Ridgeland could have required

these items under the ordinances, Ridgeland never requested that Baymeadows include a

camera inspection and sewer-repair plan in its submissions. The building official or city

engineer would have had to request these items specifically, since the ordinances do not

expressly require them–which they did not.11 The city planner confirmed that Baymeadows




       10
            Id.
       11
            Id. at §13-8-3(A)-(F).

                                              9
had submitted a complete repair-plan proposal without either of these items. Thus, the Board

could not base its denial on items it never requested. Though the Board cannot consider the

PDA as a basis for denying Baymeadows’ right to receive approval of its repair plans, we

find that the Board could have required the additional items in accordance with Section 13-8-

3-(F) of Ridgeland’s city ordinances.

        The Board improperly denied Baymeadows’ proposed repair plans.

¶19.    Even if the Board properly considered Baymeadows’ proposal under the ordinances,

and not the PDA, the Board put forth no rationale as to why it deemed Baymeadows’ safety

plan, erosion-control plan, and interior remodeling plan “inadequate.” Instead, in its minutes,

the Board merely made the conclusory statement that Baymeadows “fail[ed] to provide an

adequate safety plan, erosion control plan, [and] interior remodeling plan.”

¶20.    This Court has explained that “the great weight of authority holds it to be a better form

for a fact-finding administrative agency or commission to make a finding of facts on which

to base an award or reject a claim.”12 If the commission fails to make such findings of fact,

“the reviewing court is in the awkward position of trying to ferret out sufficient evidence

from the record to avoid holding that the order of the commission is arbitrary and capricious

or that it is based on substantial evidence.” 13




        12
        Duckworth v. Miss. State Bd. of Pharmacy, 583 So. 2d 200, 202 (Miss. 1991) (citing
Fortune Furniture Mfg. Co. Inc. v. Sullivan, 279 So. 2d 644, 647 (Miss. 1973)).
        13
             Duckworth, 583 So. 2d at 202 (citing Fortune Furniture Mfg. Co. Inc., 279 So. 2d at
647).

                                                10
¶21.      We have applied this concept specifically to determinations made by a board of

supervisors.14 In Harrison v. Mayor and Board of Aldermen of City of Batesville, a board

approved a zoning variance which, under the Batesville Code, required a finding that the

party seeking a variance suffered “practical difficulties or unnecessary hardships. . . .” 15 In

granting the variance, the Board simply stated that the “variance is necessary in order to

avoid practical difficulties or unnecessary hardship. . . ” but it did not “shed any light upon

what practical difficulties or unnecessary hardships existed.” 16 There, we found that the

board “merely provided a conclusion with no finding of fact,” and we determined that

“‘[f]indings of fact which show the actual grounds of a decision are necessary for an

intelligent review of a quasi-judicial or administrative determination.’” 17

¶22.     Similarly, here, the Board merely stated that Baymeadows’ submissions were

“inadequate,” but it did not provide any explanation in its minutes as to what made them

inadequate. We find it impossible to complete an intelligent review of the Board’s

determination without knowing why it deemed the safety plan, erosion-control plan, and

interior remodeling plan inadequate. As such, we cannot determine if the Board’s decision

was supported by substantial evidence, was arbitrary and capricious, illegal, or beyond the



         14
              Harrison v. Mayor and Bd. of Aldermen of City of Batesville, 73 So. 3d 1145 (Miss.
2011).
         15
              Id. at 1153.
         16
              Id.
         17
              Id. (citing Matter of Gilbert v. Stevens, 284 A.D. 1016 (N.Y.A.D. 3 Dept. 1954).

                                                   11
power of the Board. As we did in Harrison,18 we find it necessary to remand this case to the

Board for a hearing to supply the specific findings which supported the Board’s decision.

¶23.   Baymeadows also makes the argument that the Board’s denial violated both

Baymeadows’ Fourteenth Amendment substantive due-process and equal-protection rights

and resulted in a “taking” under the Fifth Amendment. We find it imprudent to decide these

issues prior to reviewing the specific facts underlying the Board’s decision to deny the

proposed repair plans, as these arguments may be affected as well.

       Consideration of damages is premature.

¶24.   At the time of this appeal, Baymeadows expressed concern that it may become

divested of its property before the conclusion of this appeal, rendering this Court unable to

order specific performance. As predicted, in August 2013, Baymeadows lost its apartment

complex in foreclosure proceedings. Baymeadows argues that this Court still may rule on

the bill of exceptions and remand the case for damages under the Mississippi Tort Claims Act

and other civil proceedings. Because we have no determination on the record before us

pertaining to damages, any decision concerning damages would be both advisory and

premature.

                                            CONCLUSION

¶25.   Because the Ridgeland Board of Aldermen provided no factual basis for its decision,

we reverse its denial of Baymeadows’ repair plans, as well as the affirmance of the Madison



       18
            Harrison, 73 So. 3d. at 1156.

                                                12
County Circuit Court and we remand this case to the Board either to issue the permit or

provide an appropriate factual basis for its denial.

¶26.   REVERSED AND REMANDED.

     WALLER, C.J., RANDOLPH, P.J., LAMAR, KITCHENS, CHANDLER,
PIERCE, KING AND COLEMAN, JJ., CONCUR.




                                              13
