              IN THE SUPREME COURT OF MISSISSIPPI

                      NO. 2014-SA-01514-SCT

COMO STEAK HOUSE, INC., THE WINDY CITY
GRILLE, LLC, MAY’S COMO RENTAL, LLC,
COMO COURTYARD, LLC, LITTLE RED DOT,
LLC, ORR FAMILY FARM TRUST, MIKE
TAYLOR BARTLETT, MARGUERITE JEMISON
BARTLETT, EARNESTINE BRIDGEFORTH,
DOROTHY KERNEY WILBOURN, VIRGINIA L.
YOUNG, VIRGINIA PORTER GRAVES, MIRIAM
ATKINSON SMITH AND BETTY ORR ATKINSON

v.

BOARD OF SUPERVISORS OF PANOLA
COUNTY, MISSISSIPPI AND H & G LAND
COMPANY, L. P.

DATE OF JUDGMENT:             09/16/2014
TRIAL JUDGE:                  HON. ROBERT P. CHAMBERLIN
TRIAL COURT ATTORNEYS:        JOHN T. LAMAR, JR.
                              DAVID M. SLOCUM, JR.
                              MICHAEL K. GRAVES
                              WILLIAM B. PALMERTREE
                              DARRIN JAY WESTFAUL
COURT FROM WHICH APPEALED:    PANOLA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:     DAVID M. SLOCUM, JR.
                              JOHN T. LAMAR, JR.
ATTORNEYS FOR APPELLEES:      DARRIN JAY WESTFAUL
                              H. SCOT SPRAGINS
                              GOODLOE T. LEWIS
                              LAWRENCE J. TUCKER, JR.
NATURE OF THE CASE:           CIVIL - REAL PROPERTY
DISPOSITION:                  AFFIRMED - 09/15/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

     BEFORE DICKINSON, P.J., COLEMAN AND BEAM, JJ.

     DICKINSON, PRESIDING JUSTICE, FOR THE COURT:
¶1.    H&G Land Company, L.P. (“H&G”), filed an application with the Panola County

Land Development Commission (“the Commission”) for a special exception to Panola

County’s Land Use District Ordinance (“the Ordinance”) to extract sand and gravel on its

property. When the Commission failed to approve the request, H&G appealed to the Panola

County Board of Supervisors (“the Board”), which reversed the Commission. This appeal

followed. We affirm.

                        FACTS AND PROCEDURAL HISTORY

¶2.    In areas zoned “Agricultural,” the Ordinance provides for permitted uses, and uses

permitted by special exception. An owner of agriculturally zoned property may apply for a

special exception permit for the “extraction of . . . gravel . . . provided a reclamation plan is

submitted and approved by the . . . Commission.” According to the Ordinance, the

Commission, or the Board—in considering whether to grant a special exception—

       shall investigate all aspects of the application giving particular regard as to
       whether such a building or use will:
       (a)     [s]ubstantially increase traffic hazards or congestion[,]
       (b)     [s]ubstantially increase fire hazards[,]
       (c)     [a]dversely affect the character of the neighborhood[,]
       (d)     [a]dversely affect the general welfare of the county[,]
       (e)     [o]vertax public utilities or facilities[, and]
       (f)     [b]e in conflict with the goals of [the] Progress Panola General
               Development Plan.

And “any party aggrieved by any final action, decision, ruling, judgment, or order of the . .

. Commission may appeal to the . . . Board . . . within ten calendar days of such decision.”

¶3.    H&G entered into a lease agreement with APAC-Mississippi, Inc. (“APAC”),

whereby APAC would operate an asphalt plant and mining operation on H&G’s land for a


                                               2
period of twenty years. H&G then filed an application for a special exception to extract sand

and gravel on its property. The application included documentation concerning property,

including ownership, government permits, insurance, a bond for reclamation of the property,

and site proposals. Thereafter, the Commission held a series of hearings to consider H&G’s

application. At the last hearing, the Commission denied the application and informed H&G

that it could appeal to the Board.1

¶4.    Two days later, H&G—along with APAC—notified the Commission that it wished

to appeal the “Commission’s failure to approve” its application to the Board. At its next

regularly scheduled meeting, the Board held a hearing to consider H&G’s request. Several

local businesses and residents attended the meeting to oppose H&G’s request, so the Board

permitted each side—the applicant and those opposed—thirty minutes to present their

arguments.

¶5.    Following each side’s presentation, the Board voted to approve H&G’s application.

The Board’s order approving H&G’s special exception stated:

                    ORDER OF THE BOARD OF SUPERVISORS

              On August 12, 2013, there came on for consideration by the Board . .
       ., an appeal filed by H&G . . . and APAC . . . of a decision by the . . .
       Commission rendered July 8, 2013, denying the application for a special
       exception. Presentations were made by Mike Graves, attorney for H&G . . .
       and APAC . . . and David Slocum, attorney for a group citizens from the
       Como, Mississippi area. Testimony was offered by Jerry Brewer concerning
       the effect of mining operations on property values. A copy of the curriculum
       vitae of [] Brewer is incorporated in the record of these proceedings.

       1
        The parties dispute whether the Commission actually “denied” H&G’s application
or simply “failed to approve” it. For purposes of this appeal, we believe it to be irrelevant.
However, the Commission’s minutes do state that the application was “denied.”

                                              3
       Testimony was also offered by Earnestine Bridgforth of Cistern Hill M.B.
       Church, James May, Tim Rakestraw of APAC . . . Nolan West of H&G . . .
       and other individuals attended the meeting.

              H&G . . . and APAC . . . presented a notebook with 29 tabbed entries,
       which is incorporated into the record of these proceedings. The Concerned
       Citizens of Como, Mississippi, also presented a booklet with correspondence
       and petition with affidavits, which is incorporated into the record of these
       proceedings.

               After discussion, Supervisor Flint made a motion to approve the
       application for special exception for twenty (20) years with hours of operation
       from 6:00 A.M. to 6:00 P.M., Monday through Saturday, and that the
       application was to conform to the site plan submitted by the applicants.
       Supervisor Thomas seconded the motion and a roll call vote was held.
       Supervisors Flint, Thomas, and Morris voted in favor of the motion.
       Supervisor Birge voted against the motion. Supervisor Avant was absent due
       to illness.

               IT IS THEREFORE ORDERED by the Board . . . that the decision of
       the [] Commission dated July 8, 2013, denying the application of H&G . . . for
       a special exception in an agricultural district for a gravel mine, hot mix asphalt
       plant, concrete plant, crusher and sand and gravel washer located [at]16535
       Highway 310, Como, Mississippi, is hereby overruled a special exception is
       granted to H&G . . . and APAC . . . for a twenty (20) year period with hours
       of operation to be limited from 6:00 A.M. until 6:00 P.M. on Mondays through
       Saturdays of each week. The operation and development shall conform to the
       site plans submitted by the applicants. A certified copy of this Order shall be
       forwarded to Michael Graves . . . .

¶6.    Thereafter, in the Circuit Court for the First Judicial District of Panola County,

Mississippi, the Appellants2 filed a Notice of Appeal, stating that they were appealing the

Board’s approval of H&G’s special-exception application. The Board properly verified the

Bill of Exceptions as selected by the Appellants, and the appellate record was designated.




       2
        For the purposes of brevity, we refer collectively to all parties who appealed the
Board’s decision approving H&G’s application simply as “Appellants.”

                                               4
H&G and APAC then filed a motion to intervene, which was granted by an Agreed Order

Allowing Intervention.

¶7.    In their brief, Appellants argued that the Board’s decision was both unsupported by

substantial evidence and arbitrary or capricious. The Board responded to the contrary. H&G

and APAC filed a brief asserting that Appellants lacked standing to appeal the Board’s

decision, and that—because the appeal was not timely filed—the circuit court lacked

jurisdiction.

¶8.    The circuit court affirmed the Board’s decision. H&G and APAC filed a Motion to

Reconsider, and the court entered an order Granting in Part and Denying in Part—in which

it granted on the standing issue but once again rejected the argument about timeliness of the

appeal. Within its order, the court scheduled a hearing for the parties to present evidence and

arguments on the question of standing.

¶9.    Following a lengthy hearing, the court entered a Final Order on Standing/Merits,

finding that Appellants had standing to appeal the Board’s decision, and also concluding

once again that the Board’s decision was supported by substantial evidence, was not arbitrary

or capricious, and consequently must be affirmed.

¶10.   Appellants timely appealed to this Court. H&G and APAC cross-appealed, raising

yet again the issues of timeliness and standing.3 APAC then filed with this Court a Motion

to Dismiss Cross-Appeal and Withdraw from Direct Appeal. Although neither the Board nor

Appellants opposed APAC’s withdrawal, H&G responded and contended that APAC was

       3
         H&G appears to have abandoned these arguments as it completely failed to address
either issue in its brief to this Court. Therefore, we do not consider their cross-appeal.

                                              5
a necessary and indispensable party. A panel of this Court—composed of Waller, C.J.,

Kitchens and Pierce, JJ.—granted APAC’s motion to withdraw and struck H&G’s response

as untimely. Now before us, Appellants raise the following three issues:

       I.       Whether the Board’s decision to approve H&G’s application for
                special exception was supported by substantial evidence;

       II.      Whether the Board’s decision to approve H&G’s application for
                special exception was arbitrary or capricious; and

       III.     Whether APAC is a necessary and indispensable party whose
                withdrawal renders the appeal moot requiring reversal of the
                Board’s decision.

                                 STANDARD OF REVIEW

¶11.   This Court has held that a board’s decision regarding an application for a “special

exception” is an adjudicative rather than legislative act;4 and when reviewing such acts, we

employ the same standard of review we utilize in appeals from administrative agencies.5

Accordingly, we will not disturb the Board’s decision to approve H&G’s application for

special exception unless we find that the Board’s decision was 1) unsupported by substantial

evidence, 2) arbitrary or capricious, 3) beyond the Board’s scope or powers, or 4) in violation

of a party’s constitutional or statutory rights.6




       4
           Barnes v. Bd. of Supervisors, DeSoto Cty., 553 So. 2d 508, 510 (Miss. 1989).
       5
        Falco Lime, Inc. v. Mayor & Alderman of City of Vicksburg, 836 So. 2d 711, 721
(Miss. 2002).
       6
        Wilkinson Cty Bd. of Supervisors v. Quality Farms, Inc., 767 So. 2d 1007, 1010
(Miss. 2000).

                                                6
¶12.   It is true that the initial burden rested upon H&G to “prove by a preponderance of the

evidence that [it] [had] met the elements/factors essential to obtaining the [special exception]

permit.”7 But once the Board made its decision, “a rebuttable presumption exists in favor of

the action of [the Board], and the burden of proof is on the party challenging [the Board’s

decision].”8

¶13.   We “may neither substitute [our] own judgment for that of the [Board] which rendered

the decision nor reweigh the facts of the case,”9 for, it is “not the function of [this Court] to

determine whether the action of the [Board] is right or wrong, correct or incorrect, wise or

unwise, advisable or best fitted to the situation involved.”10 Further, the bill of exceptions

“serves as the record on appeal,” and an appellate court “can only consider the case as made

by the bill of exceptions.”11

                                        DISCUSSION

       I.        Whether the Board’s decision to approve H&G’s application for
                 special exception was supported by substantial evidence.




       7
        Wilkinson Cty. Bd. of Supervisors, 767 So. 2d at 1010 (quoting Barnes, 553 So.
2d at 511).
       8
           Pub. Emps. Ret. Sys. v. Marquez, 774 So. 2d 421, 425 (Miss. 2000).
       9
           Id.
       10
            Falco Lime, Inc., 836 So. 2d at 722.
       11
         Lowndes Cty. ex rel. Bd. of Supervisors v. McClanahan, 161 So. 3d 1052, 1056
(Miss. 2015) (quoting Hooks v. George Cty., 748 So. 2d 678, 680 (Miss. 1999)).

                                               7
¶14.   Appellants first contend that the Board’s decision to approve H&G’s application for

special exception was unsupported by substantial evidence. For reasons discussed below,

we disagree.

¶15.   This Court defines “substantial evidence” as “such relevant evidence as reasonable

minds might accept as adequate to support a conclusion.”12 We have further described

“substantial evidence” as “more than a mere scintilla of evidence,” or “something less than

a preponderance of the evidence but more than a scintilla or glimmer.”13

¶16.   As already mentioned, when determining whether to approve or deny an application

for special exception, the Ordinance requires the Board to carefully consider six factors. We

will now identify and discuss each factor and any evidence presented to the Board relevant

to that particular factor.

       A.       Traffic Hazards or Congestion

¶17.   The Ordinance required the Board first to contemplate whether the proposed site

would substantially increase traffic hazards or congestion. In support of its request, H&G

presented materials from a Mississippi Department of Transportation (“MDOT”) traffic

count for the previous two years—2011 and 2012. According to these materials, 2,900

vehicles traveled near the proposed site on a daily basis. APAC’s figures indicated that the

proposed site would generate between one and two hundred additional vehicles per




       12
         Hooks, 748 So. 2d at 680 (quoting Johnson v. Ferguson, 435 So. 2d 1191, 1195
(Miss. 1983)).
       13
            Miss. Dep’t of Envtl. Quality v. Weems, 653 So. 2d 266, 280–81 (Miss. 1995).

                                             8
day—with two hundred being the absolute maximum. Based on these numbers, the proposed

site would increase traffic only by seven to eight percent.

¶18.   Also, H&G submitted a site plan showing that the proposed site would have an

entrance and exit less than one quarter of a mile from Interstate 55 (“I-55”)—demonstrating

that most of the additional traffic produced by the site would be along I-55 and not on

Highway 310. H&G further showed it already had coordinated with MDOT regarding

necessary traffic controls and that MDOT had given H&G instructions on how it was to

construct the proposed site’s 175 foot entrance/exit.

¶19.   And, finally, when concerns were raised about the increased traffic’s effect on a

nearby church, H&G insisted that it had “made clear that it was willing to cooperate with the

church when they had special events going on,” and that “APAC repeatedly requested to

meet with church leaders to discuss,” but the church “repeatedly declined” to do so.

¶20.   Additionally, Dwayne Boyd, a representative for APAC, responded to concerns raised

about which roads these additional trucks would use. Boyd maintained that, although

seventy-five percent of the trucks would be outside haulers, and APAC actually owned only

twenty-five percent of the trucks that would be used, APAC would still control what

routes—i.e., roads—these outside haulers would take.

       B.     Fire Hazards

¶21.   The next factor the board examined was whether the proposed site would substantially

increase fire hazards. We first note that this factor was not in dispute at the hearing. Even

so, H&G did present evidence relevant to the issue.



                                             9
¶22.   First, H&G presented evidence that no explosion had ever occurred at any of APAC’s

twelve Mississippi plants. Additionally, in the past fifteen years of APAC’s operations, only

two fires had occurred, and both were “extinguished and handled internally by APAC.”

Further, the proposed site would have a 2,000 gallon water truck and a freshwater pond to

combat a fire, were one to occur. Finally, if needed, emergency assistance easily could

access the site because of its close proximity to I-55.

       C.     Character of the Neighborhood

¶23.   The Board then considered the third factor—whether the proposed site would

adversely affect the character of the neighborhood. H&G provided the Board with a map of

the land surrounding the proposed site showing the area as “predominantly rural [and]

sparsely populated.” The only properties located adjacent to the proposed site were owned

by Nolan West—the President of H&G—and Cal Wilkins. H&G presented the Board with

a letter from Wilkins evidencing that “he believ[ed] that [the mining operation] would be a

good project to have in Panola County.” H&G also pointed out that there were only a few

houses within a one-mile radius of the site and that all of those houses were located on the

other side of—or across—I-55.

¶24.   With respect to noise, H&G presented evidence that, as to the residences located

across I-55, there would be a twelve-foot berm with vegetation along the top, a thirty-foot

tree buffer, and an elevated road bed on I-55. According to H&G, such precautions would

prevent those particular residents from hearing any noise from the plant. As it related to any

homes located nearer the proposed site on the same side of I-55—there were few, if any, as



                                             10
most of the land adjacent to the proposed site was vacant—there would be another twelve-

foot berm with vegetation and an already-existing, 300-foot tree buffer. Finally, the

machinery used at the proposed site was to be equipped with “white noise.”

¶25.   H&G next presented evidence that the proposed site would “be almost completely

obscured from sight.” The twelve-foot berms with vegetation and tree buffers would fully

cover the site “except for the very tip top of the processing plants”—such that only about

seven feet of the plant would be visible. Additionally, APAC planned to landscape, fence

and pave the site’s entry/exit. H&G also addressed concerns raised about the site generating

dust and asserted that the site was not expected to produce a significant amount of dust, and

that any dust that was produced easily could be taken care of by the on-site water truck.

¶26.   Finally, with respect to this factor, H&G addressed the site’s possible impact on

nearby property values. To properly tackle the issue, H&G elicited testimony from Jerry

Brewer—a certified real estate appraiser from Senatobia, Mississippi—who first detailed his

qualifications and then briefly discussed the methods he employed in assessing “the impact

on property values as they relate to proximity to gravel type operations” similar to the one

proposed by H&G and APAC. Brewer stated that, based on the investigation he had

conducted, “there is no impact on property values as relates to a proximity to a pit.” Brewer

further asserted that “there is also no inhibition in the development of land residentially.”

       D.     General Welfare of the County

¶27.   The fourth factor evaluated by the Board was whether the proposed site would

adversely affect the general welfare of the county. H&G first pointed out that, initially, the



                                             11
proposed operation would create between fifteen and twenty full-time jobs. Additionally,

H&G predicted the plant would increase tax revenues for the county, and H&G expected the

town of Como to receive additional revenue from APAC’s use of natural gas—pursuant to

an agreement entered into between the town of Como and Mississippi Natural, Inc.

¶28.   H&G also presented to the Board a letter from MMC Materials—a concrete supplier

in the area. In the letter, MMC expressed its desire that the special exception be granted to

address “the need for aggregates in Northwest Mississippi.” H&G then asserted that APAC

“has proven to be a good corporate citizen wherever it has been,” and provided the Board

with two letters from Mississippi churches thanking APAC for its contributions.

¶29.   Finally, H&G highlighted many commendations APAC had received from

NAPA—the National Asphalt Pavement Association.                In particular, APAC received

Diamond Achievement Commendations for Excellence in Asphalt Plant/Site Operations for

all of its Mississippi plants. These commendations were based on the plants’ “appearance,

operations, environmental practices, safety permitting and regulatory compliance, and

community relations.”

       E.      Public Utilities and Facilities

¶30.   H&G then discussed the fifth factor—whether the proposed site would overtax public

utilities or facilities. It first pointed out that no county roads would be used by those involved

in the proposed operation so that the County would not be “spending any money to maintain

roads . . . for the operation of this pit.” H&G also submitted two letters from utilities

providers for the County—Mississippi Natural and Entergy. Both companies confirmed that



                                                 12
they would be capable of providing services to the proposed facility without affecting service

to existing customers in the area. And APAC had obtained a permit from the Mississippi

Department of Environmental Quality allowing APAC to “divert or withdraw for beneficial

use the public waters.”

       F.     Progress Panola General Development Plan

¶31.   The sixth and final factor addressed was whether the proposed site would be in

conflict with the goals of the Progress Panola General Development Plan. Because the

purpose of Progress Panola is to promote development within the county, H&G insisted the

proposed site would help advance the plan by creating additional jobs and increasing tax and

other revenues for the County and the town of Como. H&G once again referenced the letter

from MMC Materials demonstrating that the site would help fulfill an expressed need for

additional sources of aggregate in the area.

¶32.   Based on the foregoing discussion, we are persuaded that substantial evidence clearly

supported the Board’s decision such that “reasonable minds might accept as adequate to

support a conclusion.”

¶33.   Appellants’ argument—that substantial evidence supported a denial of H&G’s

application—simply is not the question before us. Appellants also repeatedly point to the

Commission’s failure to approve or deny H&G’s application as evidence that the Board

erred. But the Commission’s decision is not at issue here. Our focus is on whether the

Board’s decision to grant H&G’s application for a special exception was supported by

substantial evidence. And based on discussion above, we find it was.



                                               13
¶34.   Appellants also briefly contend that the Board’s decision should be reversed because,

they allege, the Board’s order “lacked any findings of fact.” We find no merit in this

argument. It is true that “findings of fact which show the actual grounds of a decision are

necessary for an intelligent review of a quasi-judicial or administrative decision.”14 And this

Court previously has held that Boards should make findings of fact when granting or denying

conditional use, or special exception, permits.15

¶35.    However, we also have held that “granting the [special exception] permit and

imposing conditions upon the granting of the permit, is tantamount to a finding of fact . . .

that the six questions were answered and found in favor of the applicants.”16 We believe that

the instant case is no different. The Board granted the application and imposed several

conditions—(1) restricting its term to twenty years, (2) operating only six days a week, (3)

from 6:00 a.m. to 6:00 p.m. Additionally, the Board required that the operation “conform

to the site plan submitted by the applicants.”

¶36.   But, even without the conditions imposed above, the Board’s decision contained

sufficient findings of fact. In its Order, the Board specifically named the individuals who

attended and spoke at the hearing. It further incorporated the “notebook with twenty-nine

tabbed entries” submitted by H&G and the “booklet with correspondence and petition with

affidavits” prepared by Appellants. Accordingly, we find that the order sufficiently showed


       14
         Harrison v. Mayor & Bd. of Alderman of City of Batesville, 73 So. 3d 1145, 1153
(Miss. 2011).
       15
            Id. (citing Barnes, 553 So. 2d at 511).
       16
            Barnes, 553 So. 2d at 511.

                                               14
the Board’s grounds for its decision such that its decision could be subject to intelligent

review.

       II.        Whether the Board’s decision to approve H&G’s application for
                  special exception was arbitrary or capricious.

¶37.   Appellants next argue that the Board’s decision to approve H&G’s application was

arbitrary and capricious. For the same reasons as discussed above, we disagree.

¶38.   We have “held that a ‘holding which is supported by substantial evidence cannot be

arbitrary and capricious.’”17 An act is “arbitrary” if it “is not done according to reason or

judgment, but depending on the will alone.”18 An act is “capricious” when “done without

reason, in a whimsical manner, implying either a lack of understanding or disregard for the

surrounding facts and settled controlling principles.”19

¶39.   And, finally, this Court has held that it will not disturb a governing board’s decision

“which appears to be fairly debatable.”20 “‘Fairly debatable’ is the antithesis of arbitrary and

capricious. If a decision is one which could be considered ‘fairly debatable,’ then it could

not be considered arbitrary or capricious.”21




       17
        Falcon Lime, Inc., 836 So. 2d at 721 (quoting Miss. Bureau of Narcotics v. Stacy,
817 So. 2d 523, 526 (Miss. 2002)).
       18
         Thomas v. Bd. of Supervisors of Panola Cty., 45 So. 3d 1173, 1181 ( Miss. 2010)
(quoting Gentry v. City of Baldwyn, 821 So. 2d 870, 873 (Miss. Ct. App. 2002)).
       19
            Id.
       20
            City of Madison v. Shanks, 793 So. 2d 576, 578 (Miss. 2000).
       21
            Id. (quoting Saunders v. City of Jackson, 511 So. 2d 902, 906 (Miss. 1987)).

                                                15
¶40.   We find it unnecessary to recount the multitude of evidence submitted to the Board,

but based on the discussion above, we find Appellants’ argument to be without merit. The

Board’s decision clearly was supported by substantial evidence, and as a result “cannot be

arbitrary and capricious.”22 Moreover, because the decision was supported by substantial

evidence, the Board’s decision was, at the very least, “fairly debatable.”23 Accordingly, the

Board’s decision was not arbitrary or capricious, nor was it unsupported by substantial

evidence, and, consequently, we are bound to affirm.

       III.     Whether APAC is a necessary and indispensable party whose
                withdrawal renders the appeal moot requiring reversal of the
                Board’s decision.

¶41.   Finally, Appellants argue that APAC is a necessary and indispensable party to this

appeal whose withdrawal renders the appeal moot, requiring reversal of the Board’s decision.

We must reject this argument.

¶42.   The Appellants did not oppose APAC’s motion to withdraw from this appeal. Had

the Appellants been aware of some reason APAC’s motion should have been denied, the time

to assert such reason was then.

¶43.   Moreover, APAC has disclaimed any interest it once had. In its motion to withdraw,

APAC declared it “no longer wishes to continue,” that it “no longer wishes to spend its time

and resources pursuing the appeal,” and that “the property itself is no longer as desirable as

it was two years ago.” APAC further proclaimed that “if H&G wishes to continue with this



       22
            Falcon Lime, Inc., 836 So. 2d at 721.
       23
            Shanks, 793 So. 2d at 578.

                                             16
appeal and possibly use the property . . . for purposes which the special exception approved,

it can do so at its own expense, and APAC has no objection.”

¶44.   APAC’s withdrawal and unequivocal declaration that it will no longer pursue the

mining operation demonstrates—by itself—that, if APAC were ever an interested party, it

holds that status no longer. And, the mere fact that one appellee has withdrawn does not

retroactively create reversible error by the board of supervisors or the circuit court.

                                      CONCLUSION

¶45.   The Board’s decision to grant H&G’s application for special exception was supported

by substantial evidence and was not arbitrary or capricious. We also find no merit to

Appellants’ argument that APAC is a necessary and indispensable party to this appeal.

Accordingly, we affirm the circuit court’s judgment affirming the Board’s decision granting

H&G the special exception.

¶46.   AFFIRMED.

   WALLER, C.J., RANDOLPH, P.J., KITCHENS, KING, COLEMAN,
MAXWELL AND BEAM, JJ., CONCUR. LAMAR, J., NOT PARTICIPATING.




                                              17
