        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2017-CA-00891-COA

RANDOLPH J. TRAPPEY AND FRANCES M.                                        APPELLANTS
TRAPPEY

v.

ROSA NEWMAN                                                                   APPELLEE

DATE OF JUDGMENT:                          06/01/2017
TRIAL JUDGE:                               HON. LILLIE BLACKMON SANDERS
COURT FROM WHICH APPEALED:                 ADAMS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:                   LUCIEN C. GWIN JR.
ATTORNEY FOR APPELLEE:                     EARNESTINE ALEXANDER
NATURE OF THE CASE:                        CIVIL - REAL PROPERTY
DISPOSITION:                               AFFIRMED: 01/08/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, C.J., BARNES AND CARLTON, P.JJ.

       GRIFFIS, C.J., FOR THE COURT:

¶1.    Randolph and Frances Trappey appeal the City of Natchez’s decision to grant Rosa

Newman’s application for a special exception to the Natchez Development Code to resume

operation of previous commercial property in a residential area. We find no error and affirm.

                                          FACTS

¶2.    Until 2013, the property located at 722 North Rankin Street in Natchez operated as

an assisted-living facility. In 2016, Rosa Newman wanted to reinstate the commercial use

of the property and applied for a special exception to the City of Natchez Development Code

(the “Code”). In accordance with section 7.2.1 of the Code, the Planning Commission held

a hearing on May 19, 2016. Randolph Trappey objected to the special exception. The matter
was deferred until the next meeting.

¶3.    On September 22, 2016, the Planning Commission met in a study session to discuss

the seven factors necessary to justify a grant of the special exception, under section 7.3.2:

       (a) that the proposed use or development of the land will not materially
       endanger the public health or safety;

       (b) that the proposed use is reasonably necessary for the public health or
       general welfare, such as by enhancing the successful operation of the
       surrounding area in its basic community functions or by providing an essential
       services to the community or region;

       (c) that the proposed use or development of the land will not substantially
       injure the value of adjoining or abutting property;

       (d) that the proposed use or development of the land will be in harmony with
       the scale, bulk, coverage, density, and character of the area or neighborhood
       in which it is located;

       (e) that the proposed use or development of the land will generally conform to
       the Comprehensive Plan and other official plans adopted by the City of
       Natchez;

       (f) that the proposed use is appropriately located with respect to transportation
       facilities, water supply, fire and police protection, waste disposal and similar
       facilities; and

       (g) that the proposed use will not cause undue traffic congestion or create a
       traffic hazard.

¶4.    On September 29, 2016, the Planning Commission met and approved the special

exception with conditions. Four members voted for it, and three members voted against it.

¶5.    The Trappeys appealed the decision to the Mayor and Board of Alderman. The

decision was affirmed.

¶6.    The Trappeys then appealed to the circuit court. At a hearing on May 24, 2017, the



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Trappeys argued several issues that the circuit court did not address, including the allegation

that a super-majority vote of the Commission was necessary because more than twenty

percent of the neighbors objected to the special exception. Newman’s counsel argued that

there were only three objection letters. The record indicated that the Planning Commission

only recognized three properly filed objection letters. The Trappeys also argued that the

application was defective because Newman failed to obtain the approval of the Natchez Site

Plan Review Committee and could not pass the seven-point criteria of section 7.3.2 of the

Code. The circuit court affirmed the decision.

                                       DISCUSSION

¶7.    The Trappeys argue that the approval of the application for the special exception lacks

evidentiary support and is without merit. Specifically, the Trappeys contend that there are

several missing pieces of the application, including: (1) a site review committee approval;

(2) clear and convincing evidence of compliance with the seven criteria set forth in 7.3.2 of

the Code; (3) compliance with the Natchez Preservation Ordinance; and (4) super-majority

approval by the Planning Commission. The Trappeys also allege that the approval is

impermissible spot zoning and that Newman failed to meet her burden of proof.

¶8.    To reverse the decision of the circuit court, this Court reviews whether or not the

decision of the Planning Commission was arbitrary or capricious and if it was supported by

substantial evidence. Como Steak House Inc. v. Bd. of Supervisors, 200 So. 3d 417, 421

(¶11) (Miss. 2016). Evidence is substantial when “reasonable minds might accept [it] as

adequate to support a conclusion.” Id. at 422 (¶15) (quoting Hooks v. George County, 748



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So. 2d 678, 680 (¶10) (Miss. 1999)). Because the Trappeys argue error existed in the

Board’s actions, the burden of proof requires it to show error. Childs v. Hancock Cty. Bd.

of Supervisors, 1 So. 3d 855, 859 (¶12) (Miss. 2009). If the issue is merely debatable,

however, this Court will not overturn the decision of the Board. Id.

¶9.    The Trappeys argue that the decision of the Planning Commission is invalid because

it did not consider the factors required by section 7.3.2 of the Code. The Trappeys contend

that an absence of these factors on the record is evidence that the Commission did not

consider them. The minutes of the Planning Commission, however, note a discussion of

these factors in a study session. It was only after this discussion that the Commission

approved the application with attached conditions. This Court finds that there is sufficient

evidence in the record to support the Commission’s finding because it did consider the

required factors under section 7.3.2.

¶10.   Next, the Trappeys argue that the Planning Commission’s vote was invalid because

it was not based on a super majority. The Trappeys specifically state that the vote required

five votes in favor instead of four. To support their claim, the Trappeys cite Mississippi

Code Annotated section 17-1-17 (Rev. 2012), which states in relevant part:

       In case of a protest against such change signed by the owners of twenty percent
       or more, either of the area of the lots included in such proposed change, or of
       those immediately adjacent to the rear thereof, extending one hundred sixty
       feet therefrom or of those directly opposite thereto, extending one hundred
       sixty feet from the street frontage of such opposite lots, such amendment shall
       not become effective except by the favorable vote of three-fifths of the
       members of the legislative body of such municipality or county who are not
       required by law or ethical considerations to recuse themselves.

¶11.   The Trappeys claim that six different neighbors filed objections to the special

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exception. If six objections were properly filed, the vote for approval would have required

a super majority. Miss. Code Ann. § 17-1-17 (Rev. 2012). Only three objections were filed

on the date of the initial September 22, 2016 hearing. The only applicable objections were

from Walter Roddy (filed May 18, 2016, and September 12, 2016), Arthur and Edna Reed

(filed September 2, 2016), and Virginia Conn (filed September 20, 2016). As noted, Walter

Roddy filed two separate objections. Mr. Roddy cannot force a super-majority vote by filing

two objections for the same property. Also, the Trappeys claim an objection was filed by

Paul Green.     But Green’s property is outside of the one-hundred-sixty-foot-radius

requirement, which voided his objection.

¶12.   The supreme court has held that a showing of twenty percent “must be made before

the local governing body and cannot be raised for the first time upon appeal.” City of Biloxi

v. M.C. Hilbert, 597 So. 2d 1276, 1280 (Miss. 1992) (citing Tindall v. City of Louisville, 338

So. 2d 998, 999 (Miss. 1976); Bd. of Supervisors v. Abide Bros. Inc., 231 So. 2d 483, 485

(Miss. 1970)). In City of Biloxi, the court considered a similar issue where one party asserted

error in a rezoning case because a super-majority vote was not used in approval. The

supreme court, however, found that nothing indicated the protestors timely objected to the

rezoning. Id. at 1280. Here, the record does not indicate that enough citizens within the one-

hundred-sixty-foot radius raised timely objections to the special exception to require a super-

majority vote under Mississippi Code Annotated section 17-1-17.

¶13.   Finally, the Trappeys argue that the approval of the application is synonymous with

spot zoning. Spot zoning is “where a zoning ordinance is amended reclassifying one or more



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tracts or lots for a use prohibited by the original zoning ordinance and out of harmony

therewith.” Thomas v. Bd. of Supervisors, 45 So. 3d 1173, 1187 (¶44) (Miss. 2010) (quoting

McKibben v. City of Jackson, 193 So. 2d 741, 744 (Miss. 1967)). The supreme court has

overturned zoning ordinances and special exception approvals on the basis of spot zoning.

Id. In Thomas, the supreme court affirmed the Board’s decision for rezoning and found no

evidence of spot zoning. The court ruled:

       The Board’s decision was considered to be “fairly debatable,” and this Court
       will not disturb it on appeal. While Thomas’s argument has a degree of merit,
       and the rezoning may provide Aldridge a benefit, as a rezoning logically
       always does to one party or another, the Board nevertheless found a public
       need for rezoning and, on that basis, the decision cannot be considered spot
       zoning.

Id. Here, as in Thomas, we do not find that the evidence supports the claim that Newman

was specifically favored over the Trappeys. The property previously was an assisted-living

facility in the middle of a residential neighborhood. The grant of the special exception does

not constitute impermissible spot zoning. We find that this issue is without merit.

¶14.   The ultimate decision for this Court is whether or not the original decision of the

Planning Commission was arbitrary or capricious. Our review of the record and the

applicable case law direct us to the answer that the decision was neither arbitrary nor

capricious. The supreme court has opined that “[w]here . . . there is substantial evidence

supporting both sides of a rezoning application, it is hard to see how the ultimate decision

could be anything but ‘fairly debatable,’ not ‘arbitrary and capricious,’ and therefore beyond

our authority to overturn.” Id. at 1181 (¶23) (quoting Sauders v. City of Jackson, 511 So. 2d

902, 907 (Miss. 1987)).

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¶15.   The record shows that there are “fairly debatable” issues for each side. The property

once served as an assisted-living facility and was located in the middle of the same

established neighborhood at the time. There were concerns by some of the Planning

Commission members that the parking would interfere with the streets or that the value of

the surrounding properties would decrease, but the community could benefit from Newman

assisting veterans in her facility. The issues surrounding this matter are obviously fairly

debatable in nature, and deference is drastically tilted toward the original decision without

a finding that it was arbitrary or capricious.

¶16.   AFFIRMED.

      BARNES AND CARLTON, P.JJ., GREENLEE, WESTBROOKS AND
TINDELL, JJ., CONCUR. WILSON, J., CONCURS IN RESULT ONLY WITHOUT
SEPARATE WRITTEN OPINION. McDONALD, LAWRENCE AND McCARTY,
JJ., NOT PARTICIPATING.




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