70 So. 3d 1114
Miss. Ct. App.2011Background
- Alias and Elam are adjacent homeowners in Oxford, Mississippi, disputing a privacy fence Elam planned to build along his driveway between lots 212, 214, and 213.
- Elam obtained a building permit in April 2007; after initial interpretation of the code, a stop-work order led to a reclassification of the location as a front yard where solid fences over 30 inches are prohibited.
- Elam applied for a variance from the Planning Commission; the Commission granted a five-and-one-half-foot variance in May 2007 with a condition about fence placement.
- Alias appealed to the Lafayette County Circuit Court; the circuit court affirmed the Commission, and Alias appealed again.
- In 2009, this Court in Rankin Group held that the ten-day appeal period runs from the adjournment date of the meeting, affecting timeliness of Alias’s appeal.
- The court ultimately vacated the circuit court judgment and dismissed the appeal for lack of jurisdiction due to untimely filing under section 11-51-75.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the circuit court properly conferred jurisdiction? | Alias argues timeliness can be waived; circuit court timely perfected. | City asserts untimely appeal under 11-51-75; lack of jurisdiction. | No jurisdiction; untimely under 11-51-75, cannot be waived. |
| Can timeliness under 11-51-75 be waived? | Timeliness is waivable; City raised issue late. | Timeliness is mandatory and jurisdictional; cannot be waived. | Timeliness is mandatory and jurisdictional; cannot be waived. |
| What is the correct start of the ten-day period for appeals under 11-51-75? | Argues minutes approval date controls (June 11) as the start. | Rankin Group holds the start is the adjournment date of the meeting. | Start is the adjournment date of the meeting; Rankin Group controlling. |
| Does Rankin Group conflict with prior precedents like South Central Turf or Biloxi v. Cawley? | Believes older cases control finality/appeal timing. | Rankin Group aligns with current statutory interpretation and Cawley’s saving clause. | Rankin Group is reconciled with Cawley; governs timing related to adjournment. |
Key Cases Cited
- Rankin Group, Inc. v. City of Richland, 8 So.3d 259 (Miss. Ct. App.2009) (ten-day appeal period runs from adjournment of meeting)
- Ball v. Mayor and Board of Aldermen of City of Natchez, 983 So.2d 295 (Miss.2008) (ten-day deadline mandatory and jurisdictional)
- Bowen v. DeSoto County Bd. of Supervisors, 852 So.2d 21 (Miss.2003) (ten-day time limit is mandatory and jurisdictional)
- South Central Turf, Inc. v. City of Jackson, 526 So.2d 558 (Miss.1988) (minutes become effective from the meeting; finality relates to adjournment)
- City of Biloxi v. Cawley, 278 So.2d 389 (Miss.1973) (minutes become effective from and after the date of the meeting; final adjournment concept)
- City of Madison v. Shanks, 793 So.2d 576 (Miss.2000) (jurisdictional considerations in municipal appeals)
- Newell v. Jones County, 731 So.2d 580 (Miss.1999) (jurisdictional timing considerations for appeals)
- Garrard v. City of Ocean Springs, 672 So.2d 736 (Miss.1996) (out-of-time appeals and jurisdictional concerns discussed)