Posted by: Patricia Salkin | December 15, 2011

MS Supreme Court Reiterates Time to File Appeals Runs from Date of Meeting Where Decision Was Made and Not Date of Approval of the Minutes

Alias and Elam are neighbors. Elam owns lot 213, and Alias owns lot 214. Elam originally presented Alias with building plans for an eight foot tall retaining wall between the two properties but decided to build a privacy fence instead after Alias voiced concerns. Elam obtained a building permit from the City of Oxford (hereinafter City) for the project. The City’s Director of Planning and Development, Tim Akers (hereinafter Akers), originally interpreted the City’s Land Development Code (hereinafter Code) to allow Elam’s fence in a location identified as the “side yard.” However, soon after building had commenced, Akers issued Elam a stop work order. Akers decided the property where Elam had planned to build his fence was actually the “front yard.” As the Code does not allow for solid fences in the “front yard” to exceed thirty inches, Elam applied for a five and one-half foot height variance to the Code for his fence from the City’s Planning Commission (hereinafter commission). Akers recommended the variance be granted. At the May 14 meeting, the commission subsequently did so with certain conditions. The Commission approved the minutes at its June 11 meeting. 

On June 14, Alias filed notice of appeal and a bill of exceptions with the Circuit Court of Lafayette County. The Circuit Court affirmed the commission’s decision. Alias appealed on April 4, 2008. 

On March 17, 2009, this Court issued its decision in Rankin Group v. City of Richland, holding that the ten day period in Mississippi Code Annotated § 11-51-75 for filing a notice of appeal from the decision of municipal authorities runs from the date of the meeting in which the decision was made and not from the date the minutes of the meeting were approved. 

Citing Rankin Group, the City raises for the first time the untimeliness of Alias’s appeal. Alias argues that the issue of a timely appeal has been waived because the City is raising it for the first time before this court. However, the Court states that timeliness of an appeal is jurisdictional, and the court “must always acknowledge its own lack of jurisdiction.” The Court notes that the Mississippi Supreme Court has held that an untimely action should be dismissed as no jurisdiction is conferred on the appellate court if the appeal is not perfected within the statutory time constraints. The Court further notes that § 11-51-75 makes no provision for an out-of-time appeal. While Alias tries to argue that the Court wrongly decided Rankin Group, the Court again holds that the ten day window begins at the meeting where the decision is made and not the meeting where the minutes are approved.  The Court rules that Alias’ appeal fell outside the ten day window, so it was an untimely appeal. Therefore, this court lacks jurisdiction, and the action must be dismissed. 

 Judgment of the Circuit Court of Lafayette County is vacated and this appeal is dismissed for lack of jurisdiction. 

Alias v. City of Oxford, 70 So. 3d 1114, 1116 (Miss. Ct. App. 2010), reh’g denied (May 24, 2011), cert. dismissed, 69 So. 3d 767 (Miss. 5/24/2011) 

The opinion can be accessed at: https://webservices.lexisnexis.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=beeijh&searchTerm=fbbf.hhUb.GaeI.daaN&searchFlag=y&l1loc=FCLOW

 


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