Posted by: Patricia Salkin | July 9, 2015

MS Appeals Court Questions Ruling Below that Applicant Failed to Exhaust Administrative Remedies by Not Seeking a Rezoning

Michelle Durr filed a lawsuit for injunctive relief and for damages suffered when the City of Picayune allegedly improperly rezoned her commercial property to residential. The building, previously used as a furniture store, sat adjacent to Durr’s other building, on Canal Street, where Durr operated a hair salon. Durr intended to renovate the new building and turn it into a sandwich shop. To continue work on the building, City officials told her she needed to apply for a zoning change from residential to commercial for the property. Rather than attempt to rezone the property, Durr filed a lawsuit under the Mississippi Tort Claims Act (MTCA) in Pearl River County Circuit Court against the City, the mayor, and individual city council members on July 20, 2012. The circuit court granted the City’s motion for summary judgment finding Durr failed to exhaust her administrative remedies. Durr appealed the summary judgment order and asserts the circuit court erred when it failed to grant a default judgment in favor of her.

Durr first argued the circuit court erred when it did not enter a default judgment against the City after the City failed to file a responsive pleading within thirty days of service of process or give good cause for the untimely response. However, rather than argue for a default judgment, Durr’s counsel entered a stipulation with the City’s attorney to dismiss certain defendants and to adjudicate the sufficiency of the tort-claims notice letter. Both of these actions were contrary to a default judgment and indicated Durr’s decision to abandon her motion for a default judgment. Therefore, the court found that there was no doubt that Durr did not ask the court to consider the motion for a default judgment at the January 7 hearing.

Durr next argued that the circuit court erred when it granted the City summary judgment on the basis that Durr failed to exhaust all administrative remedies available to her. Durr contended that any administrative remedies would be futile and unfair because the City unconstitutionally rezoned her property. The court found a genuine issue of material fact existed because while Durr could pursue administrative relief through an application to rezone the property, if the City unconstitutionally rezoned the property as Durr contended, any attempt to rezone the property would be unnecessary, as any unconstitutional rezoning would be void. Accordingly, the court reversed the granting of summary judgment for failure to exhaust administrative remedies.  

Durr v City of Picayune, 2015 WL 3954196 (MS App. 6/30/2015)

The opinion can be accessed at:

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