Posted by: Patricia Salkin | October 25, 2015

MS Appeals Court Upholds Board’s Determination that a Handcrafted-Soap-Making Operation Offering Observation and Classes to Constitutes a “Recreational Amenity” and Upholds Grant of Conditional Use Permit

Henry W. Kinney appealed pro se from an order of the Circuit Court of Harrison County affirming the decision of the Harrison County Board of Supervisors sustaining the Harrison County Planning Commission’s grant of a conditional use permit to Chase Mosely d/b/a Oak Crest Mansion Inn. Appellee, Oak Crest, operated a bed and breakfast on a twelve-acre parcel of land under a 2007 conditional use permit to operate as a rural resort. Oak Crest sought and received the Commission’s approval through a supplemental application in 2010 to add amenities to provide to its customers, including a salon and spa. According to the application, in this additional 2,400 square feet, the Pass Christian Soap Company, a separate entity from Oak Crest, would be permitted to make handcrafted spa, bath, and body products and would allow the guests to observe the handcrafting of the products as an amenity to Oak Crest.

Kinney argued that manufacturing and industrial operations of any type are not permitted or considered conditional uses within District E–1, where Oak Crest is located. The circuit court found that the Commission’s and the Board’s interpretation that a handcrafted-soap-making operation offering observation and classes to the rural resort constituted a “recreational amenity” was reasonable and should be afforded deference. As such, the court found that a reasonable interpretation of the zoning-ordinance definition of “recreational amenities of a rural nature” could include the Soap Company’s presence as described in Oak Crest’s application for its conditional use permit. Kinney also argued that the Board’s grant of the conditional use permit was inappropriate under the zoning ordinance because it was an amendment to an existing conditional use permit, and if the soap making was a recreational amenity, a new conditional use permit would not be necessary. Here, the application for the amended conditional use permit was required, however, because Oak Crest was seeking a 2,400 square foot addition to a building that was not under the prior conditional use permit where the proposed amenity would be provided. Because the court found that the definition of “recreational amenity” was fairly debatable, it affirmed the holding that the Board’s decision was not arbitrary and capricious.

Kinney v Harrison County Board of Supervisors, 172 So. 3d 1266 (MS App. 9/1/2015)

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