Posted by: Patricia Salkin | November 14, 2016

MS Supreme Court Finds Approval of Application for Special Exception for Asphalt Plant was Supported by Substantial Evidence

H&G entered into a lease agreement with APAC-Mississippi, Inc., whereby APAC would operate an asphalt plant and mining operation on H&G’s land for a period of twenty years. H&G then filed an application for a special exception to extract sand and gravel on its property. The application included documentation concerning property, including ownership, government permits, insurance, a bond for reclamation of the property, and site proposals. Opponents of H&G’s application for a special exception appealed the county’s decision to grant the application. The Circuit Court affirmed, and the opponents appealed.

Appellants first contended that the Board’s decision to approve H&G’s application for special exception was unsupported by substantial evidence. The court found, however, that H&G presented materials from a Mississippi Department of Transportation (“MDOT”) traffic count for the previous two years, and according to these materials, 2,900 vehicles travelled near the proposed site on a daily basis. APAC’s figures also indicated that the proposed site would generate between one and two hundred additional vehicles per day: with two hundred being the maximum. Based on these numbers, the proposed site would increase traffic only by seven to eight percent. Additionally, H&G submitted a site plan showing that the proposed site would have an entrance and exit less than one quarter of a mile from Interstate 55, demonstrating that most of the additional traffic produced by the site would be along I-55 and not on Highway 310.

Next, H&G provided testimony from Jerry Brewer, a certified real estate appraiser from Senatobia, Mississippi, who discussed the methods he employed in assessing “the impact on property values as they relate to proximity to gravel type operations” similar to the one proposed by H&G and APAC. H&G also proved evidence of the many commendations APAC had received from the National Asphalt Pavement Association. These commendations were based on the plants’ “appearance, operations, environmental practices, safety permitting and regulatory compliance, and community relations.” In light of all of this evidence, the court found that the Board’s decision to approve H&G’s application was not arbitrary or capricious.

Lastly, the court found that the mere fact that one appellee, APAC, had withdrawn did not retroactively create reversible error by the board of supervisors or the circuit court. Accordingly, the court affirmed the circuit court’s judgment upholding the Board’s decision to grant H&G the special exception.

Como Steak House, Inc. v. Board of Supervisors of Panola County, 2016 WL 4919428 (MS 9/15/16)

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