Posted by: Patricia Salkin | January 22, 2019

MS Appeals Court Dismisses Appeal Over Denial of Conditional Use Permit as Untimely

This post was authored by Matthew Loeser, Esq.

Standard Construction Company (SCC) applied for a conditional use permit to mine sand and gravel in DeSoto County, Mississippi. After the DeSoto County Board of Adjustments denied SCC’s application, SCC appealed the decision to the DeSoto County Board of Supervisors. When the Board of Supervisors denied SCC’s application, SCC appealed to the DeSoto County Circuit Court, which entered an order and opinion reversing the Board of Supervisors’ decision. The Board of Supervisors filed a motion for rehearing, which the circuit court denied.
In its motion to dismiss, SCC contended that the Board of Supervisors filed its notice of appeal ninety-six days after the circuit court entered its September 29, 2017 order, which would be outside of the thirty-day time frame set forth in Mississippi Rule of Appellate Procedure 4(a). The Board of Supervisors argued that section 11-51-75 stated that the circuit court acts as an appellate court when reviewing an appeal from a board of supervisors; thus, the Mississippi Rules of Appellate Procedure exclusively applied.As such, the Board of Supervisors argued that its motion for rehearing should be construed in the same manner as a Mississippi Rule of Civil Procedure 59 motion.
The court first set forth that Motions to reconsider filed under Mississippi Rule of Civil Procedure 59(a) and Mississippi Rule of Civil Procedure 59(e) must be filed within ten days after the entry of the judgment. Furthermore, it noted this ten-day requirement was absolute, and the court was not permitted to extend this time period. Here, the record reflected that the Board of Supervisors filed its motion for rehearing eleven days after the circuit court entered its judgment, and consequently failed to toll the thirty-day time period for filing a notice of appeal. Since the Board of Supervisors filed its notice of appeal on January 3, 2018, ninety-six days after the circuit court entered its September 29, 2017 order and opinion, the court held that it lacked jurisdiction as the appeal was untimely filed.
Desoto County v Standard Construction Company, 2019 WL 276038 (MS App. 1/22/2019)


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