Posted by: Patricia Salkin | May 28, 2019

MS Appeal Court Holds New Statute of Limitations was to be Applied Prospectively Rather than Retroactively for Rezoning

This post was authored by Matthew Loeser, Esq.

In 2014, the Board of aldermen of the City of Byram approved Brett and Joni Huchins’s application to rezone a small parcel of land on Siwell Road. The Hutchinses sought to rezone property located at 4149 Siwell Road from agricultural to neighborhood commercial to allow the construction of a dance studio. Sharon and Herbert Lee and Percy Toaster, who lived near the rezoned parcel, filed a notice of appeal from the Board’s decision, along with a proposed bill of exceptions, which they attached as an exhibit to their notice of appeal. In this case, the Appellants appeal the judgment of the Hinds County Circuit Court, First Judicial District, which dismissed with prejudice their bill of exceptions seeking judicial review of a rezoning decision by the mayor and Board.

On appeal, the Appellants contended the circuit court erroneously dismissed their appeal from the Board’s rezoning decision as untimely. The record reflected that the Appellants filed their notice of appeal and proposed bill of exceptions within section 11-51-75’s ten-day deadline. Although this statutory time was changed in City of Jackson v. Allen, 242 So. 3d 8 (Miss. 2018), the Allen court held that “to restore fairness and sensibility to the bill-of-exceptions process, … going forward, the ten-day deadline contained in the statute applies to the filing of the bill of exceptions with the clerk of the county or municipal board.” Thus, the court determined this holding was not intended to be applied retroactively. As the Appellants filed their notice of appeal and proposed bill of exceptions prior to this new holding, the court found that the circuit court erred by granting the City’s motion to dismiss pursuant to it. The court therefore reversed the circuit court’s dismissal of the appeal as untimely and remanded the case so the circuit court could consider the merits of the arguments raised in the Appellants’ bill of exceptions.

Lee v City of Byram, 2019 WL 2183017 (MS App. 5/21/2019)

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