MS Appeals Court Finds Appellants Timely Appealed the Board’s Rezoning Decision

This post was authored by Matthew Loeser, Esq.

In 2014, the Board approved Brett and Joni Huchins’s application to rezone a small parcel of land on Siwell Road from agricultural to neighborhood commercial to allow the construction of a dance studio. Appellants, who live near the rezoned parcel, filed a notice of appeal from the Board’s decision, and prepared a proposed bill of exceptions, which they attached as an exhibit to their notice of appeal. The circuit court found the Appellants failed to timely file their bill of exceptions and dismissed, with prejudice, both the Appellants’ notice of appeal and their bill of exceptions.

On appeal, the Appellants contended the circuit court erroneously dismissed as untimely their appeal from the Board’s rezoning decision. As relevant to this case, at the time the Appellants filed their notice of appeal and proposed bill of exceptions with the city clerk, the Mississippi Supreme Court had not yet decided City of Jackson v. Allen, 242 So.3d 8 (Miss. 2018), which overruled Bowen v. DeSoto County Board of Supervisors, 852 So.2d 21 (Miss. 2003). The supreme court’s holding in Bowen remained good caselaw until 2018, when the supreme court explicitly stated in Allen that it overruled Bowen’s holding “that the bill of exceptions is nothing more than an optional vehicle for transmitting the record to the circuit court and that some other filing, such as a notice of appeal, can suffice to confer jurisdiction there.” In setting forth the proper procedure for bill-of-exceptions-practice and overruling Bowen, the Allen court explained 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.” (emphasis added). As such, Bowen was the controlling law of this case.

The record reflected that the Appellants filed their notice of appeal and proposed bill of exceptions within the relevant ten-day deadline. Therefore, pursuant to Bowen, Appellants properly and timely appealed from the Board’s decision. Accordingly, the court reversed the circuit court’s dismissal of the appeal as untimely. On remand, the circuit court was instructed to consider the merits of the arguments raised in the Appellants’ bill of exceptions

Lee v. City of Byram, 273 So.3d 797 (MS App. 5/21/2019)