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Date: 04-21-2016

Case Style: Peter Barrett and Fay Barrett v. City of Gulfport, Mississippi

Case Number: 2015-CA-00353-SCT

Judge: Lawrence Bourgeois, Jr.

Court: IN THE SUPREME COURT OF MISSISSIPPI

Plaintiff's Attorney: Gail D. Nicholson

Defendant's Attorney: Margaret E Murdock

Description: The instant case arises out of the City’s efforts to rebuild the antebellum home Grass
Lawn after it was destroyed during Hurricane Katrina. Grass Lawn was built in 1836, sixty
years prior to the City’s founding. Grass Lawn served as a private residence until 1973,
when the City purchased it to use as an event space for weddings, parties, and other private
events. Critically to this case, the Grass Lawn property is located in a R-1-7.5 zoning district,
which is defined as “single-family residence districts – low density.”1
¶3. On August 29, 2005, Grass Lawn was reduced to its slab by Hurricane Katrina, and
it remained in this condition for roughly three years. In November of 2008, the City filed an
application with its Department of Urban Development Planning Commission seeking
approval “[t]o allow a non-conforming use in an R1.75 zoning district. The use shall be a
Recreational facility.” The application identified Grass Lawn as the property in question and
also noted that the “building/structure does conform with R1.75 zoning requirements.”
¶4. The City’s application seems self-contradictory at first glance. The application
requests approval of a nonconforming use on the property but states that Grass Lawn will be
1 Gulfport, Miss., Code of Ordinances Appx. A, § III(C)(4) (1989) (“[R-1-7.5] districts are composed mainly of areas containing one-family and open areas where such development seems likely to occur. The district regulations are designed to protect the residential character of the districts by prohibiting all commercial activities; to encourage a suitable neighborhood environment for family life by including among the permitted uses such facilities as schools and churches; to prevent overcrowding of land by requiring certain minimum yard and other open spaces for all buildings; and to avoid excessive population density by requiring a certain minimum building site area for each dwelling unit.”) 2
used as a “recreational facility.” The record reveals that the City intended to use the term
“public recreation center,” rather than “recreational facility,” as the former is included in the
City’s zoning ordinances as a permitted use for property located within a R-1-7.5 zoning
district. This intent is supported by the City’s later arguments before the Planning
Commission and City Council. Because Planning Commission approval still is required for
permitted uses, it appears that the purpose of the City’s application was to secure a permitted
use – a public recreation center – rather than a nonconforming use for Grass Lawn.
¶5. The City’s application was accompanied by a letter from Frank Genzer, whose
architecture firm Genzer-WHLC was planning the reconstruction of Grass Lawn. The letter
established that the reconstruction of Grass Lawn “will re-establish its use as a museum,
providing educational tours and lectures, as well as a location for community receptions.”
¶6. The Gulfport Code of Ordinances requires the Planning Commission to respond to
applications like the City’s at its next regular meeting after such an application is filed.2
However, in this case, Planning Commission Chairperson Anna D. Stewart was asked to
schedule a special meeting on December 2, 2008, to consider the City’s application. She
refused, noting that a City Council meeting was scheduled for the same day. City Council
members often attended the Planning Commission’s meetings, and Stewart felt it would be
appropriate to give them the opportunity to do so in this case. Over Stewart’s objection, Larry
2 Gulfport, Miss., Code of Ordinances Appx. A, § VIII(A)(3)(a) (1989) (“Within ten (10) days of the receipt of an application, the building official shall transmit the application, together with the proposed site plan, to the planning commission. At its next regular meeting, but in any event within forty-five (45) days of receipt of such application by the building official, the planning commission shall approve or disapprove the application as to the location and site plan.”) 3
Jones, the Planning Commission’s Director of Urban Development, scheduled a special
meeting on December 2, 2008, to review the City’s application. Stewart objected to Jones’s
actions as violating the Planning Commission’s bylaws, which give only the chairperson the
authority to call special meetings. Stewart also objected to the use of her name on the public
notice for the meeting.
¶7. Peter and Fay Barrett, who owned property adjacent to Grass Lawn, filed a
Memorandum in Opposition to the City’s application. The Barretts alleged that the City had
used Grass Lawn as a private event venue, a nonconforming use for its zoning district, since
1973. The Barretts then argued that the City had abandoned any continued nonconforming
use of Grass Lawn by failing to file a building permit within one year after Grass Lawn was
destroyed by Hurricane Katrina, as required by the City’s zoning ordinances.3 The Barretts
also contended that the use of the term “recreational facility” in the City’s application was
a “subterfuge,” because the City did not intend to rebuild Grass Lawn as a public recreation
center within the meaning of the zoning ordinances. Rather, the Barretts alleged that the City
intended to continue to use Grass Lawn as a commercial space and included the term
“recreational facility” only as an attempt to fit within the zoning regulations. Finally, the
3 Gulfport, Miss., Code of Ordinances Appx. A, § VII(D)(6) (“Should such nonconforming structures and premises in combination be destroyed or damaged by an act of God, including tornado, hurricane, flood, wind, earthquake, etc., or accident not caused purposefully by the owner or tenant, the structure may be replaced or required [sic]. However, such replacement or repair shall be subject to the following provision: Application for a building permit must be made to the building official within one year of the time that the structure was destroyed. However, in cases of hardship the mayor and board of commissioners shall have the authority to extend said one-year limitations for additional periods of time upon application of the owner or leaseholder.”) 4
Barretts argued that Grass Lawn’s suggested use as a museum would not conform with the
zoning ordinances, either. Accordingly, the Barretts asked the Planning Commission to deny
the City’s application.
¶8. The special meeting of the Planning Commission took place on December 2, 2008.
At the hearing, Jones explained that the term “recreational facility” was used in the
application because “that terminology is in the ordinance . . . . Really, a better explanation
of the use would be a museum available to the public for private events.” Genzer confirmed
that Grass Lawn was being designed as a museum which could be rented to private parties
for events. Jones and Genzer explained that Grass Lawn itself would be rebuilt as it
originally stood in 1836, with any later additions to the home being excluded from the plans.
However, a catering kitchen, public restrooms, and offices would be added in an adjacent
building on the property. A representative of Genzer’s architecture firm explained that the
plan to rebuild Grass Lawn had taken longer than expected becasue it was being funded by
FEMA and had to be approved by FEMA, the National Historic Association, and the
Mississippi Department of Archives and History.
¶9. The Barretts appeared at the meeting and argued that the applicable zoning ordinances
required that the property be limited to residential use because the City had failed to apply
to rebuild Grass Lawn within the one-year time limit. Other neighboring property owners
appeared at the meeting and explained the various problems caused by Grass Lawn’s former
use as a private event venue. They contended that the neighborhood in which Grass Lawn
was located consistently was filled with loud noise and heavy traffic during events and that
5
the City had failed to enforce any noise or traffic regulations or the fire code at Grass Lawn
in the past. In response, Jones argued that the Planning Center was not being asked to
approve a nonconforming use for Grass Lawn but “to approve what is termed in the
ordinance a recreational center public [sic].” He claimed that Grass Lawn fit within the
definition of a public recreation center because it would be “available to the public for
private use.”
¶10. The Planning Commission ultimately approved the City’s application to use Grass
Lawn as a recreation center, with conditions placed on the property concerning event parking
and security. Aggrieved by the Planning Commission’s decision, the Barretts appealed to
the Gulfport City Council.
¶11. The City Council hearing was held on January 20, 2009. The Barretts argued that the
Planning Commission’s decision to approve the City’s application was invalid because it did
not have the authority to call a special meeting to consider the application. They also
reiterated their argument that the City had failed to preserve any nonconforming use on the
property by failing to apply for a building permit within the one-year time limit, noting that
this limitations period had been enforced strictly against members of the public after
Hurricane Katrina. One member of the City Council voiced her concern regarding the manner
in which the Planning Commission’s hearing was scheduled. She also had the City attorney
confirm that Grass Lawn’s prospective use a museum would not qualify as a conforming use
under the applicable ordinances. Another member of the City Council noted that the City had
denied a nonconforming-use application from an applicant who had missed the one-year
6
filing deadline by less than three weeks. Ultimately, however, the City Council voted 3-2 to
approve the decision of the Planning Commission.
¶12. On January 29, 2009, the Barretts filed a notice of appeal to the Harrison County
Circuit Court. Then, on March 27, 2009, the Barretts filed a motion for mandamus asking the
circuit court to compel the City to prepare a bill of exceptions, as is statutorily required in
appeals from the decisions of municipal authorities. See Miss. Code Ann. § 11-51-75. An
order granting mandamus was entered on May 21, 2009, and City transmitted the record to
the circuit court on June 4, 2009. The circuit court entered a scheduling order on July 29,
2009, setting the matter for oral argument on December 10, 2009. The parties were ordered
to file any briefs by this date as well.
¶13. The Barretts timely filed their brief with the circuit court, but the City never filed a
responsive brief. Instead, on December 3, 2009, the City withdrew its application to use
Grass Lawn as a recreation center. Then, in May 2010, the City Council amended Appendix
A, Section II(D) of the Gulfport Code of Ordinances to exempt all city-owned property from
the City’s zoning ordinances.4 This exemption previously had applied only to property
owned by the United States, the State of Mississippi, or Harrison County. Then, on April 16,
2013, the City Council issued a resolution declaring Grass Lawn “surplus municipal real
4 Gulfport, Miss., Code of Ordinances Appx. A, § II(D) (1989) (“Property owned by the United States of America, the State of Mississippi or Harrison County, and which is not subject to the police power of the city, and property owned by the city or its urban renewal agency are hereby declared to be exempt from all regulations of this appendix. Such property is designated on the official zoning map as G.P. (government property). Transfer of such property to private ownership shall automatically subject it to the regulations of the district in which it is located.”) 7
property . . . which is not presently needed for a valid municipal purpose[.]” The resolution
approved a lease agreement with Salute Italian, LLC, for the purpose of operating Grass
Lawn as “an event/catering venue for private parties[.]” This action prompted the Barretts
to resume the prosecution of their appeal.5
¶14. On April 26, 2013, the Barretts filed a motion for entry of judgment, arguing that the
City had admitted to the claims in their brief by failing to file a responsive brief. They also
alleged Grass Lawn currently was in violation of the City’s zoning ordinances because the
City had leased it as a commercial enterprise. In response, the City filed a motion to dismiss
the Barretts’ appeal as moot. The City argued that the only issue before the court was
whether Grass Lawn qualified as a “recreational center” under the City’s zoning ordinances.
Because the City had withdrawn its application with the Planning Commission to use Grass
Lawn as a recreation center, it argued that the Barretts were left with no valid claims.
¶15. On May 6, 2014, the circuit clerk filed a motion to dismiss the Barretts’ appeal for
want of prosecution. The circuit court then held a hearing on August 21, 2014, to consider
the Barretts’ motion for entry of judgment and the City’s motion to dismiss. After the
hearing, the record is silent again until January 10, 2015, at which point the circuit court
entered its final judgment dismissing the Barretts’ appeal as moot. Aggrieved by the circuit
court’s judgment, the Barretts have appealed to this Court. While the Barretts raise six
5 The Barretts contend that they did not actively pursue their appeal from December 2009 to April 2013 for two reasons. First, the Barretts claim that they were unsure of the City’s plans for Grass Lawn after it withdrew its application with the Planning Commission. Second, the City apparently was engaged in unrelated litigation regarding the reconstruction of Grass Lawn during this period. 8
assignments of error on appeal, we have consolidated their arguments into the following
dispositive issues:
I. Whether the circuit court erred in finding that the Barretts’ appeal was moot.
II. Whether the Barretts’ appeal meets an exception to the mootness doctrine.
The Barretts’ remaining arguments were not properly before the City Council or the circuit
court and therefore are inappropriate for review by this Court at this time.
STANDARD OF REVIEW
¶16. “Mootness has been called ‘the doctrine of standing set in a time frame[.]’” In re City
of Biloxi, 113 So. 3d 565, 572 n.4 (Miss. 2013) (citations omitted). The question of standing
is a jurisdictional issue and is reviewed de novo. Hall v. City of Ridgeland, 37 So. 3d 25,
33 (Miss. 2010).
DISCUSSION
I. Whether the circuit court erred in finding that the Barretts’ appeal was moot.
¶17. “Cases in which an actual controversy existed at trial but the controversy has expired
at the time of review, become moot.” Allred v. Webb, 641 So. 2d 1218, 1220 (Miss. 1994).
“[A] case is moot so long as a judgment on the merits, if rendered, would be of no practical
benefit to the plaintiff or detriment to the defendant.” Gartrell v. Gartrell, 936 So. 2d 915,
916 (Miss. 2006). This Court will not adjudicate moot questions. City of Madison v. Bryan,
763 So. 2d 162, (Miss. 2000) (citations omitted). In this case, the circuit court framed the
Barretts’ appeal as “an appeal concerning the use of [Grass Lawn] as a ‘recreation center’”
9
and found that the Barretts’ appeal was rendered moot by the City’s withdrawal of its
application to use Grass Lawn as a recreation center. The court reasoned:
An action, in this case an appeal to this Court from the Gulfport City Council, seeking to prohibit the City from utilizing a piece of real property as a “recreation center” most certainly expired, and thereby became moot, when the City has advised it no longer intends to use the property as a “recreation center” and has, in fact, withdrew [sic] its application to use the property as such.
The circuit court also found that the instant appeal was not an appropriate avenue to raise
new claims concerning other potential uses for Grass Lawn.
¶18. We agree with the circuit court that the Barretts’ appeal of the City Council’s decision
to approve Grass Lawn’s use as a recreation center is moot. In reviewing the viability of the
Barretts’ appeal, it is important first to clarify the scope of the circuit court’s review in this
case. The circuit court was acting as an appellate court on review of a bill of exceptions
challenging the decision or judgment of a municipal authority. See Miss. Code Ann. § 11-51
75. In such a case, the bill of exceptions serves as the record on appeal and “embodies the
facts, judgment, and decision involved” in the proceedings below. Ladner v. Harrison Cty.
Bd. of Supervisors, 793 So. 2d 637, 638-39 (Miss. 2001). Thus, the circuit court, acting as
an appellate body, must limit its review of the evidence to the bill of exceptions. Id. Here,
the circuit court was limited to determining whether the City Council, based on the evidence
contained in the bill of exceptions, had erred in approving the City’s application to use Grass
Lawn as a recreation center. Any ruling with respect to the City’s application would be of no
benefit to the Barretts or detriment to the City, as the application no longer is valid. Gartrell,
936 So. 2d at 916. And any procedural defects in the Planning Commission’s approval of
10
the application were cured by the subsequent withdrawal of the application. This Court
previously has found appeals to be moot under similar circumstances occurring after the
perfection of the appeal. See In re Order Establishing Civil, Criminal Divs. in Hinds Cty.
Circuit Court, 186 So. 3d 481, 484 (Miss. 2012) (constitutional challenge to judge’s order
dividing Hinds County Circuit Court into Civil and Criminal Divisions rendered moot by
judge’s subsequent withdrawal of order); Gartrell, 936 So. 2d at 917 (appeal of chancellor’s
judgment granting appellee subpoena to depose an out-of-state party rendered moot by
appellee’s subsequent waiver and withdrawal of subpoena).
¶19. The Barretts have raised various allegations concerning the City’s potential or actual
use of Grass Lawn after the application was withdrawn, but those issues were not before the
City Council or the circuit court. The narrow issue on appeal was the propriety of the City
Council’s decision to approve Grass Lawn’s use as a recreation center, and that issue has
expired.
¶20. In addition, the Barretts’ appeal was rendered moot by the City Council’s amendment
of Appendix A, Section II(D)(6) of the Gulfport Code of Ordinances, exempting all city
owned property from complying with the City’s zoning ordinances. Resolution of the
Barretts’ claim that the City Council had approved a nonconforming use for Grass Lawn
would be of no benefit to the Barretts due to the current state of the City’s zoning ordinances.
The Barretts argue that this amendment constitutes illegal spot zoning, but the instant appeal
is not the appropriate forum to challenge the legality or constitutionality of the City’s
11
subsequent amendment of its zoning ordinances, regardless of the merit of the Barretts’
arguments.
¶21. The amendment in question occurred in May 2010, after the City Council approved
the City’s application, so evidence of the amendment’s passage is not part of the bill of
exceptions. Thus, the Barretts argue that the circuit court erred in considering this evidence,
since it was not considered by the City Council in approving the City’s application. We find
the Barretts’ argument to be without merit. The issue of mootness, by its very nature, most
commonly arises after a case has been submitted to a court for resolution.6 See Fails v.
Jefferson Davis Cty. Pub. Sch. Bd., 95 So. 3d 1223, 1226 (Miss. 2012) (challenge to
Jefferson County School District Superintendent’s decision to revoke all student transfers to
Lamar County School District rendered moot when, after perfecting their appeal, the
appellants moved to Lamar County, giving their child a statutory right to attend school in
Lamar County). Thus, it was appropriate for the circuit court to consider events occurring
after the City Council’s decision for the limited purpose of determining the issue of whether
the Barretts’ appeal of the City’s Council’s decision was moot. On the other hand, the
substantive issue of whether the passage of the amendment constitutes spot zoning is a
separate, fact-intensive question which must be brought in the first instance in the appropriate
forum before being subjected to appellate review.
II. Whether the Barretts’ appeal is excepted from the mootness doctrine.
6 Likewise, we find no merit in the Barretts’ argument that the circuit court erred in relying on the City’s grant of a Historic Preservation Easement on Grass Lawn in 2012 in finding that the Barretts’ appeal was moot. 12
¶22. The Barretts argue that their appeal is excepted from the mootness doctrine because
their claims involve matters of the public interest and are capable of repetition yet evading
review. This Court will not consider a case to be moot if the challenged action is capable of
repetition yet evading review, meaning that “(1) The challenged action was in its duration
too short to be fully litigated prior to its cessation or expiration, and (2) There was a
reasonable expectation that the same complaining party would be subject to the same action
again.” Strong v. Bostick, 420 So. 2d 1356, 1359 (Miss. 1982) (quoting Weinstein v.
Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 46 L. Ed. 2d 350 (1975)). In addition, this Court
will review an otherwise moot issue “when the question concerns a matter of such a nature
that it would be distinctly detrimental to the public interest that there should be a failure by
the dismissal to declare and enforce a rule for future conduct.” Sartin v. Barlow, 16 So. 2d
372, 376 (Miss. 1944). The circuit court reviewed the Barretts’ appeal under the “capable
of repetition yet evading review” exception and found that this exception did not apply. The
court reasoned:
The parties were given the full opportunity to state their positions with regard to the pending question. At no point have the appellants asserted that they were, at any time, denied the opportunity to present their position fully before the Planning Commission . . . . Further, based on the record before the Planning Commission and based on the City’s withdrawal of its application to use the structure at 720 East Beach Boulevard as a “recreation center,” it is evident that the [City] has no intent to use this structure as a “recreation center.”
The trial court did not consider the public-interest exception to the mootness doctrine.
¶23. We find that the circuit court did not err in finding that the Barretts’ appeal did not
meet the “capable of repetition yet evading review” exception to the mootness doctrine.
13
Specifically, the Barretts’ appeal does not meet the second prong of the Strong test. Neither
the Barretts nor any other neighboring landowners to Grass Lawn have a reasonable
expectation that Grass Lawn will be used as a recreation center in the future. The City has
withdrawn its application to use Grass Lawn as a recreation center and has admitted that
Grass Lawn’s current design would not be conducive to such use. The Strong test requires
an expectation that the complaining party would be “subject to the same action again.”
Strong, 420 So. 2d at 1359 (emphasis added). In addition, it would be impossible for these
issues to be repeated under the current state of the City’s zoning ordinances, as the Grass
Lawn property currently is exempt from the ordinances in question.
¶24. The Barretts also argue that their appeal fits within the public-interest exception to the
mootness doctrine. However, aside from the assertion that “[t]he Public Interest aspect of
accountability for [the City’s] tactics should be self evident,” the Barretts have neither
offered a substantive argument nor cited any authority explaining how this exception applies
to this case. “[I]t is the duty of an appellant to provide authority and support of an
assignment.” Hoops v. State, 681 So. 2d 521, 526 (Miss. 1996). “Failure to cite any
authority is a procedural bar, and [this Court] is under no obligation to consider the
assignment.” Weaver v. State, 713 So. 2d 860, 863 (Miss. 1997) (citing McClain v. State,
625 So. 2d 774, 781 (Miss. 1993)).

Outcome: We find that the circuit court did not err in finding that the Barretts’ appeal was rendered moot by the City’s withdrawal of its application to use Grass Lawn as a recreation center. In addition, the issues raised in the Barretts’ appeal do not meet an exception to the mootness doctrine. Accordingly, we affirm the judgment of the circuit court.

AFFIRMED.

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