IN THE SUPREME COURT OF MISSISSIPPI NO. 2014-SA-01514-SCT COMO STEAK HOUSE, INC., THE WINDY CITY GRILLE, LLC, MAY ’S COMO RENTAL, LLC, COMO COURTY

ARD, LLC, LITTLE RED DOT, LLC, ORR FAMILY

FARM TRUST, MIKE TAY LOR BARTLETT, MARGUERITE JEMISON BARTLETT, EARNESTINE BRIDGEFORTH, DOROTHY

KERNEY WILBOURN, V IRGINIA L. Y O UNG, V IRGINIA PORTER GRAV ES, MIRIAM ATKINSON SMITH AND BETTY ORR ATKINSON

v. BOARD OF SUPERV

ISORS OF PANOLA COUNTY , MISSISSIPPI AND H & G LAND COMPANY

, L. P. DATE OF JUDGMENT: 09/16/2014 TRIAL JUDGE: HON. ROBERT P. CHAMBERLIN TRIAL COURT ATTORNEYS: JOHN T. LAMAR, JR. DAVID M. SLOCUM, JR. MICHAEL K. GRAVES W I LLIAM B. PALMERTREE DARRIN JAY W ESTFAUL COURT FROM W HICH APPEALED: PANOLA COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: DAVID M. SLOCUM, JR. JOHN T. LAMAR, JR. ATTORNEYS FOR APPELLEES: DARRIN JAY W ESTFAUL H. SCOT SPRAGINS GOODLOE T. LEW IS LAW RENCE J. TUCKER, JR. NATURE OF THE CASE: CIVIL - REAL PROPERTY DISPOSITION: AFFIRMED - 09/15/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE DICKINSON, P.J., COLEMAN AND BEAM, JJ. DICKINSON, PRESIDING JUSTICE, FOR THE COURT:¶1. H&G L a n d C o mp any , L.P. (“H&G”), f i led an application with the P anola County Land D e v e l o pm ent Com m ission (“the Com m ission”) f or a special e xception t o Panola County ’ s Land Use District Ordinance (“the Ordinance”) t o e xtract sand and gravel on its property

. W hen the Com m ission f ailed to approve the request, H&G appealed to the Panola County Board of Supervisors (“the Board”), which reversed the Com m ission. This appeal f ollowed. W e af

f irm

. FACTS AND PROCEDURAL HISTORY ¶2. In a reas zoned “Agricu l t ural,” the O rdinance provides f or perm itted u ses, and uses
perm itted by special exception. An owner of a griculturally zoned property m ay a pply f o r a special exception perm it f or the “extraction of

. . . gravel

. . . provided a reclam a tion plan is subm itted and appro v e d b y t h e . . . Com m ission.” According to the Ordinance, the Com m i ssion, or the Board—in considering whether to grant a special exception— shall investigate all aspects of the application giving particular re g ard as to whether such a building or use will: (a) [ s]ubstantially

increase traf

f ic hazards or congestion[ ,] (b) [ s]ubstantially

increase f

ire hazards[ ,] (c) [ a]dversely

af f ect the character of

the neighborhood[ ,] (d) [ a]dversely

af f ect the general welf

are of the county [ ,] (e) [ o]vertax public utilities or f acilities[ , and] (f ) [ b]e in c onf

lict wit h t he g oals of [ the] Progress Panola General Developm ent Plan. And “any party

aggrieved by any f

inal action, decision, ruling, judgm ent, or order of the

. . . Com m ission m ay appeal to the . . . Board . . . within ten calendar day s of such decision.” ¶3. H&G entered i nto a lease agr e e me n t w i t h A P A C

- M i s s i s s i p pi, Inc. (“APAC”), whereby APAC would operate an asphalt plant and m ining operation on H&G’s land f or a

2period of t wenty y ears. H&G then f iled a n application f

or a special exception to extract sand and gravel on its property

. The application included docum enta t ion concerning property , including ownership, governm ent perm its, insurance, a bond f o r reclam ation of the property , and site proposals. Thereaf ter, the Com m ission held a series of hearings to consider H&G’s application. At the last hearing, the Com m ission denied the application and inf orm ed H&G that it could appeal to the Board. 1 ¶4. Two day s later, H&G—along with APAC—notif ied the Com m ission that it wished

to appeal the “Com m ission’s f ailure to approve” its a

pplication to t he B oard. At i t s next regularly scheduled m e eting, the Board held a hearing to consider H&G’s request. Several local businesses and r esidents attended the m eeting to oppose H &G’s request, so t he Board
perm itted each side—the applicant and those o pposed—thirty m inutes to present their
argum ents. ¶5. Following each side’s presentation, t he Board voted to approve H&G’s application. The Board’s order approving H&G’s special exception stated:

ORDER OF THE BOARD OF SUPERVISORS On August 12, 2013, there cam e on f o r consideration by the Board

. .

., an appeal f

i led by H & G

. . . a n d A P AC

. . . of a decision b y the

. . . Com m ission render e d J uly 8, 2013, deny ing the application f or a special exception. Presentations w ere m ade by Mike Graves, a t t o r ney f o r H&G

. . . and APAC

. . . and D avid Slocum , attorney f or a g roup citize n s f

rom the Com o , M ississippi area. Testim ony was of f ered b y Jerry Brewer concerning the ef f ect of m ining operations on property values. A copy o f the curriculum vitae of [ ] Brewer is incorporated i n t h e r e c ord of these proceedings.

1 T h e p arties d isp u te w h eth er th e C o m m issio n actu a lly “d en ied ” H & G ’s ap p licatio n o r sim p l y “f ailed t o ap p ro v e” it. F o r p u rp o ses o f t h i s ap p eal, w e b eliev e it to b e irrelev an t. H o w ev er, th e C o m m i ssio n ’s m in u tes d o state th at th e ap p licatio n w as “d en ied .” 3Testim ony was also o f f e red by Earnestine Bridgf orth of Cistern Hill M.B. Church, Jam es May , Tim Rakestraw of A PAC

. . . Nola n We s t o f H & G

. . . and other individuals attended the m eeting. H&G

. . . and APAC

. . . presented a notebook with 2 9 tabbed entries, which is incorporated i n t o the record of these proceedings. The Concerned Citizens o f Com o, M i ssissippi, also presented a booklet w ith correspondence and petition with af

f idavits, which is incorporated i nto the r ecord o f t h ese proceedings.
A f t er d iscussion, Supervisor Flint m ade a m otion t o a pprove the application f

or special exception f

or twenty (20) y e ars with hours o f operation f rom 6 :00 A.M. to 6:00 P.M., Monday t hrough Saturday , and that the application was to conf

orm t o t h e site plan subm itted b y the applicants. S u p ervisor Thom as seconded the m otion and a r oll call vote was h e l d

. Supervisors Flint, T hom as, and Morris v o t e d i n f avor of the m otion. Supervisor B irge v o ted against the m otion. Supervisor Avant was absent due to illness. IT IS THEREFORE ORDERED by the Board

. . . t hat the decision of the [ ] Com m ission dated July 8 , 2013, deny i ng the application of H&G

. . . f or a s pecial exception in an agricultural district f or a gravel m ine, hot m ix asphalt plant, concrete p lant, crusher and sand and gravel washer located [ at ]16535 Highway 310, Com o, Mississippi, is hereby overruled a special exception is granted t o H&G

. . . and APAC

. . . f or a t wenty (20) y ear period with hours of operation to be lim ited f rom 6:00 A.M. until 6:00 P.M. on Monday s t hrough Saturday s o f each week. The operation a n d developm ent shall conf orm t o the site plans subm itted by the applicants. A certif ied copy of this O rder shall be f orwarded to Michael Graves . . . . ¶6. Thereaf

ter, i n the Circuit Court f or the First J udicial Dis t r i c t o f P a n o l a County , Mississippi, the Appellants 2 f i l e d a N o t ice of Appeal, stating that they w ere appealing the Board’s approval of H&G’s special-exception application. The Board properly verif ied the Bill of Exceptions as selected by the Appellants, and the a pp e l l a t e r ecord was designated.

2 F o r th e p u r

p o ses o f b rev ity , w e ref

er co llectiv el y t o a l l p arties w h o ap p ealed th e B o ard ’s d ecisio n ap p ro v in g H &G ’s ap p licatio n sim p ly as “A p p e llan ts.” 4H&G and APAC then f iled a m otion t o i ntervene, which was g r a n t e d b y a n A g reed Order Allowing Intervention. ¶7. In their brief

, Appellants argued that the Board’s decision was both unsupported by substantial evidence a nd arbitrary or capricious. The Board responded t o the contrary

. H&G and A P A C f

i l ed a brief asserting that Appellants lacked s tanding to appeal the Board’s decision, a n d t hat—because the appeal was n ot tim ely f iled—the circuit court lacked jurisdiction. ¶8. The circuit court a f f irm e d the Board’s decision. H&G and A PAC f iled a Motion to Reconsider, and the court entered an order Granting in Part and Deny ing in Part—in which it granted on the standing issue b ut once a gain rejected the a r gum ent about tim eliness of the appeal. W ithin its order, the court scheduled a hearing f or the parties to present evidence and
argum ents on the question of standing. ¶9. Following a lengthy hearing, the court entered a F inal O r d e r o n S t a n ding/Merits, f inding that Appellants had standing to appeal the Boar d ’s decision, and a lso concluding

once again that the Board’s decision was supported by substantial evidence, w as n ot arbitrary or capricious, and consequently m ust be af f irm ed. ¶10. Appellants tim ely appealed t o t h i s Court. H&G and APAC cross-appealed, raising
y et a gain t he i s sues of tim eliness and standing. 3 A PAC t hen f iled with this Court a Motion

to D ism iss Cross-Appeal and W ithdraw f rom Direct Appeal. Although neither the Board nor Appel lants opposed APAC’s withdrawal, H&G responded a nd contended that APAC was

3 H &G ap p ears to h av e ab an d o n ed th ese arg u m e n ts as it c o m p letely f ailed to ad d ress eith er issu e in its b r ief

to th i s C o u rt. T h eref

o re, w e d o n o t co n sid er th eir cro ss-ap p eal. 5a necessary and i ndispensabl e p a r t y . A panel of this C ourt—com p osed of W aller, C.J., Kitchens and P ierce, J J.—granted APAC’s m otion to w ithdraw and struck H&G’s response as untim ely . Now bef

ore us, Appellants raise the f o llowing three issues:
I. W h e t her the Board’s decision t o approve H&G’s application fo r special ex ception w as supported by substantial evidence; II. Whether t he Bo a r d ’s decision to a pprove H&G’s application for special ex ception w as arbitrary o r capricious; and III. Whether APAC is a necessary and i ndispensable party w hose w ithdraw al renders the ap p e al m oot requiring reversal of t he Board’s decision.

STANDARD OF REVIEW ¶11. This Court h as h e ld t hat a boa r d ’ s d e cision regarding an application f or a “special exception” is an adjudicative rather than legislative act; 4 a nd when reviewing such acts, we

em ploy the sam e standa r d o f review we u tilize in appeals f rom adm i nistrative agencies. 5 Accordingly , we w ill not disturb the Board’s decision t o approve H& G ’ s application f or special e xception unless we f ind that the Board’s decision was 1) unsupported by s u bstantial evidence, 2) arbitrary or capricious, 3) bey ond the Board’s scope or powers, or 4 ) i n violation of a party ’s constitutional or statutory rights. 6

4 B a rn es v. B d

. o f S u p erviso rs, D eS o to C

ty. , 5 5 3 S o . 2 d 5 0 8 , 5 1 0 (M iss. 1 9 8 9 ).

5 F a lco L im e, In c. v. M

a yo r & A ld

e rm a n o f C i ty o f V ick sb u rg , 8 3 6 S o . 2 d 7 1 1 , 7 2 1 (M iss. 2 0 0 2 ).

6 W ilk i n so n C ty B d . o f S u p erviso rs v. Q u a lity F

a rm s, In c. , 7 6 7 S o . 2 d 1 0 0 7 , 1 0 1 0 (M iss. 2 0 0 0 ). 6¶12. It is true that the initial burden rested upon H&G to “prove by a preponderance of the evidence t hat [ it] [ had] m et the elem ents/f actors essential to o btaining the [ s pecial exception]
perm it.” 7 But o nce t he Board m ade its decision, “a rebuttable presum ption exists in f

avor of the action of [ t he Board], and the burden of p roof i s on the party ch a l l e n g i n g [ the Board’s decision].” 8 ¶13. W e “m ay neither s ubstitute [ our] own judgm e nt f or that of t he [B oard] which rendered the decision nor reweigh the f a cts of the case,” 9 f

or, i t i s “not the f

unction of [ this Court] to determ ine whether the action of t he [ Board] is right or wrong, correct or incorrect, wise or unwise, advisable or best f itted to the situation involved.” 10 F urther, the bill of exceptions “serves as the record on appeal,” and an a ppellate c ourt “can only c onsider t he case as m ade by the bill of

exceptions.” 11
DISCUSSION I. Whether t he Board’s decision to approve H&G’ s a pplication for special ex ception w as supported by substantial evidence.

7 W ilk in s o n C

ty. B d . o f S u p erviso rs , 7 6 7 S o . 2 d at 1 0 1 0 (q u o t in g B a rn es , 5 5 3 S o . 2 d at 5 1 1 )

.

8 P u b . E m

p s. R et. S ys. v. M a rq u ez , 7 7 4 S o . 2 d 4 2 1 , 4 2 5 (M iss. 2 0 0 0 )

. 9 Id . 10 F a lco L im e, In c. , 8 3 6 S o . 2 d at 7 2 2

. 11 L o w n d es C ty. ex rel. B d

. o f S u p e rviso rs v

. M c C la n a h a n , 1 6 1 S o . 3 d 1 0 5 2 , 1 0 5 6 (M iss. 2 0 1 5 ) (q u o tin g H

o o k s v. G eo rg e C

t y. , 7 4 8 S o . 2 d 6 7 8 , 6 8 0 (M iss. 1 9 9 9 )). 7¶14. Appellants f irst contend that t he Board’s decision to a p prove H & G’s application f or special exception was unsupported by substantial e vidence. For reasons d iscussed below, we disagree. ¶15. This Court def

ines “s u b s t a n t ial e vidence” as “such relevant evidence as reasonable

m inds m ight accept as adequate t o support a conclusion.” 12 W e have f u rther described “substantial evidence” as “ m ore than a m e r e scintilla of evidence,” or “ s om ething less than a preponderance of

the evidence but m ore than a scintilla or glim m e r .” 13 ¶16. As already m entioned, when determ ining whether t o approve or deny an application f or s p ecial exception, the Ordinance requires the Board to caref ully consider six f

actors. W e will now identif

y and discuss each f

actor and any evidence presented to the Board relevant to that particular f

actor. A

. Traffic Hazards or Congestion ¶17. The Ordinance required the Boa r d f i r s t t o c o n t em

plate whether the proposed site would s ubstantially increase traf f ic hazards or congestion. In support of its re q uest, H&G presented m ater i als f

rom a Mississippi D epartm ent of Transportation (“MDOT”) traf f ic

count f or the previ o u s t w o y e ars—2011 and 2012. According t o these m aterials, 2,900 vehicles traveled near the proposed site on a d aily basis. APAC’s f igures indicated that the proposed site would generate b etween one and two hundre d a dditional v ehicles per

12 H o o k s , 7 4 8 S o . 2 d at 6 8 0 (q u o tin g J o h n so n v . F erg u s o n , 4 3 5 S o . 2 d 1 1 9 1 , 1 1 9 5 (M iss. 1 9 8 3 )).

13 M i ss. D ep ’ t o f E n vtl. Q u a lity v. W

eem s , 6 5 3 S o . 2 d 2 6 6 , 2 8 0

– 8 1 (M iss. 1 9 9 5 ). 8day

—with two hundred being the absolute m axim um . Based on these num

bers, the proposed site would increase traf

f ic only by seven to eight percent. ¶18. A l s o , H & G subm itted a site plan showing that the proposed site woul d h a v e a n
entrance and exit less than o n e quarter of a m ile f r om Interstate 55 (“I-55”)—dem onstrating that m ost of the additional traf f i c produced by the site would b e along I-55 and not on Highway 310. H&G f

urther showed it already had coordin a t e d w i th M DOT regarding
necessary traf

f ic c ontrols a nd that MDOT had given H&G instructions o n h o w i t was to construct the proposed site’s 175 f oot entrance/exit. ¶19. And, f

inally , w hen concerns we r e r a i s e d a b o u t t h e i ncreased traf f ic’s ef f ect on a nearby church, H&G insisted that it had “m ade clear that it was willing to cooperate with the church when they had special e vents going on,” and that “APAC r epeatedly requested to

m eet with church leaders to discuss,” but the church “repeatedly declined” to do so. ¶20. Additionally , Dway ne B oy d, a r e p r e s e n t a t ive f or APAC, responded t o concerns raised about which r o a d s t h ese additional trucks would use. Boy d m aintained that, although seventy -f ive percent of the trucks would be outside haulers, and APAC actually owned only

t w e nty -f i ve percent of t he trucks that w ould be used, A P AC would still control w h a t routes—i.e., roads—these outside haulers would take.
B. Fire Hazards ¶21. The n ext f

actor the board e xam i n e d was whether the proposed site would substantially increase f ire hazards. W e f

irst note that this f

actor was not in dispute at the hearing. Even so, H&G did present evidence relevant to the issue.

9¶22. First, H&G presented evidence that no explosion had e v er occurred a t any of APAC’s twelve Mississippi plants. Additionally , in the past f if t een y ears of APAC’s operations, only

two f ires had occurred, and b oth were “extinguished a n d h andled internally by APAC.” Further, t he proposed s ite would h ave a 2,000 gallon water truck a nd a f reshwater pond to

com bat a f ire, were o ne to o c cur. Fina lly , if needed, em ergency assistance easily could access the site because of its close proxim ity

to I-55. C

. Character of the Neighborhood ¶23. T h e B o a r d t h e n considered the third f actor—whether the p ropos e d s i t e w o u l d adversely af

f ect the character of the neighborhood. H&G provided the Board with a m a p of the land surrounding the p r oposed sit e showing t he a rea as “predom inantly rural [ and] sparsely populated.” The o nly properties located a d jacent t o the p roposed site were owned by Nolan W est—the President of H&G—and Cal W ilkins. H&G presented t he Board with

a l etter f rom W i lkins evidencing that “he believ[ ed] that [ the m ining operation] would be a good project to have in Panola County .” H&G also pointed out that there were only a f ew houses within a one-m ile radius of the site and that all of

those houses were located on the other side of

—or across—I-55. ¶24. W i th respect to noise, H&G presented ev i d e n c e t h a t, as to the residences located

across I -55, t h e r e would be a twelve-f oot berm with vegetation along t he t op, a thirty -f oot
tree b uf f er, and an elevated r oad b ed on I-55. According to H&G, such p recautions would prevent t hose particular residents f rom h earing a ny noise f

rom the plant. A s it related to any hom es located nearer the proposed site on the s am e side of I-55—there were f ew, if any , as

1 0m ost of the land adjacent to the proposed site was vacant—there would be another twelvef oot berm w i t h v egetation a nd an already -existing, 300-f oot tree buf

f e r. Finally , the

m achinery

used at the proposed site was to be equipped with “white noise.” ¶25. H&G next p resented evidence that the propos e d s i te would “be alm ost com pletely obscured f

rom s ight.” The twelve-f oot berm s with vegetation and tree buf f ers would f

ully

cover t he site “except f

or the very tip top o f t h e p rocessing plants”—such that only about

seven f eet of t he p lant would be visible. Additionally , APAC planned to landsca pe, f ence and p ave the site’s entry

/exit. H &G also addressed concerns raised about the site generating dust and asserted t hat the site was not e xpected to produce a signif icant am ount of dust, and that any dust that was produced easily could be taken care of

by the on-site water truck. ¶26. Finally , w ith respect to this f actor, H&G addressed the s i t e ’ s p o s s i b l e im pact on nearby property values. To properly tackle the issue, H&G elicited tes t i m o n y f rom Jerry Brewer—a certif

ied real estate appraiser f

rom Senatobia, Mississippi—who f irst detailed his qualif ications and then brief

l y discussed the m ethods he em ploy ed in assessing “the im pact

on property v a l u e s as t hey relate to proxim ity to gravel ty pe operations” sim ilar to the one proposed by H&G and APA C

. B r e w e r stated that, b ased o n the investigation he had conducted, “there is no im pact on property values as relates to a p roxim ity to a pit.” Brewer f urther asserted that “there is also no inhibition in the developm ent of land residentially .”
D. General W

elfare of the County ¶27. The f

ourth f a c t o r e v a l u a t e d b y t h e Board was whether the proposed site would adversely af

f ect the g eneral welf

are of the county

. H&G f irst pointed o ut that, initially , the

1 1proposed operation would create between f if teen and twent y f

ull-tim e jobs. A dditionally , H&G predicted t he plant would i ncrease tax r evenues f o r the county , and H&G expected the

town of Com o to r eceive additional revenue f rom APAC’s use of natural g as—pursuant to
an agreem ent entered into between the town of Com o and Mississippi Natural, Inc. ¶28. H&G also p resented t o the Board a letter f rom MMC Materials—a concrete supplier in the area. In the letter, MMC e xpressed its d esire that the special exception be granted to address “the need f

or aggregates in Northwest Mississippi.” H&G t hen asserted t hat APAC “has proven to be a good corporate citizen wherever it has been,” and provided the Board with two letters f

rom Mississippi churches thanking APAC f or its contributions. ¶29. F i n a l l y , H & G h i g h l i g h t e d m a n y c o m m e n d a t i o n s A P A C h a d r e c e i v e d f r o m NAPA—the Nati o n a l A sphalt Pavem ent Association. In particular, APAC received Diam ond Achievem ent Com m endations f or Excellence in Asphalt Plant/Site Operations f or all of i ts M ississippi plants. These com m endations were based o n the plants’ “ appearance, operations, environm e ntal practices, saf e t y p e r m itting and regulatory com pliance, and

com m unity relations.”
E. Public Utilities and Facilities ¶30. H&G then discussed the f if th f actor—whether the proposed site w o uld overtax public utilities or f

acilities. It f

irst pointed out that no county roads would be used by those involved in the proposed operation so that the County would not be “spending a n y m oney to m aintain roads

. . . f

or the o peration of this pit.” H& G also s ubm itted two letters f r om utilities providers f

or the County

—Mississippi Natural and Entergy

. Both com panies conf

irm ed that

1 2they would be capable of p roviding services to the proposed f acility without af

f ecting service

t o e x i s ting custom e rs i n the area. And APAC had obtained a perm it f rom the Miss i s s i p p i Departm ent of Environm ental Quality allowing APAC t o “divert or withdraw f or benef icial use the public waters.”
F

. Progress Panola General Development Plan ¶31. The s ixth a n d f

i n a l f a c t o r addressed was whether the proposed site would be in conf lict with the goals of the P rogress Panola General Developm ent Plan. Because the
purpose of Progress Panola is to prom ote developm ent w ithin t he county , H&G i nsisted the proposed site would help advance the p lan by creating additional j obs and i ncreasing tax and other revenues f

or the County a nd the town of Com o. H&G once again ref e renced the letter f rom MMC Materials dem onstrating th a t the site would help f ulf ill an expressed need f

or additional sources of aggregate in the area. ¶32. Based on the f

o regoing discussion, we are persuaded that substantial evidence clearly supported the Board’s decision such that “ reasonable m inds m ight accept a s adequate to support a conclusion.” ¶33. Appellants’ argum ent—that substantial e v i d e n c e s u p p o r t e d a d e n i a l of H&G’s

a p p l i c a t i on—sim

ply is not t he question bef ore us. Appellants also r epeatedly point to th e Com m i ssion’s f

ailure to app r o v e or deny H&G’s application as evidence that the Board erred. But the C o m mission’s decision is not at issue here. Our f ocus is on whether the Board’s decision to grant H&G’s app l ication f or a special exception was s upported by substantial evidence. And based on discussion above, we f ind it was.

1 3¶34. Appellants also brief ly contend that the Board’s decision should be reversed because, they allege, t h e B o ard’s o rder “lacked a n y f indings of f

act.” W e f

ind no m erit in this
argum ent. I t i s true that “f indings of f

act which show the actual g r o unds of a d ecision are necessary f

or an intelligent review of a quasi-judicial o r a dm inistrative decision.” 14 And this Court p reviously has h eld that B oards should m a ke f indings o f f

act when granting or deny ing conditional use, or special exception, perm its. 1 5 ¶35. H o w e v e r , w e a l s o have held that “ granting t he [ special exception] perm i t a n d im p osing conditions upon the granting of the perm it, is tantam ount t o a f i nding o f f

act . . . that the s ix questions were answered and f ound in f avor of the applicants.” 16 W e believe that the instant case is n o d if f erent. The Board g ranted t he application and im p osed several conditions—(1) restricting its term to twenty y ears, (2) operating only six day s a week, (3) f rom 6:00 a.m . t o 6:00 p. m. A d d i t i o n ally , the Board required that the operation “conf orm to the site plan subm itted by the applicants.” ¶36. But, even w ithout the conditi o n s i m p o s e d a b o v e , the Board’s decision contained suf f i cient f indings of f

act. In its Order, the Board specif ically nam e d the individuals who attended and s poke at t he hearing. It f urther incorporated the “notebook with t w e n t y - n ine tabbed entries” subm itted by H&G and the “booklet with correspondence and petition with af f idavits” prepared by Appellants. A ccordingly , we f ind that t he order suf

f i ciently showed

14 H a rriso n v. M

a yo r & B d . o f A ld erm a n o f C ity o f B a t esville , 7 3 S o . 3 d 1 1 4 5 , 1 1 5 3 (M iss. 2 0 1 1 ).

15 Id . (citin g B a r

n es , 5 5 3 S o . 2 d at 5 1 1 ).

16 B a rn es , 5 5 3 S o . 2 d at 5 1 1

. 1 4the Board’s grounds f o r its d e c i s i o n such that its decision could be s ubject t o intelligent review.
II. Whether t he Board’s decision to approve H&G’s ap p l i cation for special ex ception w as arbitrary o r capricious

. ¶37. Appellants next argue t hat the Board’s decisi o n t o approve H &G’s application was arbitrary and capricious. For the sam e reasons as discussed above, we disagree. ¶38. W e have “held that a ‘holding which is supported by substantial evidence cannot be arbitrary a nd capricious.’” 1 7 An act i s “arbitrary ” if it “is not done according to reason o r judgm ent, but depending on the w ill alone.” 18 An act is “ c apricious” when “d o n e w i t h o u t
reason, in a whim sical m anner, im ply ing either a lack of understanding or d isregard f or the surrounding f

acts and settled controlling principles.” 19 ¶39. And, f

inally , this C ourt has held that it will n ot d isturb a governing board’s decision “which appears to be f

airly debatable.” 20 “‘Fairly d ebatable’ is t he antithesis of arbitrary and capricious. If a decision is one which could be considered ‘f a i rly debatable,’ then it could not be considered arbitrary or capricious.” 21

17 F a lco n L im e, In c. , 8 3 6 S o . 2 d at 7 2 1 (q u o t in g M iss. B u rea u o

f N a rco tics v. S

ta cy , 8 1 7 S o . 2 d 5 2 3 , 5 2 6 (M iss. 2 0 0 2 )).

18 T h o m a s v. B d

. o f S u p erviso rs o

f P a n o la C ty. , 4 5 S o . 3 d 1 1 7 3 , 1 1 8 1 ( M iss. 2 0 1 0 ) (q u o tin g G en try v. C

i ty o f B a ld w yn , 8 2 1 S o . 2 d 8 7 0 , 8 7 3 (M iss. C t. A p p . 2 0 0 2 )).

19 Id . 20 C ity o f M a d iso n v. S h a n k s , 7 9 3 S o . 2 d 5 7 6 , 5 7 8 (M iss. 2 0 0 0 )

. 21 Id . (q u o tin g S a u n d

ers v. C ity o f J a ck so n , 5 1 1 S o . 2 d 9 0 2 , 9 0 6 (M iss. 1 9 8 7 )). 1 5¶40. W e f ind i t unnecessary to recount the m ultitude o f e v idence subm itted to the Board, but based on the discussion above, we f ind Appellants’ argum ent to b e without m erit. The Board’s decision c learly was supported by substantial evidence, and as a r esult “cannot be arbitrary and capricious

. ” 2 2 Moreover, because t he d ecision was supported b y s u bstantial evidence, the Board’s decision was, at the very least, “f airly debatable.” 2 3 Accordingly , the Board’s decision was n o t arbitrary or capricious, n or w a s it u n s u p p o rted by s u bstantial evidence, and, consequently , we are bound to af f irm

. III. Whether APAC is a n e cessary and indispensable party w hose w ithdraw al renders the appeal m oot requiring r eversal of t he Board’s decision. ¶41. Finally , Appellants argue that APAC is a necessary and indispensable party to t h is

a ppeal w hose withdrawal renders the appeal m oot, requiring reversal of the Board’s deci s i o n . W e m ust reject this argum ent. ¶42. The Appellants did not oppose APAC’s m otion to withdraw f rom this appeal. Had the Appellants been aware of som e reason APAC’s m otion should have been denied, the t im e to assert such reason was then. ¶43. Moreover, APAC has disclaim ed any interest i t once had. In its m otion to withdraw, APAC declared it “no longer wishes to continue,” that i t “no longer w ishes to spend its t im e and resources pursuing the appeal,” and that “the property itself is no longer as desirable as it was two y ears ago.” APAC f u rther proclaim ed that “if H&G wishes to continue with this

22 F a lco n L i m e, In c. , 8 3 6 S o . 2 d at 7 2 1

. 23 S h a n k s , 7 9 3 S o . 2 d at 5 7 8

. 1 6appeal a nd possibly use t he property

. . . f or purposes which the special e x ception approved, it can do so at its own expense, and APAC has no objection.” ¶44. A P A C ’ s w i t h drawal and unequivocal declaration that it will no longer pursue t h e

m ining operation dem onstrates—by itself —that, if APAC were ever an i nt e r e sted party , it holds that st a t u s n o l onger. And, the m ere f act that one appellee has withdrawn does not retroactively

create reversible error by the board of

supervisors or the circuit court. CONCLUSION ¶45. The Board’s decision to grant H&G’s application f or special e xception was supported b y s u bstantial evidence and was not arbitrary or capricious. W e also f ind no m er i t t o Appellants’ argum e nt that APAC is a n e c e s s a r y and indispensable party to this appeal. Accordingly , w e af

f irm the circuit court’s judgm e nt af f irm ing the Board’s decision granting H&G the special exception. ¶46. AFFIRMED. WALLER, C.J., R A N D OLPH, P.J., KITCHENS, KING, COLEMAN, MAX W ELL AND BEAM, JJ., CONCUR. LAMAR, J., NOT PARTICIPATING.

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