IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2014-CP-00118-COA HENRY W. KINNEY APPELLANT

v. HARRISON COUNTY BOARD OF SUPERVISORS APPELLEE

DATE OF JUDGMENT: 12/31/2013 TRIAL JUDGE: HON. LAW RENCE PAUL BOURGEOIS JR. COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: HENRY W

. KINNEY (PRO SE) ATTORNEYS FOR APPELLEE: TIM C. HOLLEMAN PATRICK TAYLOR GUILD NATURE OF THE CASE: CIVIL - REAL PROPERTY TRIAL COURT DISPOSITION: AFFIRMED THE DECISION OF THE HARRISON COUNTY BOARD OF SUPERVISORS DISPOSITION: AFFIRMED – 09/01/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., BARNES AND JAMES, JJ. JAMES, J., FOR THE COURT: ¶1. H e n r y W. K i n n e y a ppeals pro se f rom a n order of the C ircuit Court of Harri s o n County a f

f irm ing t he decision of the Harrison County Board o f Supervisors ( B o a r d) sustaining the Harrison County Planning C o m m ission’s (Com m ission) g rant o f a c onditional

use perm it to Chase Mosely d/b/a Oak Crest Mansion Inn (Oak Crest). F inding no error, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. The Appellant, K inney , resides at 4395 Menge A venue, Pass Christian, Mississippi.The Appellee, Oak Crest, ope r ates a bed and breakf ast on a twelve-acre parcel of land located at 5267 M enge Avenue, Pass Christian, Mississippi, under a c onditional use perm it
to operate as a r

ural resort t hat w as granted in 2007. Oak Crest s ought and received the Com m i ssion’s approval through a supplem ental applicatio n i n 2010 to add am enities to provide to its custom e rs, including a salon and spa. ¶3. On August 24, 2 0 12, Chase Mosely , o wner of O a k C r e s t , f i l e d a c onditional use
perm it application to a m e nd its existing conditional use p erm i t to the Harrison County Zoning D epartm ent “requesting approval to add approxim ately 2,400 square f e e t t o the barn carriage space f

or m a king handcraf

ted spa, bath a nd body p r o d u cts to be used in the salon and spa.” According to t he application, i n t his a d ditional 2,400 square f eet, the Pass Christian Soap C om

pany (Soap Com

pany ), a s eparate entity f r o m O a k Crest, w ould be
perm itted to m ake handcraf ted s pa, bath, and body

products and would allow the guests to observe the handcraf

ting of t he products a s an am enity to Oak Crest. Custom ers would also be able to participate in classes to learn how to m ake the products. The p roducts would be allowed to be sold in the salon a nd spa as part of its operations, but the Soap Com p any would
not operat e a retail store f or its products on the property

. The S oap Com pany w ould be
perm itted to sell products that it m ade at Oak Crest at its own retail store located on Davis Avenue in Pass Christian. ¶4. Several hearings were held bef ore the C om m ission where “substantial evidence and debate b y all par t i e s w a s p resented and considered.” The precise issue bef ore the Com m i ssion was whether the presence of the Soap C om pany was a “recreational am enity ”

2o r a c c essory to the prim ary use of Oak Crest, w hich is a rural r esort. Harrison Coun t y

Zoning Ordinance 2 0 3 allows rural resorts to p rovide “recreational am e nities of a r u r al nature.” Harrison County Z oning Ordinance section 203 p rovides the def inition of a "Rural Resort" to be:
A private establi shm ent c onsisting of a detached structure located in a rural setting in which lodging i s available t o transient guests f o r com pensation as the principal u se, and which m ay include m eeting f acilities, restaurant, b a n q u et hall, and/or recreational am enities of a rural nature. ¶5. The C om m ission determ ined that the Soap C o m p a n y ’ s p resence, a s def

ined in Oak Crest’s application, was an appropriate recreational am e nity to Oak C rest, and granted Oak C r e s t a conditional use perm it. T he Com m ission f ound that g ranting the conditional us e perm it to allow the Soap Com pany to ma k e handcraf

ted spa, bath, and body products, and guests of O ak Crest to observe the handcraf ting of the products and participate in classes to learn how to m a ke the products, w o u l d be a perm issible recreational am e n ity of a rural
nature. ¶6. Kinney appeale d t h e C o mmi s s i o n ’ s d e c i s i o n to the Harrison County Board of Supervisors. On January 7, 2013, a hearing w as held bef ore the B oard, and the issue again

was whether the presence of the Soap Com pany was an appropriate recreational am enity of Oak Crest. Supervisor Ladner of the Board stated:
But the bottom line i s t he issue of whether we determ ine that to be a recreational am e nity

. And we’ve had s trong argum e nts, I will recognize, on both sides, very convincing, very dif f icult. But I think the bottom line i s – and I would assum e i t’s sort of – we’re in a position to m ake a subjective decision here based on w hat we’ve h eard and what I ’ve heard f rom both s i des, whether that is by – whether we can def

ine that as a recreational am enity

.

3¶7. The B oard af f irm ed the Com m ission’s g rant of a conditional use perm it to Oak Crest by a vote of f

our to one af

ter considering the “very convincing” and “strong argum ents” on both sides. The Board f

o und t hat section 203 of the zoning ordinance provided that a rural
resort m a y include m e eting f a cilities, restaurants, ban q u e t h a l l s , a

n d / o r r e c reational am enities of a rural nature. T he Board determ ine d t h a t t h e p roposed a dditional uses sought by Oak Crest were “ recreational am enities of a rural nature,” w hich would attract guests to the bed and breakf

ast. Kinney appealed to t h e c i r c u it c ourt u nder Mississippi Code Annotated section 11-51-75 (Rev. 2014). ¶8. The issue on appeal bef ore the circuit court was whether the decision g r a n t i n g the conditional use perm it a llowing the presence o f the Soap Com pany as a recreational am enity of a rural nature was f

airly debatable. The circuit court f o und that “[ t]he subjective nature of the decision of the Board in this case m akes it f airly debatable,” and “ the Board m ust be given a great deal o f def erence when m ak i n g d e c isions with regard to zoning, and once

m ade, such d ecisions should be presum ed appropriate and in the best interests of t he public.” Accordingly , the circuit court af f irm ed the Board’s decision f inding that the decision to grant the condit i o n a l u s e perm it w as supported by substantial evidence a nd was n ot arbitrary , capricious, discrim i natory , or bey ond its legal authority

. STANDARD OF REVIEW ¶9. “W hen the decision of a local z o n i n g a u t h o rity is appealed to the circuit court, the circuit court acts as an a

ppellate court.” Jones v. Lutken , 62 S o. 3d 455, 457 (¶8) (Miss. Ct. App. 2011). This Court and the c i r c u i t c o u r t m ust apply the sam e s tandard of review. Id.

4“W hile zoning o rdinances are legislative ac t s , c o nditional use perm its are adjudicative in

nature.” City of Olive Branch Bd. of Aldermen v. Bunker , 733 So. 2d 842, 844 (¶6) (Miss. Ct. App. 1998). “In reviewing the Board' s decision, we will n ot reverse u nless the decision

was unsupported by substantial evidence; was arbitrary o r c a pricious; was bey ond the Board’s scope or powers; or violated the constitutional o r statutory rights of the aggrieved party .” I d

. "If the Board' s decision to grant or deny a perm i t i s b a s e d u p o n s u bstantial evidence, then it is binding upon an appellate court." Vulcan Lands Inc. v
. Olive Branch , 912 So. 2d 198, 201 (¶11) (Miss. Ct. App. 2005). “W e can reverse the zoning authority ' s decision only i f that decision w as arbitrary , capricious, discrim inatory , illegal, or was not supported by substantial evid e n c e . ” J o n es , 62 So. 3d at 457 (¶8). “Indeed, if the z oning a uthority ' s decision appears f

airly debatable, the decision m ust be af f i rm ed.” Id. DISCUSSION ¶10. The issue bef

ore u s is whether the Board’s decision to sustain the Com m i ssion’s grant of a conditional use perm it to Oak Crest to allow the Soap Com pany ’s presence on its resort

as a recreational am enity , as described i n its a pplication, was arbitrary , capricious, discrim inatory , illegal, or not supported by substantial evidence. ¶11. Kinney argues t h a t ma n u f a c t u r i n g a n d industrial operations of any ty p e are not
perm itted or considered conditional uses withi n D i s t rict E-1, where Oak Crest is located. Specif ically , Kinney argues t hat th e c o n d itional u se perm i t granted to Oak Crest is not a perm itted conditional use am ong t h e e n u m erated allowable uses i n the Harrison County Zoning Ordinance, which has resulted in i llegal zoning. Allowable conditional uses in

5District E-1 include, am ong others, bed and breakf asts and rural resorts. ¶12. Oak Crest’s application f or the conditi o n a l u s e p e r mit does not include the term
“m anuf acturing.” At the f

ull hearing bef

o re the Bo a r d , t h e Oak Crest’s attorney was q u e s t i o n e d r e garding whether m anuf acturing would occur at Oak Crest. Oak C rest’s attorney conf irm ed that all soap m aking i s entirely done by h and and that the Soap Com pany has no intention t o conduct retail or m anuf a cturing at Oak C rest. O ak Crest’s application sim ply
states t hat it anticipates that “spa, bath and body products would be display ed f or sale in the salon and spa f

a cility .” M o r eover, the a

pplication provides that Oak C rest plans to “utilize this new space to f

oster a gene r a t i o n of creativity by hosting soap m a king classes, dem onstrations and tours.” The purpose of the renovation and addition at Oak Crest was “to exhibit, dem onstrate and perf orm the art of h andcraf

ting soap and bath products by the Pass Christian Soap Co.” ¶13. The Com m ission and Board were f aced with in t e r

p r e t i n g t h e t erm

“recreational

am enities of a rural nature.” The circuit court f ound that the Com m ission’s and t he Board’s interpretation that a handcraf ted-soap-m aking operation of f ering observation and classes to the rural resort constitutes a “recreational am enity ” was reasonable and should b e af f orded great def e r ence. M oreover, the c ircuit court noted that t he B oard had a thorough inquiry with all parties, including K inney , as to what could constitute a recreational am enity , as evidenced by the f ollowing exchange: Supervisor Ladner: W ould craf ts under y ou def

inition, be recreational – Mr. Kinney : Yes.

6Supervisor Ladner: – f or exam ple, basket weaving? Mr. Kinney : Absolutely

.

. . . . Supervisor Martin: Candle m aking, whatever. But – Mr. Kinney : Candle m aking or basket weaving. Supervisor Rocko: Ceram ics. Supervisor Ladner: Craf ts would be a recreational am enity

. Supervisor Martin: Soap m aking.
Mr. Kinney : And, quite honestly , soap m aking, if they wanted to have

a class that was i ncidental to the principle use – now, the principle u se is lodging f

or guests f

or c om pensation. So if they want to have s o ap m aking classes, that, to m e, would be a recreational am enity

. ¶14. Thus, K inne y c o n c e d e d that soap-m aking c lasses would q ualif y as a “recreational

am enity .” Essentially , Kinney a rgues that Oak Crest’s application constitu t e s i llegal

m anuf acturing as opposed to an allowabl e r e c reational am enity

. Sim ply put, Kinney disagrees with t h e C o m m i ssion’s and Board’s interpretations o f t he phrase “recreational

am enities of a rural nature.” However, we cannot reweigh the f acts, nor m ay we substitute

our judgm ent f

or t hat of the lower tribunal. See Vulcan L ands Inc. , 9 12 So. 2d at 202 (¶16).
M oreover, a local authority ’s reasonable interpretation of a zoning o rdinance should be af f orded great def

erence. H all v. City of

Ridgeland , 3 7 So. 3d 25, 4 0-41 ( ¶52) (Miss. 2010). Af f ording the Board great def erence, we f

ind t hat a reasonable interpretation of the zoningordinance def

in i t i on of “recreational am enities o f a rural nature” c ould include the Soap

7Com

pany ’s presence as described in Oak Crest’s application f or its conditional use perm it. ¶15. T h e C o mmi s s i o n ’ s decision to approve Oak Crest’s request f o r a conditional us e perm it w as not arbitrary or c a p r i c ious a nd was supported b y substantial evidence. Substantial evidence m eans m ore than a scintilla or a suspicion. Attala Cnty. Bd. of Sup'rs v. Miss. State Dep't of Health , 867 So. 2d 1019, 1023 (¶16) (Miss. 2004). It wa s the Com m ission’s and
Boa r d ’ s d e c ision af

ter considering over 175 pages o f exhibits and the a rgum ents of the parties that Oak Crest’s request w ould constitute a recreational am enity of a rural nature and
not illegal m an u f

a c t u r i n g . In Barnes v. Board of Supervisors, DeSoto County , 553 So. 2d 508, 512 (Miss. 1989), the c ourt noted: “A f ull and c om

plete hearing was awarded each side, with f u ll and com

plete due process rights a f f o rded according to constitutional standards[ ,] and theref ore the a ction o f the Board was not arbitrary , c apricious, unreasonable o r illegal.” The sam e due-process rights were af f orded to the parties in this c ase. Accordingly , we f ind that the Com m ission’s and B oard’s interpretation of what constitutes “recreational am enities of a rural nature” was based on m ore than a scintilla or a suspicion. ¶16. K i n n e y a r g u es t hat Oak C rest f ailed to m eet its burden of proof f or o b t a i n i n g a conditional use perm it, advancing the sam e a r g u me n t t hat m a nuf acturing of any ty

pe is prohi b ited in the district. The Com m ission and Board determ i ned that Oak C rest m et its burden of proof through t h e g r a n t of the conditional use perm i t. See Barnes v
. Board of Sup’rs, DeSoto Cnty. , 553 So. 2d 508, 511 (Mis s . 1 9 8 9 ) (holding that the grant of the conditional use perm it and im p osing conditions upon the g rant of t hat perm it w as tantam ount
to a f inding of f

act by t he Board that the r equirem ents necessary to grant the perm it were

8m et). Thus, this argum ent is without m erit.

¶17. K i n n e y a l s o a r g u e s t h at the Board’s grant of t he c o nditiona l u s e p e r mi t w a s inappropriate under t he zoning ordinance because it was an am endm ent t o a n e x i s ting conditional use perm i t, and if the soap m aking was a recreational am enity , a new c onditional
use perm it would not be necessary . However, the application f or the am e nded c onditional

use perm i t was r equired because Oak C rest was seeking a 2,40 0

- square-f oot addition to a building that was not under the prior conditional use p e r mi t w h ere the proposed am enity would be provided. Oak Crest’s application to am e n d i t s c o n d i tional use perm it was not solely based on the presence o f the Soap Com pany on its pr o p e r t y . The application stated the purpose of t he addition was to provide its guests with an additional am enity

. Thus, this
argum ent is without m erit. ¶18. W e agree with the circuit court’s f inding that the Board’s subjective decision can only be construed as f

a irly de b a t a b l e . “Fairly d ebatable is the antithesis of arbitrary and capricious.” S

aunders v
. City of

Jackson , 511 S o. 2 d 902, 906 (Miss. 1987). I ndeed, where the question is f

airly debatable, the decision of the B oard m u st be af f irm ed. See Jones , 62 So. 3d at 457 (¶8). Accordingly , we f ind that the Board' s decision w as f airly d ebatable and af f irm the judgm e nt of

the circuit court. ¶19. T H E J U D G M E N T OF THE HARRISON COUNTY CIRCU I T C O U R T I S AFFIRMED. A L L COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT. LEE, C.J., IRVING AND G R I F F I S, P.JJ., BARNES, I SHEE, CARLTON, MAX W ELL, FAIR AND WILSON, JJ., CONCUR.

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