IN THE SUPREME COURT OF MISSISSIPPI

NO. 1999-CA-00829-SCT

CONSOLIDATED WITH

NO. 1999-CA-00830-SCT

AND

NO. 1999-CA-00831-SCT

CITY OF MADISON, MISSISSIPPI

v.

WILLIAM J. SHANKS AND DONNA Y. SHANKS

DATE OF JUDGMENT: 11/07/1997

TRIAL JUDGE: HON. SAMAC S. RICHARDSON

COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: JOHN HEDGLIN

ATTORNEY FOR APPELLEES: PHILLIP M. NELSON

NATURE OF THE CASE: CIVIL - OTHER

DISPOSITION: REVERSED - 7/27/2000

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE PRATHER, C.J., MILLS AND DIAZ, JJ.

DIAZ, JUSTICE, FOR THE COURT:

¶1. The Board of Aldermen of the City of Madison voted to rezone three parcels of land owned by William

J. and Donna Y. Shanks. The Mayor then filed a Statement of Objections, effectively vetoing the Board's

decision. The Shankses appealed to the Madison County Circuit Court which reversed the Mayor's

decision, finding that the Mayor had acted arbitrarily and capriciously in vetoing the Board's actions. On

appeal, the City of Madison contends (1) the Mayor's veto is not an "action" of the governing authorities

from which the Shankses may appeal, (2) alternatively, if the Mayor's veto constitutes an appealable

"action," the Shanks did not effectuate a timely appeal, (3) the Shankses failed to satisfy the minimum

evidentiary requirements to justify approval of a rezoning decision, and (4) the circuit court erred in

substituting its judgment for the governing authorities of the City in making a legislative determination

regarding zoning issues based solely on evidence outside the record. We find that the Mayor did not act

arbitrarily in vetoing the Board's decision to rezone the parcels of land. Accordingly, we reverse the

judgment of the circuit court.

FACTS
¶2. Though there is no evidence of it in the record, both parties maintain that on January 16, 1992, the City

of Madison adopted a new comprehensive zoning ordinance and zoning plan. At that time, William and

Donna Shanks owned three parcels of land located in the City of Madison: Parcel One, consisting of .792

acres fronting 126.42 feet along the west side of U.S. Highway 51 and lying east of the Illinois Central

Railroad track and north of Hoy Road; Parcel Two, comprising 4.22 acres lying west of U.S. Highway 51,

fronting the east side of the railroad track and lying north of Hoy Road; and Parcel Three, made up of .611

acres fronting the west side of U.S. Highway 51and lying east of the railroad track and north of Hoy Road.

At the time of the adoption of the new comprehensive zoning plan, the three parcels at issue were zoned A1 for agricultural use.

¶3. On May 12, 1994, the Shankses filed rezoning applications with the City of Madison, seeking to rezone

Parcel One from A-1, Agricultural, to I-1, limited Industrial, and to rezone Parcels Two and Three from A1 to C-2, general Commercial. Following a public hearing, the Madison Planning and Zoning Commission

recommended that all three applications be approved.

¶4. On June 21, 1994, the Mayor and Board of Aldermen conducted their monthly meeting at which the

Board approved the Shankses' three rezoning applications. On June 27, 1994, Madison Mayor Mary

Hawkins filed a Statement of Objections, effectively "vetoing" the Board's decision. Mayor Hawkins

maintained that the Board had erred in approving the re-zoning applications, as the Shankses made no

showing that (1) there was a mistake in the original zoning, or (2) the character of the neighborhood had

changed to such an extent as to justify rezoning and that a public need existed for rezoning.

¶5. The Board of Aldermen met on July 5, 1994, and acknowledged the Mayor's veto. Bill Shanks

appeared at the meeting and agreed to reserve his comments for the next Board meeting. At the Board's

August 2, 1994, meeting, the Statement of Objections was placed on the "consent agenda" which was

unanimously approved. When asked by the Mayor if he wished to make a motion to override her veto of

the Shankses' rezoning applications, Alderman Dunn indicated that he did not.(1)

¶6. On August 12, 1994, the Shankses filed a Bill of Exceptions in the Madison County Circuit Court. The

circuit court reversed the Mayor's veto, finding that the Mayor had acted arbitrarily and capriciously. It is

this judgment from which the City of Madison appeals.

STANDARD OF REVIEW

¶7. It is well-settled law that before a zoning board may reclassify property from one zone to another there

must be proof that either (1) there was a mistake in the original zoning, or (2) that the character of the

neighborhood has changed to such an extent as to justify reclassification, and there was a public need for

rezoning. Fondren North Renaissance v. Mayor, 749 So. 2d 974 (¶ 6) (Miss. 1999). The burden of

proof to support the rezoning is upon the applicant, and both propositions must be proven by clear and

convincing evidence. City of Biloxi v. Hilbert, 597 So. 2d 1276, 1280 (Miss. 1992).

¶8. The zoning decision of a local governing body which appears to be "fairly debatable" will not be

disturbed on appeal, and will be set aside only if it clearly appears the decision is arbitrary, capricious,

discriminatory, illegal, or is not supported by substantial evidence. Id. at 1280. "'Fairly debatable' is the

antithesis of arbitrary and capricious. If a decision is one which could be considered 'fairly debatable,' then it

could not be considered arbitrary or capricious, although we continue to use both standards." Saunders v.
City of Jackson, 511 So. 2d 902, 906 (Miss. 1987).

DISCUSSION

I. WHETHER THE MAYOR'S VETO IS AN "ACTION" OF THE GOVERNING

AUTHORITIES FROM WHICH THE SHANKSES MAY APPEAL

¶9. The City of Madison contends that the Mayor's veto of the Board's decision is not an action which may

be appealed. It argues that the Mayor's veto "voids" any action taken by the Board and thus, there is no

action from which to appeal. The City claims, "A Mayor's veto of a Board action does not result in an

action by a municipality; instead, the veto nullifies the action of the Board. Once the Mayor has exercised

her veto, the matter stands as if no action whatsoever had been taken. Therefore, there is nothing for the

Shankses to appeal."

¶10. Miss. Code Ann. § 11-51-75 (1972) describes the manner in which appeals are taken from

judgments or decisions of the board of supervisors or municipal authorities of a city, town, or village:

Any person aggrieved by a judgment or decision of the board of supervisors, or municipal

authorities of a city, town, or village, may appeal within ten (10) days from the date of adjournment

at which session the board of supervisors or municipal authorities rendered such judgment or decision,

and may embody the facts, judgment and decision in a bill of exceptions which shall be signed by the

person acting as president of the board of supervisors or of the municipal authorities. . . .

(emphasis added). The issue in the present case is whether the mayor is a "municipal authority" whose

actions may be appealed under Miss. Code Ann. §11-51-75 (1972). Both the statute and relevant case

law suggest that this question should be answered affirmatively.

¶11. The source of the mayor's veto power is Miss. Code Ann. § 21-3-15 (1990) which provides:

Ordinances adopted by the board of aldermen shall be submitted to the mayor. The mayor shall,

within ten (10) days after receiving any ordinance, either approve the ordinance by affixing his

signature thereto, or return it to the board of aldermen by delivering it to the municipal clerk together

with a written statement setting forth his objections thereto or to any item or part thereof. No

ordinance or any item or part thereof shall take effect without the mayor's approval, unless the mayor

fails to return an ordinance to the board of aldermen prior to the next meeting of the board, but no

later than fifteen (15) days after it has been presented to him, or unless the board of aldermen, upon

reconsideration thereof on or after the third day following its return by the mayor, shall, by a vote of

two-thirds (2/3) of the members of the board, resolve to override the mayor's veto.

Miss. Code Ann. § 21-3-15 (1990).

¶12. A mayor's power to approve or veto actions of a municipal legislative body is legislative in nature.

McQuillin, Municipal Corporations § 16.42 (3rd ed. 1989). As one court has explained, "[t]he mayor's

veto, like the veto of the President or a state governor, is undeniably a part of the legislative process. It

differs only in that it takes place on the local level. When the mayor exercises his veto power, it constitutes

the policy-making decision of an individual elected official. It is as much an exercise of legislative

decision-making as is the vote of Congress, a state legislator, or a city councilman." Bryant v.

Nichols, 712 F. Supp. 887, 891 (M.D. Ala. 1989) (emphasis added).
¶13. There exists no Mississippi case law on point which explicitly holds that a mayor's veto is an

appealable action of a municipal authority as contemplated by § 11-51-75(1972).(2) However, there is

case law which suggests that a mayoral veto is subject to judicial review. In Robinson v. Utilities

Comm'n, 487 So. 2d 827, 829 (Miss. 1986), this Court held that the Utilities Commission of the City of

Columbus was not a municipal authority within the meaning of Miss. Code Ann. § 11-51-75 (1972). An

employee of the Utilities Commission of the City of Columbus brought suit in the Lowndes County Justice

Court arguing that he was entitled to three weeks of vacation rather than two. Id. at 827. The justice court

dismissed the suit without prejudice and the employee appealed to the Circuit Court of Lowndes County

which entered an order dismissing the cause. Id. at 828. The circuit court found that because the Utilities

Commission was a municipal authority as contemplated by Miss. Code Ann. § 11-51-75 (1972), the

employee was required to appeal the justice court's decision within ten days. Id. This Court reversed,

explaining that "[i]n sections under Title 21, Miss. Code Ann. (1972), the references to 'municipal authority'

mean the mayor and board of aldermen, city council, or other such form of government." Id. at 829.

Accordingly, because the Utilities Commission was not a municipal authority, the failure to appeal within ten

days did not warrant dismissal. Id. at 830.

¶14. Though the City argues that there is no final order from which the Shankses may appeal, "[t]his Court

has said that any act is appealable. It does not have to be an order or formal judgment." Benedict v. City

of Hattiesburg, 693 So. 2d 377, 380 (Miss. 1997). "Mississippi cases have referred to 'actions' of

counties and municipalities as appealable events." South Cent. Turf, Inc. v. City of Jackson, 526 So. 2d

558, 561 (Miss. 1988).

¶15. This Court has identified the following as municipal authorities within the meaning of § 11-51-75: "the

mayor and board of aldermen, city council, or other such form of government." Robinson, 487 So. 2d at

829. Because the mayor is a municipal authority, it follows that her actions are subject to review.

Moreover, this Court has given a broad interpretation to §11-51-75 (1972), writing, "[w]e are of the

opinion that any act of a county or municipality leaving a party aggrieved is appealable under § 11-51-75

where . . . all issues of the controversy are finally disposed of by Order of the City Council." Garrard v.

City of Ocean Springs, 672 So. 2d 736, 738 (Miss. 1996). A finding that the mayoral veto is subject to

review is consistent with both Robinson and the liberal construction consistently afforded the statute.

II. WHETHER THE SHANKSES EFFECTUATED A TIMELY APPEAL FROM THE

MAYOR'S ACTION

¶16. Alternatively, the City contends that if the Mayor's veto is indeed appealable, then the Shankses are

not entitled to judicial review because they did not effectuate a timely appeal. The City maintains that the

Mayor's veto became final on June 27, 1994, the date it was delivered to the city clerk. The City notes that

the Shankses did not file their notice of appeal and bill of exceptions until August 12, far in excess of the

ten-day period allowed under the statute.

¶17. The Shankses, however, argue that the veto did not become final until August 2, 1994, the date the

Board proceeded to "ratify the Veto of the Mayor as aforesaid by adopting the 'consent agenda' whereon

the matter of the Mayor's Veto and Statement of Objections to the prior action of the Board with respect to

said Rezoning was placed prior to said regular meeting of the Board." They argue that because the Board

retains the power to override the veto, the veto is not final until the Board either accepts the veto, which it

did in this case, or votes to override it. According to the Shanks, their appeal was timely, as the Board
voted to accept the veto on August 2.

¶18. The statute provides that a party must appeal "within ten (10) days from the date of adjournment at

which session the board of supervisors or municipal authorities rendered such judgment or decision . . . ."

Miss. Code Ann. § 11-51-75 (1972).(3) In the instant case, the mayor's veto does not fit neatly within the

language of the statute, as it did not come at a "session" of the municipal authorities. However, we find that

the veto became final following the Board's August 2, 1994 "session" at which it accepted the veto and

refused to override it.

¶19. "The statute's ten (10) day time limit in which to appeal the decision of a Board is both mandatory and

jurisdictional. . . . Where an appeal is not perfected within the statutory time constraints no jurisdiction is

conferred on the appellate court; and the untimely action should be dismissed." Newell v. Jones County,

731 So. 2d 580, 582 (Miss. 1999). There is no case law addressing the point in time at which a mayoral

veto becomes final for purposes of appeal. However, there are a number of cases which discuss the

statutory ten day period in which a party may appeal actions taken by municipal authorities in other

contexts.

¶20. In Sanford v. Board of Supervisors, 421 So. 2d 488, 489 (Miss. 1982), fifty-two people filed a

petition with the Covington County Board of Supervisors seeking to have a road constructed connecting the

property of one of the petitioners with an existing public road. The Board entered an order appointing a

committee to "lay out and mark said road and report their proceedings in writing to the Board at its next

meeting . . . ." Id. A landowner across whose land the proposed road would be built appealed to the circuit

court which recognized "a crucial feature of the case in stating that he questioned 'whether the order

appointing the Committee would be a final order' subject to an appeal." Id. On appeal to this Court, we

held that the appeal was premature, as "[t]here can be no valid appeal until there has been a judgment

disposing of the case. . . . A final judgment has been defined by this Court as a judgment adjudicating the

merits of the controversy which settles all the issues as to all the parties." Id.

¶21. Similarly, in Garrard v. City of Ocean Springs, 672 So. 2d at 737, the Mayor and Board voted on

February 20, 1990, to turn over the American Legion Hut to the Parks Commission. The minutes of the

meeting were approved at a City Council meeting on March 6, 1990. Id. Several individuals filed a bill of

exceptions against the City of Ocean Springs on October 22, 1991. Id. The Jackson County Circuit Court

dismissed, though the grounds for its decision were unclear. Id. at 738. In holding that the Board's action

became final when it approved the motion to transfer the property to the Parks Commission, this Court

explained that "[w]e are of the opinion that any act of a county or municipality leaving a party aggrieved is

appealable under § 11-51-75 where . . . all issues of the controversy are finally disposed of by Order of the

City Council." (quoting South Cent. Turf, Inc., 526 So. 2d at 561.

¶22. These decisions focus on the finality of a municipal authority's action. In the instant case, the Mayor's

veto became "final" when the Board declined to override it at its August 2, 1994 meeting. Until then, the

veto was subject to override. At the Board's August 2 meeting, the Mayor's Statement of Objections was

placed on the consent agenda which was voted on and accepted unanimously by the Board. The following

appears in the minutes of the meeting:

At this time, Mayor Hawkins addressed Alderman Dunn for discussion regarding the veto of Mr.

Williams Shanks' rezoning applications, #94008, #94009, and #94010. Alderman Dunn stated that he

felt the City is inconsistent on rezoning applications and that he did not want to set an unhealthy
precedent. Mr. Shanks attended the meeting and presented photos of properties surrounding the land

involved in these rezoning applications. Mayor Hawkins asked Alderman Dunn if he would like to

make a motion to override her veto of these rezoning applications. He stated that he would not.

¶23. Other cases discussing when the ten day period within which to appeal an action of a municipal

authority begins to run include City of Oxford v. Inman, 405 So. 2d 111, 114 (Miss. 1981) ("the filing of

the bill of exceptions on June 13, 1980 was timely because the rezoning ordinance did not become effective

until written, signed, and formally adopted on June 3, 1980. . . ."); South Cent. Turf, Inc., 526 So. 2d at

563 ("the City of Jackson was without authority to reconsider the matter which it had already finally

decided on April 8, 1986, when the Mayor signed the minutes of the April 1 meeting thereby giving effect

to the Council's decision to award the contract to E-Z-Go."); J.H. Parker Constr. Co. v. Board of

Aldermen, 721 So. 2d 671, 674 (Miss. Ct. App. 1998) ("[t]he ten day period did not commence until

April 11 when the City executed the contract with Lampkin Construction.").

¶24. The mayor's veto became final for purposes of perfecting an appeal under Miss. Code Ann. § 11-51-

75 (1972) on August 2, 1994 when it was accepted by the Board. Consequently, the Shankses timely

effectuated an appeal on August 12. This assignment of error is without merit.

III. WHETHER THE SHANKSES SATISFIED THE MINIMUM EVIDENTIARY

REQUIREMENTS TO JUSTIFY APPROVAL OF A REZONING DECISION

¶25. The City contends that the circuit court erred in reversing the decision of the Mayor. It argues that the

Mayor correctly vetoed the Board's action, as there was no evidence that either (1) there was a mistake in

the original zoning or (2) the character of the neighborhood had changed to such an extent as to justify

rezoning and that a public need existed for rezoning. We agree.

¶26. In her Statement of Objections, Mayor Hawkins found that there was no evidence that the character

of the neighborhood had changed to such an extent as to justify the rezoning and that a public need for the

rezoning existed. She explained:

First, the person seeking the change must demonstrate a change in the character of the surrounding

neighborhood or an error in the assignment of the existing zoning classification. Clearly, the first

criterion is not met. The present zoning map of the City of Madison took effect on January 16, 1992.

There has been no change whatsoever in the character of the neighborhood since the present zoning

map was adopted, and there is no suggestion in the record that original error was the basis of the

application for rezoning. In fact, the petitioner recently constructed a barn on the subject property

which demonstrates that the present agricultural classification is correct.

Therefore, the application for rezoning is defective because even the first criterion for rezoning has not

been met.

Moreover, the second criterion for rezoning is that a public need must be demonstrated. There is an

abundance of property between Highway 51 and the Illinois Central right-of-way which is already

zoned I-1 and much of that property is still undeveloped. It is apparent that the City of Madison has

not only sufficient property zoned I-1 in that area, but an excess.

In determining whether the Mayor acted arbitrarily and capriciously in vetoing the Board's action, this Court

must necessarily consider the evidence presented to the Board in support of the rezoning applications.
Accordingly, we must determine whether the record supports rezoning of the property in question on the

basis of a substantial change in the character of the neighborhood and a public need for rezoning.

¶27. The following appears in the minutes of the meeting at which the Board voted to approve the

Shankses' rezoning applications:

On behalf of Mr. Bill Shanks, Building Inspector Vic Gray-Lewis requested approval of rezoning

applications #94008, #94009, and #94010. He stated that the Planning and Zoning Commission had

approved them. Mr Shanks entered the meeting and expressed his intent to build mini warehouses at

this location. He stated that the warehouses would not be seen from Highway 51 and would be

located on the back portion of the property beyond the railroad tracks. He also stated that

surrounding residents had been polled and that no objections had been raised. Mayor Hawkins

indicated that she had sent a letter to Mr. Murray Fincher of the Planning and Zoning Commission

requesting a delay in action of these applications until Mr. Wayne Timmer and the Central Mississippi

Planning and Development District have reviewed them. Building Inspector Vic Gray-Lewis also sent

a letter to the Planning and Zoning Commission to this effect . . . .

The Board then voted to approve each of the three applications for rezoning. There is no evidence of

anything else which the Board may have considered in rendering its decision. Accordingly, we find that the

Mayor correctly vetoed the Board's approval of the Shanks' rezoning applications, as there is no evidence

that the character of the neighborhood changed to such an extent as to justify the rezoning and that a public

need for the rezoning existed.

¶28. In Board of Aldermen v. Conerly, 509 So. 2d 877, 884 (Miss. 1987), this Court explained that:

When we have before us an appeal from an action by a governing board rezoning property, unless the

record contains specific finding by such board that one or both of these two criteria have been met,

and in addition thereto sufficient evidence to support such finding, we will inevitably conclude that the

governing board acted arbitrarily, unreasonably and capriciously.

This Court later relaxed the rule somewhat, explaining that "while recognizing the desirability of specific

findings by the zoning authority on each considered issue, we will not reverse for a lack of such specificity

where a factual basis for the action is disclosed." Faircloth v. Lyles, 592 So. 2d 941, 945 (Miss. 1991).

We find no basis for the Board's actions in the instant case.

¶29. The Shankses maintain that there was sufficient evidence before the Board to justify the rezoning. They

note that the Board "not only heard and considered public comment as it is required to do, it had at its

disposal for consideration in its deliberations the official zoning ordinance and the official zoning map

showing the existing zoning classifications for the area of the Shanks property and the changes in zoning

classifications noted on the official map." The Shankses further allege that the Board had before it the

comprehensive future land use map "and other relevant information and/or documents pertaining to zoning

matters which were available to them at every meeting." Finally, the Shankses assert that the Board

members utilized their personal knowledge concerning the changed circumstances within the community.

¶30. The record of the proceedings before the Board does not support the Shankses' contentions. Though

the evidence described above may have been considered by the Board in approving the applications for

rezoning, the record does not reflect such consideration. This Court has recognized that "informality attends
rezoning proceedings, and governing board members may take into consideration their personal knowledge

and familiarity with their community . . . this by no means suggests that, in order to justify rezoning, a board

need not find the necessary criteria for rezoning by clear and convincing evidence and that it is not

necessary that such evidence appear in the record." Conerly, 509 So. 2d at 885.

¶31. In the applications for rezoning, the Shankses gave as their reason for requesting the rezoning their

desire to "comply with [the] land use plan." This Court found that compliance with the land use plan

evidenced a public need for rezoning in McWaters v. City of Biloxi, 591 So. 2d 824, 828 (Miss. 1991).

The Court held that "the record and, in particular, the future land use plans adopted by the city of Biloxi in

1970 and 1979 targeting Block 1 for commercial use and development, provide a substantial basis for the

conclusion reached by both the city council and the circuit judge that there exists an identifiable public need

for rezoning." Id.

¶32. Though there may be some evidence of a public need for the rezoning in the instant case, there is no

evidence in the record of a change in the character of the neighborhood. The Board acted arbitrarily and

capriciously in granting the Shankses' rezoning applications. It follows that the Mayor did not act in a similar

manner in vetoing the Board's actions.

IV. WHETHER THE CIRCUIT COURT ERRED IN SUBSTITUTING ITS JUDGMENT

FOR THE GOVERNING AUTHORITIES OF THE CITY IN MAKING A LEGISLATIVE

DETERMINATION REGARDING ZONING ISSUES, BASED SOLELY ON EVIDENCE

OUTSIDE THE RECORD

¶33. The City maintains that because the circuit court considered evidence outside the record on appeal, it

merely substituted its judgment for that of the governing authorities. As discussed above, the circuit court

erred in setting aside the Mayor's veto because of the lack of support in the record for the Board's decision.

Therefore, this Court does not address this issue.

CONCLUSION

¶34. For these reasons, the judgment of the Madison County Circuit Court is reversed.

¶35. REVERSED.

PRATHER, C.J., PITTMAN AND BANKS, P.JJ., McRAE, MILLS AND WALLER, JJ.,

CONCUR. COBB, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT

SEPARATE WRITTEN OPINION. SMITH, J., NOT PARTICIPATING.

1. This same sequences of events occurred in 1993 when the Shanks petitioned for rezoning of these same

three parcels. The rezoning applications were approved by the Board and vetoed by the Mayor.

2. This Court has, however, issued opinions discussing the scope of the mayoral veto power. Scott v.

Stater, 707 So. 2d 182, 185 (Miss. 1997) (city mayor had authority to veto appointment of municipal

judge, subject to override by two-thirds vote of the board of aldermen); Edwards v. Weeks, 633 So. 2d

1035, 1037 (Miss. 1994) (mayor of town operating under code charter had authority to veto order of

town's board of aldermen appointing town attorney); Rich v. McLauren, 83 Miss. 95, 101, 35 So. 337

(1903) (mayor had no power to veto election of police justice by board of aldermen), superseded by

statute as stated in Scott v. Stater, 707 So. 2d 182,186 (Miss. 1997).
3. Though this Court has not yet considered the issue, an opinion issued by the Attorney General states that

a mayoral veto must be overridden no later than the next lawfully convened regular or special meeting of the

Board. Miss. Att'y Gen. Op. No. 94-0809 (Feb. 15, 1995).